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State v. Ellis4/16/1999
The appellant, Jackie R. Ellis, appeals the sentencing decision of the Marion County Circuit Court following his guilty plea to the offense of voluntary manslaughter. The terms of the plea agreement provided that the appellant would receive a sentence from three to five years and the court would determine the manner of service of the sentence. The trial court imposed a four year sentence in the Department of Correction. On appeal, the appellant contends that the trial court erred (1) in its application of the enhancing and mitigating factors and (2) by failing to grant an alternative sentence.
Based upon our review of the record, the length of the sentence is affirmed; however, we remand for resentencing consistent with this opinion.
BACKGROUND
Following the appellant's guilty plea on February 17, 1998, a sentencing hearing was conducted on April 9, 1998. The appellant's plea arises from the December 19, 1996, shooting death of his close friend, Kenneth Parker, which occurred at the residence of the appellant's mother. At the time of the shooting, the victim and the appellant were both extremely intoxicated. At the sentencing hearing, no testimony was presented by the appellant or by the State. To further complicate matters, the record before us does not include the transcript of the guilty plea hearing; therefore, we are precluded from conducting a proper de novo review of the nature and circumstances of the offense, other than stated above. See Tenn. Code Ann. § 40-35-210(b)(4) (1997). If the appellate record is inadequate, the reviewing court must presume that the trial Judge ruled correctly. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993); State v. Meeks, 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988). The obligation of preparing a complete and adequate record for the issues presented on appeal rests upon the appealing party. See Tenn. R. App. P. 24(b).
The only facts contained in the record are those undisputed facts included within the presentence report and those gleaned from the trial courts findings. The presentence report reflects that the appellant has two prior misdemeanor convictions of driving under the influence . Also attached to the presentence report are mental health records which establish that the appellant is an alcoholic and has previously been treated for substance abuse. The appellant was admitted to Moccasin Bend Mental Health Institute in October of 1996 where he was diagnosed with depressive disorder, adjustment disorder, and impulse control disorder.
I. SENTENCING
This court's review of the length, range, or manner of service of a sentence is de novo with a presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). See also State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). This presumption is only applicable if the record demonstrates that the trial court properly considered relevant sentencing principles. Ashby, 823 S.W.2d at 169. The record reflects that the trial court considered the relevant principles of sentencing; accordingly, the presumption is afforded.
A. Enhancement and Mitigating Factors
In sentencing the appellant with regard to enhancement factors, the trial court applied, "previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range," see Tenn. Code Ann. § 40-35-114(1) (1997), and "he did possess a firearm" during the commission of the offense. See Tenn. Code Ann. § 40-35-114(9). The record before us supports the application of both enhancement factors.
Next, the appellant arg
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