point seven grams of cocaine the judge specifically considered as an overwhelming factor that mr blackhawk profited from the misery of others that he caused by for dealing drugs these factors monetary compensation and causing serious harm to society are implicit in the effects of delivery of a controlled substance and the legislature has already taken these factors into account when setting a range of penalties for this acts therefore it was an abuse of discretion for the child judge resentencing is necessary in this case the opposite is true the record affirmatively shows that these factors were significant to the child judge in this case and the judge placed great emphasis on during the sentencing hearing  the imposition of sentence the trial court mentioned specifically mr blackhawks profiting from the misery of others and causing misery not less than five times during the sentencing hearing the judge has explicitly the quote that it was an overwhelming factor that he profited from the misery of others in the delivery of one point seven grams of cocaine profit receiving profit compensation for delivery is an inherent component of the offensive delivery in conover the court was dealing with the compensation in the form of proceeds from the sale of stolen property and in that he's in a burglary or theft conviction and neckpiece the supreme court acknowledged that burglary or theft does not have an explicit element of compensation but goods and so in that he support held that it was improper for the trial the sentencing court to consider the company receiving compensation as an aggravating factor in this case the same kind of situation  d where the trial judge explicitly reference mr blackbox profiting from the sale of drugs and causing of misery to drug purchasers several times during the sentencing hearing and brought it up again during the motion to reconsider sentence hearing the judge said that it was an overwhelming factor that just simply could not be ignored and during the motion to reconsider hearing said that even though the family testimony in mitigation was moving  to be brutally honest the judge said mr blackbox profiting from the misery of others was intolerable these comments went way beyond commenting on the nature and circumstances of the offense and the court did not mention the particulars of the offense to which mr glascock like guilty such as the quantity of drugs that he sold for the amount of money he received in this case the court focused on generally mr blackhawk making a living from selling drugs but nothing in the record indicates that mr blackhawk's conduct had any more propensity to cause harm than the average delivery case and in terms of profitability nothing about this particular delivery case went above and beyond the typical drug sale in the small market amount of narcotics sold to an undercover officer and there was no evidence presented during the sentencing hearing about mr blackhawk's  engagement in a large criminal enterprise because the record shows that the judge placed great emphasis on these improper factors which are implicit in the offense of delivery the reason why delivery is punished more harshly than mere possession this court should reduce or be manned for be sentencing and mr black intends on appeal that his sentence should be reduced to a more appropriate term and he contends that eight years would be a more appropriate term given the nature and circumstances of the offense again it was a small amount sold to an undercover officer no weapon weapons were recovered and no injury resulted also in light of the mitigating evidence relating to mr blackhawks character in attitude the during his childhood he he faced many hardships he had no father he was raised by a mother who went to prison for armed robbery and he bounced from foster home to foster home while she was away in prison upon reaching eighth grade he graduated and went out on his own and took care of himself and despite all these hardships he never place blame on anyone he made no excuses f outs he took full responsibility he entered an open plea he apologised to the court he thanked the police department for setting him on the right path and there was there were five mitigating witnesses  five while testified about his extremely good nature the fact that he's a nurturing father a supportive father a father who spends time with his kids even though he had no father himself in that role all of these positive characteristics of mr black cop shows that he's got a great rehabilitative potential didn't flip through court say that in conjunction with the mitigating factor that which was that he supported all of these people the conjunction with supporting him he was doing it as a career builder but in the courts of that that was an overwhelming factor for it isn't through a supreme court case cases all relate to that factor as it applies to the extent and nature of the defendant's involvement in criminal enterprise and those cases all involve situations where there's direct evidence that the defend it some of these cases the defendant is arrested for delivering one over thousand grams of cocaine having multiple weapons in possession lots of details about his or her personal involvement in a large criminal enterprise or drug trafficking it relates to the nature and extent of the particular offense in this case we have no similar you have no similar facts there's no evidence that mr black cop was dealing in thousands of grams of cocaine or had weapons  no no statements like in mit where he explained his his particular involvement over some substantial period of time in selling substantial amounts of drugs here we have  that is correct but in terms of mr blackbox prior criminal history the only other prisons sentence he has served was six years we think eight years would have been more appropriate in this case given that again it's a small amount mr blackhawk had multiple mitigating witnesses who testified about his good character and his rehabilitative potential eight years was also closer in range to what the state had initially offered mr black pocket for he entered an open field the state offered him now and so the defendant is entitled to a fair sentencing hearing alternatively this court has the power to reduce the sentence if it finds that it is excessive based on the particular facts presented to it and mr black contends that that is also a possibility in this case and eight years is something that mr blackhawk it was half of the second city received it was close to the sentence that the the state offered in a plea negotiation and it would also significantly cut down on cost of incarcerat blackwell the the facts presented at the sentencing hearing were that were that it would cost almost five hundred thousand dollars to incarcerate him for sixteen years and already cost the state over one hundred thousand dollars to incarcerate mr blackhawk and even a positive character of mr blackhawk the plethora of mitigating evidence about how supportive he is and how what a good father he is we think that a reduction in his sentence would be appropriate acknowledged responsibility like i said he placed no blame on anyone he he expressed his future goals and attending college or going into a trace micha and he was already on his way back by attaining a she these are all facts that he he doesn't shy away from he you know face them on and express his rehabilitative potential and for those reasons we ask that this court reduce the second issue mr blackhawk contended that contends that he was assessed the pre hundred fifty dollars street value fine but it should be reduced to two hundred dollars because he pled guilty to delivery of only two hundred dollars worth of cocaine the the case on this subject is that the judges assessment of the street value fine is plain error if it is without sufficient evidence  his guilty plea was that he pled he pled guilty to delivery of one point seven grams of cocaine for two hundred dollars and because that was a factual basis that was presented by the by the state that was the evidence that was presented as to the current street value of the narcotics and so the street value just fine should have only been two hundred dollars the question and thank dollars one i made twelve hundred fifty dollars and one on january eighth of two thousand and ten for one hundred forty dollars so the evidence was in the record as to what the street agreed i don't believe that he agreed to the admission of the value yes for purposes in the record on page three and four the defendant and defense counsel reached the presentation of evidence as to the amount of drugs and the amount paid for those drugs and the other offenses that were charged and would be dismissed ar over a lawful delivery of controlled substance he was sent to the department of corrections in two thousand and seven and then placed by all also is criminal history shares that in addition not his first marriage going around and the only evidence there is about this defendant is he is a chronic drug dealer that's how he would be living he's never had a job that he did support his children he supported just children by being a drug dealer and when the trial just talks about this and says you know the only thing you've shown me is that you can go out there and so drugs that hurt people you make a living off selling he's not talking about an improper sentencing factor in fact this court has said that when you use factor my arm down the money that you make off selling rooms is permissible because a trial judge has to consider nature and extent of your involvement in a particular from the enterprise your underlying motivation for committee me offense and the likelihood of the defendant's commission of similar offenses in the future you know who what thinking person doesn't believe this defendant if he walked out of prison today wouldn't turn around and which is not only if it's called for in this case and quite frankly if you've got a good deal in this package guilty plea and it's you know counsel says that he's not complaining eighth one may twelfth and that one in january by counsel doesn't know that these these deliveries all were again very small quantities of less than six grams total of cocaine we're not talking about the hundreds of grams of cocaine that the case law and which the state relies is referring to these are three separate instances over eighteen eight or nine month period certainly the state could was reversible error when the funding got two years it's an if it's an improper factor and that should not have been considered in aggravation it was an abuse of discretion and so therefore adoption or every man is required even in situations fact during the sentencing hearing it was clarified that his only other prior felony conviction was for possession with intent to deliver it was not delivery and in in mitigation the evidence was presented that mr blackhawk presented that it was it a case involving in his p s i it was a case involving himself pulled over in a car before other individuals and a large quantity of narcotics was recovered from underneath the hood of the car and from that conviction he was from that be the defendant acknowledged i run a criminal enterprise in town i'm the person that sells substantial amounts of drugs over significant periods of time also indicating that's a perfect example thousands of grams of cocaine all sorts of drug paraphernalia found in the defendant weapons detailed evidence about the drug trade that the defendant teaches it here we have three isolated that three separate delivery evidence of three separate deliveries over a nine month period and a prior possession with intent is other part is related to his action of cannabis which we're not saying is if you know should not be considered but  in the record that he worked at i believe a popeye's and may have worked at a burger king and there's no evidence against it could have presented evidence about his sole source of income being drug dealing they made the argument but there's no direct alleged transactions the combined total of those transactions don't even wait to three fifty so it was two hundred one forty plus although the defendant agreed to the presentation of that that second transaction and other crimes evidence in aggravation he didn't agree to it as being proof of of sufficient evidence of proof of the street value of the fine of the of the drugs to which he actually like guilt and for those reasons we asked this court to reduce mr black