State v. Jessie Johnson ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1998 SESSION
FILED
August 20, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
)
Appellee, ) C.C.A. No. 02C01-9710-CC-00417
)
vs. ) Henry County
)
JESSE LEONARD JOHNSON, III, ) Honorable Julian P. Guinn
)
Appellant. ) (Possession of Marijuana and
) Cocaine with Intent to
) Manufacture, Sell or Deliver)
)
)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL L. AINLEY JOHN KNOX WALKUP
Ainley & Hoover Attorney General & Reporter
123 N. Poplar Street, Suite A
Paris, TN 38242 DOUGLAS D. HIMES
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
ROBERT “GUS” RADFORD
District Attorney General
24th Judicial District
P.O. Box 686
Huntington, TN 38344
OPINION FILED: _____________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The defendant, Jesse Leonard Johnson, III, appeals from the
sentencing determination of the Henry County Circuit Court. In that court, a jury
convicted the defendant of three counts of possession of controlled substances with
intent to manufacture, sell or deliver. One count involved possession of marijuana,
a Class E felony, and two counts involved possession of cocaine, Class B felonies.
After a sentencing hearing, the trial court sentenced the defendant as a Range I
offender. The trial court imposed the minimum sentences of one year on the
marijuana charge and eight years on each of the cocaine charges with all sentences
to run concurrently. The trial court ordered split confinement. It required the
defendant to be incarcerated for one year with the balance of the effective eight-
year sentence to be served on probation. The defendant received credit for his pre-
trial incarceration which, at the time of the sentencing hearing, was an unspecified
period of time in excess of 210 days. The trial court also imposed the fines
recommended by the jury: $3,000 on the marijuana count, $50,000 on one cocaine
count, and $10,000 on the other cocaine count, for a total of $63,000 in fines. 1
In this appeal, the appellant challenges the sentences as being too
harsh and the sentences and fines as being disproportionate to the plea-bargained
sentences imposed upon a co-defendant. After review of the case, we affirm the
trial court’s judgment.
We are able to glean very few facts from the record. The record
contains no transcript of the trial proceedings. Although the record includes a
transcript of the sentencing hearing,2 the presentence report contains very little
1
The maximum fine for the marijuana charge is $5,000, Tenn. Code
Ann. § 39-17-417(c)(1) (1997), and the maximum fine for the cocaine charge is
$100,000, Tenn. Code Ann. § 39-17-417(g)(1) (1997).
2
We note that on this appeal the presentence report appears in the
technical record prepared by the trial court clerk. As such, it is not authenticated by
the trial judge, nor does the report appear as an authenticated exhibit to the
sentencing hearing transcript. We have previously urged trial courts to authenticate
the report, as in the manner of an exhibit, and to append or exhibit the report to the
transcript of the sentencing hearing. See State v. Jerry Blaylock, No. 02C01-9602-
CC-00069, slip op. at 15, n.2 (Tenn. Crim. App., Jackson, Aug. 21, 1997), perm.
2
information about the nature and circumstances of the offense, and no one testified
about these issues at the sentencing hearing. From facts available, we discern that
the defendant was seventeen years of age on the date the offenses were
committed. His case was transferred to Circuit Court in order for him to be tried as
an adult, and he was eighteen years of age at the time of sentencing. The police
discovered the contraband inside a bag which was found on the front seat of a
vehicle in which the defendant and the adult co-defendant were riding. The co-
defendant pleaded guilty, was fined a total of $6,000, and apparently was released
immediately on probation upon receiving credit for time served. A stipulation filed
with the trial court reflects that the co-defendant claimed the contraband as his own.
Nevertheless, a jury tried the defendant and convicted him of the three counts of
possession of illegal drugs.
The defendant’s issues must fail on the basis of waiver. First, the
defendant has waived the issues raised in this appeal because no transcript or
statement of the evidence presented at trial was included in the record. This
deletion is significant in view of the trial court’s declaration at the sentencing hearing
that he found the defendant, who apparently continued to maintain his innocence,
app. denied (Tenn. 1998). We recognize that the presentence report is mandated
by statute, see Tenn. Code Ann. §§ 40-35-203(b), -205(a) (1997), that the preparer
of the report is an officer duly appointed by the commissioner of correction, see
Tenn. Code Ann. § 40-35-204(a) (1997), and that the report “shall be filed with the
clerk of the court.” Tenn. Code Ann. § 40-35-209 (1997). These safeguards for the
reliable preparation and filing of the report facilitate the receipt and use of the report
by the trial court, as well as by the prosecution and the defense. However, the
availability and use of the report at the sentencing hearing in the trial court does not
always address the issue of the organization of the sentencing record for the
appellate review. In Jerry Blaylock, we made an analogy to the preservation of
evidentiary exhibits, which must be authenticated by the trial court and included with
the transcript of the evidence in order to be “in evidence.” Jerry Blaylock, slip op.
at 15, n. 2 (citing State v. Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987)).
While the mechanism for filing the presentence report as set forth in Code section
40-35-209 arguably distinguishes the practice in handling these reports from the
handling of traditional evidentiary exhibits, the better practice from the standpoint
of preserving an appellate record is for the sentencing trial judge to authenticate, or
at least identify, the report he or she is using, along with any approved
amendments. Such a practice helps to assure this court in conducting its de novo
review of the sentencing proceeding that it is reviewing the same document that was
before the trial court and that the document was in the same form, state of
completion or amendment, and supplemented by the same exhibits and/or
appendices.
3
untruthful in light of the “overwhelming” evidence at trial that the defendant had the
necessary intent to possess the contraband. The appealing party has an obligation
to prepare a record which conveys a fair, accurate and complete account of what
transpired with respect to the issues which form the bases of the appeal. Tenn. R.
App. P. 24(a); State v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992).
“Absent the necessary relevant material in the record an appellate court cannot
consider the merits of an issue.” State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn.
1993). We point out that the Sentencing Reform Act requires the trial court, in
sentencing a defendant, to consider among other factors, “[t]he evidence, if any,
received at the trial and the sentencing hearing,” Tenn. Code Ann. § 40-35-
210(b)(1) (1997), and this court’s de novo review on the record requires us, as well,
to consider these factors. The defendant’s failure to present a transcript or
statement of the trial evidence frustrates and in this case precludes our mandated
de novo review. “In the absence of an adequate record on appeal, this court must
presume that the trial court’s rulings were supported by sufficient evidence.” State
v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).
Second, the defendant’s issue concerning the disproportionality of the
fines imposed by the trial court is also waived because the defendant in his brief
cites no authority in support of his position. Tenn. R. App. P. 27(a)(7); Tenn. R. Ct.
Crim. App. 10(b); State v. Galloway, 696 S.W.2d 364, 369 (Tenn. Crim. App. 1985).
“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.” Tenn. R. Ct. Crim.
App. 10(b).
In light of these findings of waiver, we are not constrained to consider
further issues presented in the defendant’s appeal. However, we cannot resist
commenting that the defendant’s complaint about the harshness and unfairness of
his sentences is not sustainable. He received the minimum sentences on all
counts, the sentences run concurrently, and the defendant was accorded alternative
4
sentencing in the form of split confinement. The fact that his time served in
incarceration may exceed the incarceration time experienced by his co-defendant
is, in and of itself, irrelevant to a court’s consideration of the defendant’s sentencing.
See State v. Larry Harris, No. 278, slip op. at 3-4 (Tenn. Crim. App., Knoxville, May
24, 1988) (Harris’ sentence of 45 years supported by sentencing considerations
applied to him, regardless of twelve-year sentence imposed upon guilty-pleading
accomplice).
The judgment of the trial court is affirmed.
_____________________
CURWOOD WITT, JUDGE
CONCUR:
_________________________
JOE G. RILEY, JUDGE
_________________________
ROBERT W. WEDEMEYER, SPECIAL JUDGE
5