State of Tennessee v. Angela Colley - Dissenting

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 28, 2011
STATE OF TENNESSEE v. ANGELA COLLEY
Direct Appeal from the Criminal Court for Sullivan County
No. S56,033 R. Jerry Beck, Judge
No. E2011-00250-CCA-R3-CD - Filed December 5, 2011
J OHN E VERETT W ILLIAMS, J., dissenting.
I respectfully dissent from the majority opinion because I feel the defendant has not
included an adequate record for review. Here, as the majority has noted, the defendant has
failed to include the plea submission hearing transcript. I concluded this failure precludes
our de novo review of the defendant’s sentences and requires this court to presume that the
evidence supports her sentences.
In conducting a de novo review, we must consider (1) any evidence received at the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the Administrative Office of the Courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210 (2010); see
State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236
(Tenn. 1986).
On appeal, the defendant was required to prepare a record that conveyed a fair,
accurate and complete account of what transpired with respect to those issues that are the
bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).
The 1989 Sentencing Act, as amended, requires a sentencing court to consider evidence
received at the trial. T.C.A. § 40-35-210(b)(1). With a guilty plea involving a felony, the
evidence supporting the plea and finding of guilt is usually submitted by proffer or
stipulation. “For those defendants who plead guilty, the guilty plea hearing is the equivalent
of trial. . . .” State v. Keen, 996 S.W.2d 842, 843 (Tenn. Crim. App. 1999).
This court considers the guilty plea transcript to be vital to a de novo review and
potential resentencing by this court as required by law. See, e.g., State v. Alfred Gettner, No.
E2010-00104-CCA-R3-CD, Sullivan County, slip op. at 6 (Tenn. Crim. App. Aug. 19, 2011);
State v. Felix Tamayo, No. M2010-00800-CCA-R3-CD, Davidson County, slip op. at 3-4
(Tenn. Crim. App. May 16, 2011); State v. Gary M. Carter, No. M2006-02341-CCA-R3-CD,
DeKalb County, slip op. at 4 (Tenn. Crim. App. Feb. 21, 2008); T.C.A. § 40-35-40 (2010).
The “‘failure to include the transcript of the guilty plea hearing in the record prohibits the
court’s conducting a full de novo review of the sentence under [Tennessee Code Annotated
section] 40-35-210(b).’” State v. Farmer, 239 S.W.3d 752, 756 (Tenn. Crim. App. 2007)
(quoting State v. Shatha Litisser Jones, No. W2002-02697-CCA-R3-CD, Madison County,
slip op. at 4 (Tenn. Crim. App. July 14, 2003)). No matter how developed a record may
appear, we will never know the full extent unless the guilty plea transcript is included. “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); see also State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988).
The defendant is not entitled to relief.
________________________________
JOHN EVERETT WILLIAMS, JUDGE
-2-