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State v. Maness2/9/1998
AFFIRMED
The appellant, Timothy S. Maness, appeals as of right, the imposition of sentences of confinement for the crimes of vehicular homicide and vehicular assault. On appeal, the appellant contends that the trial court erred in denying a non-incarcerative alternative sentence of either probation or a Community Corrections sentence.
After a review of the record, we affirm the judgment of the trial court.
Analysis
The appellant, pursuant to a plea agreement, pled guilty to one count of vehicular homicide, a class C felony, and one count of vehicular assault, a class D felony. Under the terms of the plea agreement, the appellant received concurrent sentences of three years for vehicular homicide and two years for vehicular assault. The issue of the manner and service of the sentences was submitted to the trial court for its determination. A sentencing hearing was held on July 30, 1996. The trial court denied any form of alternative sentence and ordered the sentences to be served in the Department of Correction.
Before beginning our review of the appellant's issues, we note that the appellant has failed to include a transcript of the evidence at the guilty plea hearing and the presentence report, see State v. Brewer, 875 S.W.2d 298, 302 (Tenn. Crim. App. 1993) (citing Tenn. Code Ann. §§ 40-35-102, -103, and -210 (1994); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987)), thus, precluding this court from providing a meaningful review of the issues. See, e.g., State v. Jackson, No. 02C01-9503-CC-00092 (Tenn. Crim. App. at Jackson, June 10, 1996). The appellant has the burden to prepare a record on appeal that presents a complete and accurate account of what transpired in the trial court with respect to the issues on appeal. Tenn. R. App. P. 24(b). The failure to do so results in a waiver of such issues and a presumption that the findings of the trial court are correct. Jackson, No. 02C01-9503-CC-00092 (citing State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (footnote omitted)).
Notwithstanding waiver and presuming the findings of fact by the trial court are correct, we conclude that the appellant's sentencing issues are without merit. Although a transcript of the guilty plea hearing is not included in the record, supra, it is apparent that these convictions stem from the appellant's unlawful operation of a vehicle, resulting in the death of the appellant's best friend and injury to another who were passengers in his vehicle. At the time these offenses occurred, the appellant was nineteen years old, had a blood alcohol content of .10 per cent and admitted to drinking five beers earlier that evening. At the sentencing hearing, the trial court extensively commented upon the appellant's pattern of underage drinking and driving and other offenses showing a total "disrespect to the law." Additionally, the court placed emphasis on the death of one of the victim's. Although providing the appellant with the presumption favoring alternative sentencing, the trial court denied alternative sentencing based upon the appellant's long history of criminal conduct, Tenn. Code Ann. § 40-35-103(1)(A) (1990); the need for deterrence, Tenn. Code Ann. § 40-35-103(1)(B); and the fact that measures less restrictive have been applied to the appellant unsuccessfully, Tenn. Code Ann. § 40-35-103(1)(C). See Tenn. Code Ann. § 40-35-102(6) (presumption favoring alternative sentencing may be rebutted by evidence to the contrary). Specifically, the court stated:
The Court is faced with determining whether or not something can be done to send a message to the community as far as general deterrence; that something must be done to stop the
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