State v. Anthony Darden ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1997 SESSION
October 30, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
) C.C.A. NO. 01C01-9604-CR-00140
Appellee, )
) Davidson County
v. )
) Honorable Ann Lacy Johns
ANTHONY DARDEN, )
) (Poss. controlled sub. w/ int. to sell)
Appellant. )
For Appellant: For Appellee:
John E. Rodgers, Jr. Charles W. Burson
Lackey, Rodgers, Price & Snedeker Attorney General and Reporter
Suite 1230, First American Center
315 Deaderick Street Daryl J. Brand
Nashville, TN. 37238-1230 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN. 37243
Victor S. Johnson III
District Attorney General
Suite 500,Washington Square Building
222 Second Avenue North
Nashville, TN. 37201
Dan Hamm
Assistant District Attorney General
Suite 500,Washington Square Building
222 Second Avenue North
Nashville, TN. 37201
OPINION FILED:________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Anthony Darden, appeals the sentences he received in the
Criminal Court, Division III, of Davidson County. The appellant pled guilty and was
sentenced on two counts of possession with intent to sell .5 grams or more of a
substance containing cocaine, a Class B felony, and one count of selling less than .5
grams of a substance containing cocaine, a Class C felony.1 The trial court sentenced
the appellant, as a range I standard offender, to serve ten years in the Department of
Correction and to pay the minimum mandatory two thousand ($2000) dollar fine for
each count of possession with intent to sell .5 grams or more of cocaine, and to serve
five years for the selling of less than .5 grams of a substance containing cocaine. The
sentences were ordered to run consecutively for an effective sentence of twenty five
years.
On appeal, the appellant contends that the trial court erred in its application of
several enhancement factors and in ordering his sentences to run consecutively. After
a review of the record, we find no error and affirm the judgment of the trial court.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)
(1990). The burden of showing that the sentence is improper is upon the appealing
party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. The
presumption of correctness is conditioned upon an affirmative showing in the record
that the trial court considered the sentencing principles and all relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
At the sentencing hearing, the trial court applied the following enhancement
factors to the appellant’s sentences: 1) the appellant’s prior criminal history; 2) the
appellant’s leadership in the commission of a crime involving two or more criminal
actors; 3) the appellant’s lack of hesitation in committing a crime when the risk to
1
The a ppellant’s g uilty pleas on th ese co unts ca me p ursuan t to a plea ag reem ent with the State
in which the State agreed to drop counts one and three of the indictment in case no. 94-A-304, charging
the appellant with contributing to the delinquency of a juvenile and simple possession of marijuana.
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human life was high; 4) the appellant’s commission of the crime under circumstances
in which the potential for bodily injury to a victim was great; and 5) the appellant’s
commission of felonies while on release by bail. See Tenn. Code Ann. § 40-35-
114(1), (2), (10), (13), and (16) (1990).
The appellant first contends that the trial court erred in applying enhancement
factor (1). Our review of this issue is limited because the appellant’s presentence
report was not made a part of this record on appeal. The record, however, contains
evidence of the appellant’s criminal history as set forth in the Community Corrections
Assessment Plan, submitted as Exhibit I. This plan details the appellant’s past
convictions for criminal trespass, gambling, three counts of assault, and two counts of
evading arrest. Additionally, the appellant testified at the sentencing hearing that he
has made his living from the sale of drugs. Specifically, the appellant admits that he
bought an automobile from money he earned through past drug deals. From this
evidence, we find that the trial court properly applied enhancement factor (1) as to the
appellant’s prior criminal history.
The appellant next contends that the trial court erred in using enhancement
factor (2) concerning the appellant’s role as a leader in the commission of an offense
involving two or more criminal actors. The trial court applied this enhancer to the
appellant’s drug offense committed on December 17, 1992, listed as count two in case
no. 94-A-304. We find evidence in the record that the appellant relied on a juvenile to
assist and protect him during this particular drug offense and other past drug deals.
That evidence is sufficient to support the trial court’s finding that the appellant was a
leader in the commission of a criminal offense involving two or more criminal actors.
Therefore, the application of enhancement factor (2) was not error.
The appellant next requests this Court to review the trial court’s application of
enhancement factors (10) and (16) to his three drug offenses. Enhancement factor
(10) applies in cases where the defendant had no hesitation about committing a crime
when the risk to human life was high. See Tenn. Code Ann. § 40-35-114 (10).
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Similarly, enhancer (16) applies when the crime was committed under circumstances
under which the potential for bodily injury to a victim was great. See Tenn. Code Ann.
§ 40-35-114 (16). In the appellant’s case, the trial court apparently applied enhancers
(10) and (16) based upon “the nature and character” of cocaine. There is no evidence
that the appellant’s drug offenses involved any risk or danger of injury other than the
basic nature of cocaine itself. Although this Court considers the possession and
selling of cocaine to be abhorrent, we are unable to apply enhancement factors (10)
and (16) to these offenses without additional evidence to support a finding that the
offenses involved specific risks of danger to human life.
This Court has previously held that “the nature and character” of cocaine alone
is not sufficient to warrant the application of enhancers (10) and (16). See State v.
Keel, 882 S.W.2d 410, 419-21 (Tenn. Crim. App. 1994), per. app. denied (Tenn.
1994); State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993), per. app.
denied (Tenn. 1993); State v. Timmy Ricker, No. 269, (Tenn. Crim. App. at Knoxville,
Jan. 4, 1989), per. app. denied (Tenn. 1989). Following these cases, this Court
recognizes that the Tennessee General Assembly has already taken into
consideration the nature and effect of cocaine when it made cocaine a Schedule II
drug and classified cocaine offenses as Class B and C felonies. See State v. Edgar
Dean Fox, No. 01-C-01-9402-CC0050 (Tenn. Crim. App., at Nashville, May 18, 1995).
Consequently, the trial court should not have applied enhancement factors (10) and
(16) to the appellant’s cocaine offenses.
The trial court also applied enhancement factor (13) to the appellant’s
sentences. The trial court found that the appellant committed the September 1993
cocaine offense, listed in case no. 94-A-431, and the June 1994 cocaine offense,
listed in case no. 95-A-135, while he was on release by bail. The record on appeal
supports the trial court’s findings in that regard and, therefore, the trial court properly
used factor (13) to enhance the appellant’s sentence for the two post-bail counts.
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Although we find that the trial court incorrectly applied enhancement factors
(10) and (16), given the relative strength of the three remaining appropriate
enhancement factors, we affirm the length of the appellant’s sentences.
The appellant next contends that the trial court erred in ordering his three
sentences to run consecutively. The trial court found that the drug offenses charged
in indictments 95-A-135 and 94-A-431 were committed while the appellant was out on
bail from previous drug charges, listed in case no. 94-A-304. Furthermore, the drug
offense charged in case no. 95-A-135 was committed while the appellant was out on
bail from the drug charge in case no. 94-A-431.2
The issue of consecutive sentencing is governed by Tennessee Code
Annotated section 40-20-111(b), which states:
In any case in which a defendant commits a felony while such defendant
was released on bail in accordance with the provisions of chapter 11,
part 1 of this title, and the defendant is convicted of both such offenses,
the trial judge shall not have discretion as to whether the sentences shall
run concurrently or cumulatively, but shall order that such sentences be
served cumulatively.
This court has recently determined that this statute applies equally in cases
where defendants are convicted by juries of pre-bail and post-bail offenses and in
cases where defendants pled guilty to such offenses. See State v. Kevin Foster, No.
03C01-9510-CC-00337 (Tenn. Crim. App. At Knoxville, June 27, 1996).
The trial court did not err in ordering consecutive sentences. The statute
mandates them. The appellant’s issue as to consecutive sentencing is without merit.
Although not raised by either party on appeal, there remains a final issue
concerning the order in which the appellant must serve his consecutive sentences. At
the sentencing hearing, the trial court ordered the ten-year sentence in case no. 94-A-
2
The trial co urt found that the ap pellant wa s originally arres ted and g iven bail on tw o drug c ounts
and a count of contributing to the delinquency of a juvenile, listed in 94-A-304. While out on bail, the
appellant was arrested for the possession with intent to deliver twenty-six grams of cocaine, listed in 94-
A-431. The appellant was again released on bail and was later arrested for selling less than .5 grams of
cocaine, listed in 95-A-135. The appellant pled guilty to each of the post-bail counts in indictments 95-A-
135 and 94-A-431, and he pled guilty to the pre-bail count of possession with intent to sell .5 grams or
mor e of coc aine con tained in ca se no. 94 -A-304 .
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304 to run consecutive to the ten-year sentence in 94-A-431 and the five-year
sentence in 95-A-135. Additionally, the trial court ordered the five-year sentence in
case no. 95-A-135 to run consecutive to the two ten-year sentences in 94-A-304 and
94-A-431. Based upon our review of the record, we find that the appellant must first
serve the ten-year sentence in case no. 94-A-304. This sentence covers the first pre-
bail offense for which the appellant was charged and convicted in this case. The ten-
year sentence in case no. 94-A-431 must run consecutive to the ten-year sentence in
94-A-304. Furthermore, we find that the trial court properly ordered the five-year
sentence to run consecutive to the two ten-year sentences. The appellant committed
the drug offense in 95-A-135, underlying the five-year sentence, while he was out on
bail for the two previous drug offenses in 94-A-304 and 94-A-431.
Based upon the foregoing, the judgment of the trial court is affirmed. Upon
remand, the trial court shall review the judgments to ensure that the appellant serves
his consecutive sentences in the proper chronological order.
_______________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
____________________________
JOHN H. PEAY, Judge
____________________________
JERRY L. SMITH, Judge
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