State v. Barry Jordan

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 28, 1997
• Docket: 02C01-9607-CC-00236
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED AUGUST SESSION, 1997 October 28, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9607-CC-00236 ) Appellee, ) ) DYER COUNTY ) V. ) ) HON. JOE G. RILEY, JUDGE BARRY JORDAN, ) ) Appe llant. ) (VOLUN TARY M ANSLAU GHTE R)

FOR THE APPELLANT: FOR THE APPELLEE:

G. STE PHE N DAV IS JOHN KNOX WALKUP District Public Defender Attorney General & Reporter 208 N. Mill Avenue P.O. Box 742 CLINTON J. MORGAN Dyersburg, TN 38025-0742 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

C. PHILLIP BIVENS District Attorney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION

The Defendant, Barry Jordan, appeals as of right pursuant to Rule 3 of the

Tennessee Rule s of App ellate P roced ure. Fo llowing a jury tria l in the C ircuit

Court of Dyer County, the Defenda nt was found guilty of voluntary manslaughter

and was s enten ced to five (5) ye ars in prison as a Ran ge I stand ard offen der. In

his sole issue on appeal, Defendant argues that the sentence imposed by the trial

court wa s exces sive. W e affirm the judgm ent of the tria l court.

When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 4 0-35-40 1(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all rele vant facts a nd circum stance s." State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, this court must consider: (a)

the eviden ce, if an y, rece ived at th e trial an d the s enten cing hearing; (b) the

presentence report; (c) the principles of sentencing and arg umen ts as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defen dant m ade on his own b ehalf; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

-2- If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and p rincipa ls set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may no t modify th e sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

Voluntary manslaughter is a Class C felony and a Range I sentence is not

less than three (3) years nor more than six (6) years. Tenn. Code Ann. §§ 39-13-

211(b) and 40-35-112 (a)(3). The pres umptive sentence for a C lass C felony is

the minimum in the range if there are no enhancement or mitigating factors.

Tenn. Code Ann. § 40-35-210(c). Should the trial court find mitigating and

enhancement factors, it must start at the minimum sentence in the range and

enhance the sentence based upon any applicable enhancement factors, then

reduce the sentence based upon any appropriate mitigating factors. Tenn. Code

Ann. § 40-35-210(e). In applying a five year sentence, the trial court in this case

used the following two enha ncem ent factors : (1) the victim was trea ted with

exceptional cruelty; and (2) Defendant used a deadly weapon to commit the

offense. See Tenn. Code Ann. § 40-35-11 4(5) and (9). Th e trial court also found

the following two misc ellaneous m itigating factors applicab le: (1) no prior felony

conviction; and (2) a relatively good work record. See Tenn. Code Ann. § 40-35-

113(13 ).

The weight given to each factor is within the trial court’s discretion

provided that the record suppo rts its findings and it complies with the Sentencing

Act. See State v. Mars hall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 19 93), perm.

-3- to appeal denied (Ten n. 199 3). Th e trial co urt, how ever, s hould mak e spe cific

findings on the record which indicate his application of the sentencing principles.

Tenn. Code Ann. §§ 40-35-209 and -210.

With regard to the enh ancem ent and mitigating factors, this Court must

defer to the findings of the trial judge since no transcript of the trial proceedings

is contained in the record. The re is no proof before this Court as to the nature

of this crime or how it was committed. We are neither aware o f the spec ific facts

that led the trial judge to find that the crime was especially cruel, nor are we

aware of what type of weapon this Defendant used in the commission of the

crime. This Court must make decisions based on matters within the record and

not outside of the reco rd. Wh en a pa rty seeks appellate review the re is a duty

to prepare a record which conveys a fair, accurate and complete account of what

transpired with respe ct to the issues forming the basis of the appeal. If the record

is incomplete, this Court is precluded from considering the issues ra ised. W e

must conclusively presume that the determination of the trial court was correct

regarding the weight to be afforded both the enhance ment factors and mitigating

factors. State v. Locust, 914 S.W.2d 554, 557 (Tenn . Crim. A pp.199 5); see also

State v. Matthews, 805 S.W .2d 776 , 784 (T enn. C rim. App . 1990).

In reviewing the sentencing considerations of Tennessee Code Annotated

section 40-35-103, the trial court found that in this case confinement was

necessa ry to avoid deprec iating the seriousn ess of “this particular hom icide.” It

is clear that the trial court made its decision based on th e particula r facts

surrounding this particular crime. Again, since the record on appeal does not

-4- include the trial transcript and is for that reason incomplete, this Court must

conclus ively presu me tha t the judgm ent of the tria l court is corre ct.

We therefore affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID G. HAYES, Judge

___________________________________ JERRY L. SMITH, Judge

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