# FILED
September 24, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NA SHVILLE MARCH 1999 SESS ION

WILLIE WITHERSPOON, * C.C.A. # 01C01-9809-CC-00363

Appellant, * ROBERTSON COUNTY VS. * Honorable Robert W. Wedemeyer, Judge STATE OF TENN ESSEE, * (Sale of Schedule II Controll ed Substance - 2 counts) Appellee. *

FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL R. JONES (On Appeal) JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter 110 Public Square Springfield, TN 37172 KIM R. HELPER Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 JOHN WESLEY CARNEY, JR. District Attorney General B. DENT MORRISS Assistant District A

ttorney 500 South Main Street Springfield, TN 37172

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON The defendant, Willi e Witherspoon, fil es this dela yed appeal fr

om a Robertson County jury

verdict convicti ng him of two sales of a Schedul e II controlled substance. One sa le, a Class B felony, inv olved 0.5 or more grams of cocaine, and the other sale, a C lass C felony, invol ved less than 0.5 gram of cocaine.
The defendant was sentenced to the Depar tment of Correction for eleven years as a Range I standard offender for the Class B felon y and nine years as a Range II multiple offender for the Class C felony. The se sentences were consecutive to each other a nd consecutive to a sentence from a prior conviction. The defendant was found guilty on August 7, 1996 and sentenced on Dec ember 6, 1996. On October 16, 1997, the defendant filed a petition for post-conv iction relief which alleged that his trial counsel had promised he would pursue a direct appeal of his sentence. Trial cou nsel filed no appeal. On August 14, 1998, the trial court entered an order granting this delayed appeal from his sentences.

BACKGROUND The first witness at tri al, Joe Macleod, was a police officer assigned to the 19th Judicial Drug Task Force (DTF). Macleod testified that the DTF had established credibility

for the confidential informant partic ipating in the instant case by that informant’s prev ious participation in ov

er 60 other investig ations. Macleod supervised both purchases from the defendant, and his testimony described visual sur

veillance and other speci fics of the investigation.

The informant testified that she order ed a gram of cocaine from the defendant. After calling the defendant and placing the order, the i nformant met the defendant in a parking lot and exchanged money for the coca ine. Several days later, the informant cal led the defendant and ordered a “six teenth,” or one--3- sixteenth of an ounce of cocaine. The de fendant again met her at the parkin g lot and exchanged the cocaine for mone y. The state presented both v ideotaped and audi otaped e vidence o f the tra nsaction s to the ju ry.
At the sentencing hearing , the trial court noted that the defendant had pleaded guilty in Dec

ember 1994 to a Class B cocaine felony, receiving eight years in Community Corrections as a Range I offender. The trial court also noted the defendant’s Class E felony conviction for a Sch edule VI violation in 1981.
Officer Lemley of the DTF testified at the sentencing hearing. He testified that the defendant apparently held no regular jobs during Lemley’s two-y

ear tenure with the DTF. However, the defendant accumulated substan tial assets, including his residen ce and other realty; a r ace car; a “dually” pickup truck; a Corvette; and approximately thirty-thousand dollars worth of tools.

The defend ant test ified at the sent encing hearing and clai med that he left his last employer in 1992 with “numerous [sic] amounts of money that [he] did not have to have.” He performed odd jobs and sold drugs to support some o f his fourteen children. The defendan t testified that he had served approximately eleven months on Community C orrections when he w

as arrested for the charges in the instant case. His own cocaine problem “play ed a part” in his selli ng cocaine.

ANAL YSIS Admission of Evidence During the trial, the state’s proof comprised: 1. The testimony of Officer Macleod, es tablishing the DTF’s threeyear investigati on of the defendant; 2. Officer Macleod’s testimony regarding procedure for establis hing conf identia l inform ant relia bility;1 The relevant testi mony actuall y addressed t he propensit y for vi olence possessed by some of the defe ndant’s s ons. -4- 3. That officer’s testimony regarding the DTF policy of targeting drug dealers, versus users, and regarding the defendant’s assets; and 4. Testimony that the defendant was responsible f or all crime in Robertso n County. 1
The defendant asserts that admission of this evidence constituted “serious, substantial, egregious

and fundamental errors whic h [sic] strike and destr

oy the judicial proceedings, ” and he also asserts that this evidence was tot ally irrelevant and intended solely to “poison the jury.” See Tenn. R. Evid. 401, 402, 403. The defendant did not, however, obj ect to the contested evidence at trial. See Tenn. R. App. P. 36(a) (This Cour t is not required to pr

ovide relief “to a party

. . . who failed to take whatever a ction was reasonably

available to prevent

or nullify the harmful effect of an error.”); see also State v. Killibrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (appli ed Rule 36(a) when defendant faile d to object to the admission of evidence).

This issue is waiv

ed. The defendant did not file a motion for new trial within thirty day

s of the order entering his sentence. See Tenn. R. Crim. P. 33(b); Tenn. R. Crim. P. 45( b); State v. Martin , 940 S.W.2d 567, 569 (Tenn. 1997) (The provision for fil ing a timely motion for new trial is mandatory and may not be extended). “[T]he failure to timely file a motion f or a new trial results in the waiver of those issues which may result in the granting of a new trial.” State v. Dodson , 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989); see also Tenn. R. App. P. 3(e) (“Provi ded, however, in all cases tried by a jur

y, no issue presented for review sh all be p redicat ed upon er

ror in the admis

sion or exclus ion of evidence . . . unless the same was specifically stated in a motion for new trial; otherwise such issues

will be treated as w

aived.”). Further,the trial court’s Or der granting a delayed appeal restricts that appeal to the issue of the def endant’s sentence and bars any consideration of evidentiary issues.-5- The defendant asserts, however, that these allegedly erroneous admissions affected his substantial rights and thereby mer it our review. See Tenn. R. Crim. P. 52(b) (“ An error which [si c] has affected the substantial rig ht of the accused may be noted at any time . . . where necessar y to do substantial justice.”). A panel of thi s Court held that such a plai n error review must be predicated on an “especiall y egregious err

or that strikes at the fair ness, integrity or public reputation of judicial proceedings.” State v. Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). The defendant h as not demonstrated that the contested evidence reaches this standard: This evidence was not so unf airly prejudicial as to “destroy the judicial proceedings.”

SENTENCING The defendant also submits two chal lenges to his sentence. H e asserts that the trial court both erroneously enhanced his sentence and erroneously imposed consecutive sentenci ng. When an accused challenges the leng th or manner of service of a sentence, th is Court review s the record de novo “w ith a presumption that the determinations mad e by the court from which the appeal is taken are correct.” Tenn. C ode Ann. § 40-35-401(d). The pres umption of correctness is conting ent on the record indicating both the lower court’s

reasons for arriving at a sentencing decision and compliance with the statutory sentencing guidelines and principles. See State v. Wilkerson , 905 S.W.2d 933, 934 (Tenn. 1995). The appellant bears the burden of showing that the sentencing was improper

. See Tenn. Code Ann. § 40-35-401(d) se ntencing comm’n comments; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996). The following consi derations apply: (1) the evidence received at trial and at the sentencing hearing ; (2) the presentence repor t; (3) the principles o

f sentencing and arguments as to sentencing alternativ es; (4) the nature and characteristics of the cr iminal conduct involv

ed; (5) any statutory

mitigating or enhancem ent facto rs; (6) any sta tement ma

de by th e accuse

d on his own beh alf;-6- and (7) the potential or lac k of potential for rehabilitati on or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, - 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

Enhancement factors We find no reversible error in the tr ial court’s applicati on of three enhancement factors to the defendant’s sentenc es: (1) “[P]revious

history of criminal conviction or criminal behavior in addition to those necessar y to establish the appropriate r ange”; (2) “a prev

ious history of unwil lingness to comply with the conditions of a sentence involving release in the community”; and (3) commission of the offenses whi le on release status from a pri or felony conviction. See Tenn. Code Ann. § 40-35-114 (1), (8), (13)(e). The defendant contests the trial court’ s applying enhancement factor (8), regarding “a previous history of unwilli ngness to comply wi th the conditions of a sentence inv olving release in the community.” Tenn. Code Ann. § 40-35-114(8). Commission of an offense, and subsequent conviction for tha t offense, may not constitute a basis for enhancing the sentence for that offense unde r factor (8). See State v. Hayes , 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995). Therefore, c onviction for the instant two offenses can not support enha ncement of their sentences.

However, the defendant testified that he had used drugs in violation of his Community Corrections sentence. This testimony pr operly invokes factor

(8). Further, the defendant admitted selling drugs “many times.” These multiple sales, independent from the two t ransactions in the instant case, demonstrate unwillingness to c

omply with community

release.
The trial court assigned “very slight weight” to two findings: the defendant’s testifying candidl y and his providing

for his family. See Tenn. Code Ann. § 40-35-113 (13), (7).We respectfully disagree with the conclusion that-7- these factors apply to the defendant’ s benefit. First, a defendant’s t estifying under oath should not merit appli cation of the “catch-all” mi tigating factor for speaking the truth. See Tenn. Code Ann. § 40-35-113 (13). Further, to invoke factor (7), the statute expl icitly require s that a defendant sought necessitiesfor his family when that defendant v iolated a law. The recor d does not establish that Corvettes, real estate, and race cars were necessary to support the defendant’s family. Consecutive sentencing A trial court in its discretion may impose cons ecutive sentencing on multiple convictions un der certain circumstances

. See Tenn. Code Ann. § 40- 35-115. The trial court found, by a required preponderance of the evidence, that the defendant “[was] a professional criminal who has knowingly devoted such defendant’s life to criminal acts as a major source of liv elihood.” Tenn. Code Ann. § 40-35-115(b) (1). Although the record supports this specific finding, the Tennessee Supreme Court has imposed a proportionality req uirement for consecutive sen tencing: [T]he imposition of consecutive sentences on an offender found to be a dangerous offender requires , in addition to the applicati on of the general principles

of sentencing, the finding that an extended sentence is necessary t o protect the public agains t further criminal conduct by the defendant and that the con secutive sentences must reasonably relate to the s everity of the offenses committed.
State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). This holding specifically addresses

cases involving

consecutive sentencing based on a defendant’s classification as a da ngerous offender. However, authority exists for the proposition that these findings are necessary for consecutive sentencing on other bases. See State v. Desirey , 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995) (required these additio nal findings for consecutiv e sentencing based on the tri al court finding the defendant a professi onal criminal). But see State v. Lane , No. 03C01-9607-CC-00259 (Tenn. Cr im. App. filed June 18, 1997, at Knox ville)-8- (appeal argued before Tennessee Supr eme Court, January 1999) ( “It is not cogently clear, how

ever, that Wilkerson applies to any case other than one involving the sent

encing of a dangerous offender under § 40-35-115(b)(4). The opinion in Wilkerson may be fa irly constr ued to ap ply only to c onsecut ive sentencing of dangerous offenders.”)

Because the trial court di d not specifically arti culate these findings, our review is de nov

o regarding the Wilkerson requirements. The record c ontains sufficient proof for a finding that consec utive sentencing is appropriate. The defendant testified that he had sold cocai ne on many occasions and that he was “addicted” to selling

cocaine. He continued to deal drugs while on Community Corrections and conceded that he realized that each sale of coca ine “would contribu te to som eone’s h abit.” W e theref ore concl ude that consecut ive sentencing is necessary to protect the public from further criminal condu ct by this defendant. W e further conclude that consecutive sentencing is reasonably related to the severity

of the offenses and is congruent with general principl es of sentencing. See State v. Baker , No. 01C01-9711-CC-00537 ( Tenn. Crim. App. Filed April 9, 1999, at Nashville).

CONCLUSION We AFFIRM the trial court’s judg ment.

_____________________________ JOHN EVERETT W ILLIAMS, Judge CONCUR:

___________________________ DAVID H. W ELLES, Judge-9- ____________________________ JOE G. RILEY, Judge