IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 19, 2018

STATE OF TENNESSEE v. RICHARD LEE DIVINEY, SR.

Appeal from the Circuit Court for Marshall County

No. 16-CR-183 Forest A. Durard, Jr., Judge

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No. M2017-01513-CCA-R3-CD

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Defendant, Richard Lee Diviney, Sr., contends that his guilty plea should be set aside 

because the fee provision of Tennessee Code Annotated section 39-17-420(h)-(j) is 

unconstitutional and that the trial court erred by not “actually” applying a mitigating factor 

during sentencing. After a thorough review, we determine that Defendant’s challenge to 

Tennessee Code Annotated section 39-17-420(h)-(j) was resolved by the Tennessee Supreme 

Court’s holding in State v. Decosimo, 555 S.W.3d 494 (Tenn. 2018). Additionally, we hold 

that the trial court acted within its discretion when sentencing Defendant. Thus, we affirm 

the judgments of the trial court, but remand for entry of corrected judgments that properly 

indicate the merger of Counts Two and Three into Count One.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed and 

Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and J. ROSS DYER, J., joined.

Matthew D. Wilson, Mississippi State, Mississippi, for the appellant, Richard Lee Diviney, 

Sr.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney 

General; Robert J. Carter, District Attorney General; and Weakley E. Bernard, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

11/01/2018
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While Defendant was an inmate in the Marshall County jail, a search revealed two 

Lortab pills, one Xanax pill, and four Gabapentin pills in Defendant’s jail cell.1 A Marshall 

County grand jury indicted Defendant for introduction of drugs into a penal facility in Count 

One; simple possession of Alprazolam (Xanax), a Schedule IV controlled substance, in 

Count Two; and simple possession of Hydrocodone (Lortab), a Schedule III controlled 

substance, in Count Three. Defendant entered an open plea to the aforementioned charges, 

and a hearing was held to determine Defendant’s sentence. 

The facts which were put on the record at Defendant’s guilty plea hearing were 

incorporated by reference into the sentencing hearing record. The pre-sentencing report, 

which was considered by the trial court, indicated that Defendant had eighteen prior 

misdemeanor convictions and one prior felony and that Defendant had been unsuccessful at 

completing probation multiple times in the past. The report also showed that Defendant was 

on probation for his conviction of attempt to hinder a secured creditor at the time of this 

offense, even though he was incarcerated because his probation had been revoked on a 

separate theft conviction. After hearing arguments from the parties, the trial court applied 

enhancement factor (1), “The defendant has a previous history of criminal convictions or 

criminal behavior, in addition to those necessary to establish the appropriate range”;

enhancement factor (8), “The defendant, before trial or sentencing, failed to comply with the 

conditions of a sentence involving release into the community”; and enhancement factor 

(13)(c), “At the time the felony was committed one (1) of the following classifications was 

applicable to the defendant: . . . [r]eleased on probation[.]” See T.C.A. § 40-35-114(1), (8),

(13)(c). The trial court also applied mitigating factor (1), “The defendant’s criminal conduct 

neither caused nor threatened serious bodily injury.” See T.C.A. § 40-35-113(1). The trial 

court explained that he viewed each of Defendant’s prior convictions as pushing him up the 

“ladder” within his sentencing range. The trial court determined that a six-year sentence was 

appropriate, and after considering the requisite factors, the trial court did not find alternative 

sentencing to be appropriate. 

During the sentencing hearing, the State proposed that Counts Two and Three should 

be merged into Count One and said that they were “not arguing for sentencing to be set on 

those.” In its oral ruling, the trial court explicitly said that Counts Two and Three merged 

into Count One. At the end of the sentencing hearing, the trial court asked the State to draft 

the judgments. The judgments entered in this case revealed that Defendant was sentenced to 

six years in Count One, which was to be served consecutively to the sentence in case number 

16-CR-183, which is the case number for this case, and any other sentences. The judgments 

for Counts Two and Three indicated that they merged with each other, but neither judgment 

form lists a sentence length for its respective count. Also, none of the judgments in this case 

indicated that Counts Two and Three merged with Count One. 

 

1 A transcript of Defendant’s plea hearing was not included in the appellate record. We gleaned these

facts from the general sessions court warrants and the pre-sentencing report. 
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After he was sentenced, Defendant timely appealed. 

Analysis

I. Constitutionality of the Drug Testing Statute

Defendant pled guilty without preserving a certified question of law, and he does not 

now challenge the voluntariness of his plea. Rather, he contends that his convictions should 

be set aside because the fee provision of Tennessee Code Annotated section 39-17-420(h)-(j) 

(2017) violates due process principles and is, thereby, unconstitutional. Defendant’s plea of 

guilty waived any constitutional defects in the testing that was done pursuant to Tennessee

Code Annotated section 39-17-420. See State v. Turner, 919 S.W.2d 346, 354 (Tenn. Crim. 

App. 1995) (holding that any constitutional defect which occurred prior to the guilty plea is 

waived). Additionally, no transcript of the plea hearing is included in the appellate record,

and the judgment forms do not indicate that Defendant was ordered to pay the fee; thus, we 

are unable to determine if the fee for the TBI tests on the drugs in this case were part of 

Defendant’s plea. 

More importantly, during the pendency of this appeal, our supreme court has 

addressed the issue of whether statutes granting a fee to the TBI when test results are used to 

obtain a conviction are constitutional. See Decosimo, 555 S.W.3d at 495-96. Because “any 

institutional financial incentive the [testing] fee statute creates is far too remote to constitute

a possible temptation to any reasonable forensic scientist to manipulate or falsify test results 

to increase conviction rates and generate [testing] fees,” our supreme court deemed a nearly 

identical statute granting fees for the testing of blood alcohol concentration to be 

constitutional. Id. at 514, 516. Given our supreme court’s holding in Decosimo, it appears 

evident that no clear and unequivocal rule of law was breached, and Defendant would not be

entitled to plain error relief. See State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000).

II. Sentencing

Defendant also claims that the trial court erred by giving him the maximum sentence 

within his sentencing range. Specifically, Defendant contends that the trial court did not

“actually” apply mitigating factor (1). The State counters by arguing that the trial court acted 

within its discretion. We agree with the State. 

When a defendant challenges the length or manner of service of a within-range 

sentence, this Court reviews the trial court’s sentencing decision under an abuse of discretion 

standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 

(Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies to 

“within-range sentencing decisions that reflect a proper application of the purposes and 
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principles of the Sentencing Act.” Bise, 380 S.W.3d at 707. A trial court abuses its 

discretion in sentencing when it “applie[s] an incorrect legal standard, or reache[s] a decision 

which is against logic or reasoning that cause[s] an injustice to the party complaining.” State 

v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 

(Tenn. 1996)). The defendant bears the burden of proving that the sentence is improper. 

T.C.A. § 40-35-101, Sentencing Comm’n Cmts. 

In reaching its decision, the trial court must consider the following factors: (1) the 

evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; 

(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature 

and characteristics of the criminal conduct involved; (5) evidence and information offered by 

the parties on enhancement and mitigating factors; (6) any statistical information provided by 

the administrative office of the courts as to sentencing practices for similar offenses in 

Tennessee; (7) any statement by the defendant in his own behalf; and (8) the potential for 

rehabilitation or treatment. See T.C.A. § 40-35-102, -103, -210(b); see also Bise, 380 

S.W.3d at 697-98. Additionally, the sentence imposed “should be no greater than that 

deserved for the offense committed” and also “should be the least severe measure necessary 

to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4).

This Court will uphold the sentence “so long as it is within the appropriate range and 

the record demonstrates that the sentence is otherwise in compliance with the purposes and 

principles listed by statute.” Bise, 380 S.W.3d at 709-10. The weighing of various 

enhancement and mitigating factors is within the sound discretion of the trial court. State v. 

Carter, 254 S.W.3d 335, 345 (Tenn. 2008). Appellate courts may not disturb the sentence 

even if we had preferred a different result. See id. at 346

Petitioner only challenges whether the trial court “actually” applied mitigating factor 

(1) during the calculation of his sentence. The trial court explicitly stated at the sentencing 

hearing that it applied mitigating factor (1). The balancing of this mitigating factor against

the three enhancement factors that applied in this case was within the sound discretion of the 

trial court. Defendant’s six-year sentence was a within the range for a Class C felony as set 

forth by Tennessee Code Annotated section 40-35-102(3). We will not disturb Defendant’s 

sentence. 

However, we must note one problem with the judgments in this case that became 

obvious during our review. At the sentencing hearing, the trial court found that Counts Two 

and Three merged into Count One, and we agree. However, this is not reflected in the 

judgments. Instead, the judgments only reflect Counts Two and Three merging together. 

We remand this case to the trial court for entry of new judgment documents for Counts One, 

Two, and Three indicating that Count Two and Three merge into Count One. See State v. 

Berry, 503 S.W.3d 360, 364 (Tenn. 2015) (“The judgment document for the lesser (or 

merged) conviction should reflect the jury verdict on the lesser count and the sentence 
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imposed by the trial court. Additionally, the judgment document should indicate in the 

‘Special Conditions’ box that the conviction merges with the greater conviction. To avoid

confusion, the merger also should be noted in the ‘Special Conditions’ box on the uniform 

judgment document for the greater or surviving conviction.”)

Additionally, no sentences were imposed in Counts Two and Three. While it is not 

required, our supreme court has noted that in order to spare the trial court and the parties the 

hassle of an additional sentencing hearing if the greater count were to be reversed, “the best 

practice is for the trial court to impose a sentence on each count and reflect the sentence on 

the respective uniform judgment document.” Id. at 365.

Conclusion

For the aforementioned reasons, the judgments of the trial court are affirmed, but we 

remand this case for entry of corrected judgments properly reflecting the merger of Counts 

Two and Three into Count One. 

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TIMOTHY L. EASTER, JUDGE