transcript of the sentencing hearing in Tennessee

2019The -10- appellant bears the burden of preparing an adequate record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal,” Tenn. R.

2018“Where the record is incomplete and does not contain a transcript of the proceedings relevant to an issue presented for review, or portions of the record upon which the party relies, an appellate court is precluded from considering the issue.” State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993).

2026Yet “[w]hen this court has been faced with a transcript of the sentencing hearing clearly indicating the trial court’s intention that the defendant’s percentage is not zero percent, however, we have deferred to the trial court’s express pronouncement as reflected in the transcript.” State v. Russell, 10 S.W.3d 270, 278-79 (Tenn. Crim.

2013However, “[w]hen this court has been faced with a transcript of the sentencing hearing clearly indicating the trial court’s intention that the defendant’s percentage is not zero percent, . . . we have deferred to the trial court’s express pronouncement as reflected in the transcript.” State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim.

2016See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012).

2016See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012).

2015State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim.

2013State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim.

2015“When a party seeks appellate review there is a duty to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)).

2010“When a party seeks appellate review there is a duty to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)).

2020See State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012).

2015It is apparent from the transcript that the trial court “„set forth enough to satisfy the appellate court that he has considered the parties‟ arguments and has a reasoned basis for exercising his own legal decision making authority.‟” Bise, 380 S.W.3d at 706 (quoting Rita v. United States, 551 U.S. 338, 356-57 (2007)).

2012See Tenn. Code Ann. § 40-35-401 (2010), Sentencing Comm’ Cmts; Ashby, 823 S.W.2d at 169 (Tenn. 1991).

2003Tenn. Code Ann. § 40-35-303 (b); Ashby, 823 S.W.2d at 169 . -12- A transcript of the sentencing hearing is not included in the record.

2024“It is well-settled that the duty to prepare a record which ‘conveys a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of the appeal’ rests on the appellant.” State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005); Tenn. R.

2024See State v. Bennett, 798 S.W.2d 783, 789 (Tenn. Crim.

2021The trial court failed to make a specific finding that confinement was necessary to avoid depreciating the seriousness of the offense or that the circumstances of the offense were “especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or exaggerated degree, and the nature of the offense [] outweigh[ed] all factors favoring sentencing other than confinement.” See State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006); see also State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981).

2021The trial court failed to make a specific finding that confinement was necessary to avoid depreciating the seriousness of the offense or that the circumstances of the offense were “especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or exaggerated degree, and the nature of the offense [] outweigh[ed] all factors favoring sentencing other than confinement.” See State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006); see also State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981).

2016State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim.

2016However, “[t]here is no requirement that the State’s proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 2 The Defendant does not challenge her sentence on appeal, and a transcript of the sentencing hearing was not included in the record on appeal. -3- 1983).

2015It is apparent from the transcript that the trial court “„set forth enough to satisfy the appellate court that he has considered the parties‟ arguments and has a reasoned basis for exercising his own legal decision making authority.‟” Bise, 380 S.W.3d at 706 (quoting Rita v. United States, 551 U.S. 338, 356-57 (2007)).

2013Specifically, Defendant argues that the trial court erred by considering Defendant’s juvenile record, and Defendant asserts that the trial court improperly “gave great weight to an inappropriate component of the prior criminal history enhancement factor[.]” We note that the transcript of the sentencing hearing reflects that the trial court, in applying enhancement factor (1), found that in addition to Defendant’s prior aggravated robbery conviction in 2003, “[t]his court also finds that as part of his juvenile record that [Defendant] has been arrested; that he has been adjudicated delinquent o

2013The court stated, “[b]ecause the legislature is not presumed to have passed or enacted useless legislation, -10- factor (1) must necessarily apply only to adult criminal conduct, and factor (20) [as amended, factor (16)] must apply exclusively to juvenile adjudications of delinquent acts.” Id. (internal citation omitted).

2011See State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim.

2011Cf. Coleman v. Morgan, 159 S.W.3d 887, 892 (Tenn.Crim.App.2004) (concluding that Rule 36 did not apply where transcript of defendant’s guilty plea hearing indicated that illegal sentence reflected on judgment document was sentence actually imposed); see also Braden, 2005 WL 2008200 , at *6 (recognizing that a sentencing error on the judgment document may be deemed “clerical” only where “shown by the transcript of the sentencing hearing, minute book entries, or other records in the convicting case”) (Tipton, J., dissenting).

2011The appellant has a duty to prepare a record that conveys “a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal.” T.R.A.P. 24(b); see also State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).

2009In arguing this issue in his brief, the defendant also asserts that the trial court improperly denied him the transcript of the sentencing hearing, which prejudiced him by limiting his ability to “be provided meaningful appellate review over a vital right.” In Tennessee, “[t]here is no question . . . that an indigent defendant in a criminal prosecution must be provided with the tools of an adequate defense or appeal when those tools are available for a price to other defendants.” State v. Elliot, 524 S.W.2d 473, 475-76 (Tenn. 1975) (citations omitted).

2009“Generally, included in the basic tools has been a free transcript of prior proceedings in the indigent defendant’s own case, where the transcript was needed to vindicate a legal right.” Id. at 476 (citations omitted); see also Tenn. Code Ann. §§ 40-14-309 , -312 (2006) (providing that indigent defendants are to be provided with trial transcripts at state expense).

2005However, since the record does not include a presentence report, we are unable to review all evidence considered by the trial court in denying defendant’s application for alternative sentencing and must conclusively presume that “the determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401 (d); State v. Matthews, 805 S.W.2d 776, 784 (Tenn. Crim.

2003See Wood, 91 S.W.3d at 776 (percentage-of-service provisions of Sentencing Act did not apply in to criminal contempt sentence arising from underlying civil case); cf. Russell, 10 S.W.3d at 278 (“When this court has been faced with a transcript of the sentencing hearing clearly indicating the trial court's intention that the defendant's percentage is not zero percent . . . we have deferred to the trial court's express pronouncement as reflected in the transcript.”).

2003See Tenn. Code Ann. § 40 - 30-210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999).

1988See State v. Gro-seclose, 615 S.W.2d 142, 147 (Tenn.1981); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Jones, 623 S.W.2d 129, 131 (Tenn.Crim.App.1981).

1988See State v. Gro-seclose, 615 S.W.2d 142, 147 (Tenn.1981); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Jones, 623 S.W.2d 129, 131 (Tenn.Crim.App.1981).