State v. Willie Bailey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1999 SESSION
FILED
STATE OF TENNESSEE, * January 25, 2000
C.C.A. NO. W1999-01886-CCA-R3-CD
Appellee, * TIPTON COUNTY Cecil Crowson, Jr.
Appellate Court Clerk
v. * Hon. Joseph H. W alker, III, Judge
WILLIE BAILEY, * (Sentencing)
Appellant. *
For Appellant: For Appellee:
Cyburn H. Sullivan, III Paul G. Summers
112 East Liberty Attorney General and Reporter
P.O. Box 395 450 James Robertson Parkway
Covington, TN 38019 Nashville, TN 37243-0493
Patricia C. Kussman
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
James W. Freeland, Jr.
Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED: ____________________
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
On July 14, 1997, the appellant, Willie Bailey, was convicted by a jury
in the Tipton County Circuit Court of aggravated robbery and felony possession of a
handgun. On August 7, 1997, the trial court sentenced the appellant as a persistent
Range III offender to twenty-six years incarceration for the aggravated robbery
conviction and five years incarceration for the felony possession of a handgun with
the sentences to be served concurrently for an effective sentence of twenty-six
years incarceration in the Tennessee Department of Correction.
In this appeal as of right, the appellant presents the following
sentencing issues for our review: (1) Whether the trial court erred by sentencing the
appellant as a persistent offender; and (2) Whether the trial court misapplied certain
enhancement factors. Following a review of the record and the parties’ briefs, we
affirm the judgment of the trial court.
Initially, we note that the appellant did not include a transcript of the
trial in the record on appeal. Our review of the appellant’s sentence requires an
analysis of (1) the evidence, if any, received at trial and at the sentencing hearing;
(2) the pre-sentence report; (3) the principles of sentencing and the arguments of
counsel relative to sentencing alternatives; (4) the nature and characteristics of the
offenses; (5) any mitigating or enhancement factors; (6) any statements made by
the appellant on his own behalf; and (7) the appellant’s potential for rehabilitation or
treatment. Tenn. Code Ann. § 40-35-102, -103, and -210 (1997).
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d) (1997). This presumption of correctness is “conditioned upon
the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). The burden is upon the appellant to demonstrate the
impropriety of the sentence. State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995).
In this respect, failure to include a transcript of the trial makes it impossible for this
court to conduct an appropriate de novo consideration of the case or to determine
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whether the trial court erred relative to its determinations which were based in any
part on that evidence. State v. Hayes, 894 S.W.2d 298, 300 (Tenn. Crim. App.
1994); State v. Tate, No. 03C01-9110-CR-327, 1992 WL 281928, at *1 (Tenn. Crim.
App. at Knoxville, October 15, 1992).
Notwithstanding the absence of the transcript of the trial, the record
establishes that the trial court correctly sentenced the appellant as a persistent
Range III offender. See Tenn. Code Ann. § 40-35-107(a) (1997). The appellant
argues that the trial court misapplied three enhancement factors. Specifically, the
appellant contends and the State concedes that Tenn. Code Ann. § 40-35-114(10)
(1997) (defendant had no hesitation about committing a crime where the risk to
human life was high) and Tenn. Code Ann. § 40-35-114 (16) (1997) (the crime was
committed under circumstances where the potential for bodily injury to a victim was
great) are inherent in the offense of aggravated robbery when no other persons
were present. State v. King, 905 S.W.2d 207, 213 (Tenn. Crim. App. 1995); State v.
Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994). Although the State
concedes that the trial court improperly applied these two enhancement factors, we
have no way of determining what an appropriate sentence should be in the absence
of such enhancement factors. The appellant also argues that the trial court
misapplied the enhancement factor found in Tenn. Code Ann. § 40-35-114(13)
(1997) (appellant on some form of release status at the time of the offense).
However, the record supports the trial court’s application of this enhancement factor.
In summary, in order to fully assess the issues raised by the appellant, this court
must consider, among other things, the evidence received at trial and the nature and
characteristics of the crime. Because the record does not contain a transcript of the
trial, we are unable to determine what an appropriate sentence should be. In the
absence of a complete record, we decline to disturb the sentencing determinations
of the trial court. Accordingly, the judgment of the trial court is affirmed.
__________________________________
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Norma McGee Ogle, Judge
CONCUR:
______________________________
John H. Peay, Judge
_______________________________
Alan E. Glenn, Judge
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