### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M ay 6, 2003 STATE OF TENNESSEE v. JAMES ADMERAL YANDAL Direct Appeal from the Circuit Court for Obion County No. 2-68 William B. Acree, Jr., Judge

No. W2002-01521-CCA-R3-CD - Filed October 8, 2003

The defendant appeals his conviction and sentence for sel ling a Schedule V I dru g over one-half ounce, a violation of Tennessee Code Annotated section 39-17-417(a) (3), a Cl ass E felony. The defe ndant alleges that the d elay betwee n the off ense dat e and his c onviction

was a due

process violation and tha t his four-yea r sentence as a Range I

I offender w as excessive. We conclude that neither issue is me

ritoriousand aff

irm the jud

gment f rom the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERE TT W IL LI AMS , J., deliver ed the opinion of the

court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined.
Cl iffordK. McGow n, Jr., Wave rly , Tennes see (on a

ppeal); Joseph P. Atn

ip, District P ubli c Defender, and William K. Randolph, Assistant Public Defender (at trial and on appeal), for the appella nt, James Ad

meral Ya ndal.
Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; Thomas A. Thomas , Distric t Attorne y General ; and Kevin D. Alpin , Assis tant Distr ict Attorney General, for the appellee, State of Te nnessee. OPINION
Facts
In July of 2000, the Union City Police Department was conducting an undercover ope ration un der the direction of Lieutenant Rick Ke lly. Kelly

was utilizing an undercover agent, De borah Huffman, to make dr

ug purc hases. O n July

21 , 2 00 0, Hu ff

ma n a rr an ge d t o b uy a quarter of a pound of marijuana from Keny atta Reaves, a co-defendant. Afte r receiving purchase mone y f rom Kell y and being wired

with a tra nsmitter, Huffman

procee ded to Rea

ves’ re sidence . Init

ially , Reaves did nothave the drugs, but a black male, later ide ntified as the defendant, arrived with the packa ged marijuana. Huffman paid Reave s $325, and t he defendant handed Huffman the drug s. The-2-

defend a ntwas iden

tified thr ough a t race of his vehic le licens e plate a nd a subse quent pho to identification by

Huffman. Testing by

the Tennessee Bureau of I nvestigation revealed the

drugs to be 107.3 grams of marijuana. .
The present

ence re port ref lected th at this thir

ty- six-y ear-ol d defend ant was a high sc hoo l graduate. He was married and had two daughters, but was currently separated from his wife. He had workedat Goodyea

r Tire & Rubber from 1989 to 2000, but had been f ired and was cur

rently unemployed.
In 2000, the defendant had been convicted for poss es si on of a w ea po n, a C la ss E fel on y, contempo raneous ly with a conviction for possession of Schedule VI drugs, a Class E felony , and in 1996, for rec

kless endangerment, a Class E felony . Also, the presentence report showed convictions for five misdemeanors, which did not include the defendant’s tra ffic offense convictions.
Due Pr ocess
The offense was committed on July 21, 2000. An arrest warrant was issued on October 12, 2001, and the defendant was arrested on October 30, 2001. The defendant was tried and c onvicted in the Circuit Court of Obion County on May 24, 2002. A

motion to dis miss the ind ictment du e to delay in prosec

ution was filed on April 17, 2002, and overruled on April 23, 2002.
The defenda

nt asser ts that the delay

of more than fourteen months between the commission of the offe nse and c ommenceme

nt of p rose cutio n was a vio latio n of h is due proc ess r ight s. We

do notinterpret the defendant’s arg ument as raising a speedy

trial issue and do not believe that such an issue co uld be sustained. It is only after formal grand jury

action or actual restraint of arrest that triggers a speedy

trial analysis. State v. Utley , 956 S.W.2d 4 89, 493 (T enn. 1997 ); Statev. Wood , 924 S.W.2d 34 2, 345 (Te nn. 1996) ; State v. Baker , 614 S.W.2d 352, 353 (Tenn. 1981).
A delay betwee n the date of the of fense and arrest or

indictment may, however , implicate due processconcerns under

the Fifth and Fourteenth Amendments to the United States Constitutionand Article I, § 9 o f t he Te nn es se e C on st it ut io n. Th e s ta nd ar d f or ev al ua ti on of pr e- ac cu sa to ri al de la ys as violative of due pr

ocess was proclaimed in State v. Gray , 917 S .W.2d 668, 6 73 (T enn. 1996) . We are instructed therein to consider (1) the length of de lay; (2) the re ason fo r d el ay; and (3) the degree of prejudice, if any , to the accused.
The test adopted in Gray

was later limited to cases in which the State was not knowle dgeab le that an offense had been committed . In ca ses wher e the Stat e has aw arenes s of the of fense , the standardis that se

t fo rth in U.S. v. Marion , 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). That test is whether the delay

caused prejudice to the defendant’s right to a fair trial and whether the delay was caused by

the State to obtain an advantage. State v. Utley , 956 S.W.2d 489, 495 (Tenn. 1997); see also State v. Carico , 968 S.W.2d 280, 284-85 (Tenn. 1998).-3-

In the case before us, the d elay betwe en the date of the offense and instigation of the accusatorial process was slightly in excess of fourtee n mon ths. This delay does not approa ch the periods of delay in Gray

(42 year s), Utley

(5 year s), or Carico (7 years) . Further, the State’s reason for delay wa s to protect the identity of the under cover agent, thereby

allowing the operation she was conducting to continue. The defendant has failed to demonstr ate prejudic e or any

effort b y th

e State to gain a tactical advantage by

delay. The de

fendant complains of his personal lack of memory, but does not allege the existence of any witne sses who were u navailable due to the delay . It will not avail the defe ndant tocomplain that the State preserved records of the offense by means of written notes or tape recordings. The under cover agent’s testimony

was forthright, and her reca ll was unimpeached. We conclude that the defendant’s claim of a due process violation is defe ated by his failure to demonstrate prejudice due to the delay in beginning the prosecution.
Sentence
The defendant contends that his sentence was excessive and that an alternativesentence was proper. This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This pre sumption is conditioned upon an affirmative showing in the record that the tr ial judg e conside

red the s entenci ng princ iples and all relevant facts and circumstances. State v. Pettus , 986 S.W.2 d 540, 543 (Tenn. 1999). If the tria l court fails to comply with the statutory directives, there is no presum ption of correctness and our review i s de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).
The trial court herein followed the statutory dire cti ves, and

our revi ew is de novo with a presumption of correctness. The defendant, as the appealing pa rty, must show that the sentence is improper. See Tenn. Cod e Ann. § 40 -35-401( d), Sente ncing Co mm’n Commen

ts. Having been previously c onvicted of two felonies, the defendant was se ntenc ed as a R ange II , multiple offender. See Tenn. Code Ann. § 40-35-106.
The defendant had received a suspend ed sentence of one y ear on each count on his prior felony convictions. On the date of this offense, the defendant was on supervised probation stemming from his convictions en te red in 2000 for possession of a weapon and possession of Schedule VI drugs w ith intent t

o sell.
The trial court applied three enhancement factor s: (1) the defendant had a previous history of criminal convictions or cri minal behavior, in addition to those necessary to establish the appropr iaterange ; (8) the d

efenda nt had “a previoushistory

of unwill ingness to comply with the conditions of a s ente nce involving release in the community ;” and (13)(C) this felony was committed while on probation from the felony conviction s in 2000. SeeTenn. Code Ann. §40-35-114(8), (13)(C) (1997). The trial court next expressed a need for ge neral deterrenc e, a pplying Tenne ssee Code Annotated section 40-35-102(3)(A), based on the trial judg e’s observation that the sale of drugs was a serious crime in thecommunity. The trial judge noted that the defendant’s crime was-4-

basedon intentional conduct for financial gai n and t hat the de fendant had prev iously engag ed in similar conduct, all of which the trial court deemed as a nee d for a deterrent sentence.
N ext, the trial court looked to sentencing considerations of Tenne ssee Code An notate d section 40-35-103(1)(A), (B), and (C), a nd found that co nfinemen t was necessary due to the def end ant’s long history of c riminal conduct and for deterrence pur poses, and that less restrictive measures had been ineffective as applied to the def endant. As a Range I I, multiple offender, the defendant was not pr

esumed a favora ble cand idate for alternative sentencing. SeeTenn. Code Ann. § 40-35-10 2(6). The defendant had a dvance d as a miti gating fact or that the defendant’s conduct neither caused n or threa

tened bod ily injury . The tria

l judge did no t recognize this as a mitigating factor but stated

that i f it were, it would not affect the sentence. Ba sed on the trial evidence, sentencing hearing, presentence r eport, statements of the defendant , argume nts by counsel, principl es of the sentencing act

and the enhancing factors, the trial court enhanced the presumptive sentence of two year s to the maximum of four years and imposed a $3000 f ine.
From our review of the record, particula rly the pre-senten ce report, we conclude that application of enhancement factor of Tennessee Code Annotated section 40-35-114(8) ( 1997) was in error. The commission of the present offense for which a def endant is being sentenced may not be used to make factor (8) applicable. State v. Hayes , 899 S.W.2d 175 , 186 (Tenn. Crim. App. 1995). Although the record rev eals the defendant was placed on supervise d probation for a convicti on in 1994, there is n o indicat ion of any

failure to comply

with the pr

obation te rms. Having concluded that factor (8) was improperly applied, there remain s two enhancement factor s. The weight to be afforded these f actors is left to the trial court’s discretion so l ong a s it complies withthe purposes and princ iples of th e 1989 Sen

tencing Act and it s finding s are ad equatel y supported on the record. Tenn. CodeAnn. § 40- 35-210, Se ntencing Commission Co mments; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
As pr ev io us ly n ot ed , t he de fe nd an t w as no t a pr es um pt iv el y f avorable c andidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). However, since the sentence imposed was less than eight ye ars, the defendant was eligible for probation. Te nn. Code Ann. § 40-35-303(a) (2000). The trial court considered both the need for deterrence and the def endant’s long record

of criminal conduct and

found that the defendant had not demonstrated that probation would best serve his or the public’s interests. We affirm the sentence as imposed.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE