State v. Tyrone Clay ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1997
FILED
STATE OF TENNESSEE, ) August 18, 1997
) No. 02C01-9608-CC-00261
Appellee ) Cecil Crowson, Jr.
) LAKE COUNTY Appellate C ourt Clerk
vs. )
) Hon. STEVE STAFFORD, Judge
TYRONE CLAY, )
) (Selling cocaine in an amount
Appellant ) greater than .5 grams - three counts)
For the Appellant: For the Appellee:
VANEDDA PRINCE CHARLES W. BURSON
Post Office Box 26 Attorney General and Reporter
Union City, TN 38261
(ON APPEAL) GEORGIA BLYTHE FELNER
Assistant Attorney General
Criminal Justice Division
STEVE DAVIS 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
P. O. Box 742
Dyersburg, TN 38025-0742 C. PHILLIP BIVENS
(AT TRIAL) District Attorney General
JAMES E. LANIER
Asst. District Attorney General
P. O. DRAWER E
DYERSBURG, TN 38024
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Tyrone Clay, presents a delayed appeal challenging the
length of sentences imposed by the Lake County Circuit Court.1 On the morning
of the appellant's scheduled trial, a plea agreement was reached, whereby the
appellant agreed to plead guilty to three class B felony sales of cocaine in
exchange for three concurrent sentences as a range I offender. The State had
previously filed notice of its intent to seek enhanced punishment of the appellant
as a range II, multiple offender based upon allegations of four prior felony
convictions. The trial court subsequently sentenced the appellant to three
concurrent eleven year sentences for these offenses. 2 In this appeal, the
appellant specifically contends that the trial court failed to consider applicable
mitigating factors which resulted in an excessive sentence.
When a defendant challenges the length of the sentences imposed by the
trial court, this court conducts a de novo review conditioned upon the
presumption that the determination of the trial court is correct. Tenn. Code Ann.
§ 40-35-401(d) (1990). This presumption only applies if the record demonstrates
that the trial court properly considered relevant sentencing principles. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). We find that the record so
demonstrates; thus, the presumption applies. Furthermore, the appellant, and
not the State, bears the burden of showing that the sentences imposed were
improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401.
At the conclusion of the sentencing hearing, the trial court found three
1
This appeal arises from the appellant's successful post-conviction claim of ineffective
ass istan ce of coun sel up on gr oun ds th at his trial co uns el faile d to p erfe ct a tim ely app eal to this
court. See Tenn . Code A nn. § 40- 30-213 (1995 S upp.)
2
The court ordered the instant sentences to run concurrently, but consecutively to the
appellan t's outstan ding paro le violations. See Tenn. R. Crim. P. 32 (c)(3)(A).
2
enhancement factors applicable, (1) the defendant has a previous history of
criminal convictions; (8) the defendant has a previous history of unwillingness to
comply with the conditions of a sentence involving release in the community; and
(13) that the felony was committed while the defendant was on parole from a
prior felony conviction. Tenn. Code Ann. § 40-35-114 (1), -114(8), -114(13)
(1995 Supp.). These factors are not challenged in this appeal. Additionally, the
trial court found one mitigating factor appropriate for consideration, (1) the
defendant's criminal conduct neither caused nor threatened serious bodily injury,
Tenn. Code Ann. § 40-35-113(1) (1990), and rejected the appellant's argument
that two other mitigating factors were applicable, namely: (6) the defendant,
because of his youth, lacked substantial judgment in committing the offense,
and, as a non-statutory mitigator, that the defendant entered guilty pleas to all
three counts. Tenn. Code Ann. § 40-35-113(6), -113(13).
The appellant, at the time of sentencing, was twenty-eight years old with
a lengthy criminal history which included prior felony convictions for drug
offenses. There is nothing in the record to indicate that the appellant lacked
substantial judgment because of his age. See, e.g., State v. Logan, No. 02C01-
9609-CC-00297 (Tenn. Crim. App. at Jackson, Apr. 10, 1997); State v. Leggs,
No. 01C01-9511-CR-00391 (Tenn. Crim. App. at Nashville, Feb. 28, 1997). The
court properly rejected the appellant's "youth" as a mitigating factor. Moreover,
although this court has previously upheld consideration of guilty pleas as a
mitigating factor, see, e.g., State v. Jernigan, No. 01C01-9410-CR-0033 (Tenn.
Crim. App. at Nashville, Feb. 23, 1996); State v. Myers, No. 03C01-9409-CR-
00344 (Tenn. Crim. App. at Knoxville, Apr. 13, 1995), the appellant's motivation
in entering guilty pleas was self-serving, since the State agreed not to pursue
range II sentencing in exchange for his guilty pleas, and the record indicates that
the appellant was "rude," "uncooperative," and "adamant about going to trial."
See, e.g., State v. Hayes, No. 01C01-9509-CC-00293 (Tenn. Crim. App. at
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Nashville, Oct. 24, 1996); State v. Cagle, No. 01C01-9301-CC-00006 (Tenn.
Crim. App. at Nashville, Nov. 18, 1993), perm. to appeal denied, (Tenn. Mar. 28,
1994). Accordingly, we do not find error in the trial court's sentencing decision.
This issue is without merit.
The appellant also contests the weight the trial court afforded to each of
the enhancement and mitigating factors. The presumptive sentence for a range I
offender of a class B felony is the minimum within the range, i.e., eight years.
Tenn. Code Ann. § 40-35-210(b)(e) (1995 Supp.); Tenn. Code Ann. § 40-35-
112(a)(2). Beginning with the presumptive sentence, the trial court must then
"enhance the sentence within the range as appropriate for the enhancement
factors, and then reduce the sentence within the range as appropriate for the
mitigating factors." Id. There is no mathematical formula in determining the
appropriate sentence, rather, the weight to be afforded an existing factor is left to
the trial court's discretion so long as the court complies with the purposes and
principles of the Sentencing Act and its findings are adequately supported by the
record. State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1995) (citing Sentencing Commission Comments, Tenn.
Code Ann. § 40-35-210; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see
Ashby, 823 S.W.2d at 169.). Again, the trial court found, and we agree, that
three enhancement and one mitigating factors are applicable. This issue is
without merit.
After a review of the record, we conclude that the sentences imposed by
the trial court are entirely justified and appropriate under the attendant
circumstances. Accordingly, the judgment of the trial court is affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
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JERRY L. SMITH, Judge
__________________________________
THOMAS T. W OODALL, Judge
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