IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs at Knoxville July 25, 2017

STATE OF TENNESSEE v. RICO CARTER WHISNET

Appeal from the Circuit Court for Hardeman County

No. 15-CR-156 J. Weber McCraw, Judge

No. W2016-02173-CCA-R3-CD

The Defendant, Rico Carter Whisnet,

1 was convicted by a Hardeman County Circuit Court 

jury of delivery of less than 0.5 gram cocaine, a Class C felony, and delivery of 0.5 gram or 

more of cocaine, a Class B felony. See T.C.A. § 39-17-417 (2014). The trial court 

sentenced the Defendant as a Range II, multiple offender to concurrent terms of eight and 

sixteen years in confinement. On appeal, the Defendant contends that the trial court erred in 

its application of the mitigating and enhancement factors and by imposing more than the 

minimum sentence. We affirm the judgments of the trial court. 

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and J. ROSS DYER, JJ., joined.

Coleman W. Garrett and Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, 

Rico Carter Whisnet. 

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; 

Mike Dunavant, District Attorney General; and Joe VanDyke, Assistant District Attorney 

General, for the appellee, State of Tennessee.

OPINION

This case relates to two controlled drug purchases conducted by the Hardeman 

County Sheriff’s Office on July 11 and July 14, 2014. At the trial, Hardeman County 

Sheriff’s Office Narcotics Investigator Jason Wilson testified that he had been involved in 

about 100 narcotics cases during his career and had worked with confidential informants.

Investigator Wilson and Captain Greg Moore had received complaints that the Defendant 

 

1

The record reflects various spellings of the Defendant’s name. We have chosen the spelling contained in the indictment 

and the judgments.

09/15/2017
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was selling drugs. Investigator Wilson arranged for controlled drug purchases by an 

experienced confidential informant. Investigator Wilson said that he had worked with this 

confidential informant on numerous other controlled drug purchases and that the confidential 

informant was reliable. The condfidential informant was paid for his assistance in each 

transaction. 

The officers gave the confidential informant a video camera, hidden in a keychain, to 

record the transactions. The video recordings are not included in the appellate record, 

however, the recordings of both transactions were played for the jury. During the viewing of 

the recordings, Investigator Wilson identified the Defendant’s car, home, and voice. In the 

recording of the first transaction, the confidential informant identified the Defendant by 

name and greeted the Defendant’s mother. The confidential informant returned to the 

investigators with a “baggie” of what appeared to be crack cocaine. Investigator Wilson said

that during the second controlled drug purchase, the confidential informant met with the 

Defendant at a designated location. The confidential informant again returned with a baggie 

of what appeared to be crack cocaine. The substances were sent to the Tennessee Bureau of 

Investigation (TBI) laboratory for analysis. The analyses concluded that the substances were

cocaine base. 

On cross-examination, Investigator Wilson testified that Captain Moore searched the 

confidential informant before the first transaction occurred. Investigator Wilson 

acknowledged that the video recording of the first transaction did not show the exchange of 

drugs and money but said that the exchange was audible in the recording. Investigator

Wilson admitted that the confidential informant stopped to purchase gas on the way to meet 

the Defendant and left the camera in the car while at the gas station. Investigator Wilson 

said that the confidential informant stopped a second time before meeting with the Defendant 

to “get his money right.” Investigator Wilson admitted that the recording did not show the 

confidential informant during the second stop. Investigator Wilson said that the recording of 

the second controlled drug purchase did not show the exchange of drugs and money but that

the exchange was audible in the recording. 

Hardeman County Sheriff’s Office Captain Greg Moore testified that he had assisted 

Investigator Wilson during both controlled drug purchases. Captain Moore stated that he 

searched the confidential informant and the confidential informant’s car before and after both 

transactions and that nothing was discovered during the searches.

The confidential informant testified that he had worked as a confidential informant for 

approximately three or four years. He admitted that he had an extensive criminal history. 

The confidential informant said that he had participated in about seven or eight controlled 

drug purchases with Investigator Wilson. He said that he met with Investigator Wilson and 

Captain Moore before the first transaction. The confidential informant said that he travelled 
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to the Defendant’s home, that he purchased crack cocaine from the Defendant, and that he 

placed the crack cocaine in his pocket. The confidential informant said he gave the crack 

cocaine to Investigator Wilson. 

The confidential informant testified that he met the Defendant at the designated 

location for the second transaction. The confidential informantstated that the Defendant was 

sitting in a car when he arrived, that he got in the Defendant’s car, and that he purchased

crack cocaine. The confidential informant said he gave the crack cocaine to Investigator 

Wilson.

On cross-examination, the confidential informant testified that he was related to the 

Defendant, that he had not been recruited to serve as a confidential informant, and that he 

was “already working” when approached by investigators. He said that the Defendant was 

known for selling drugs. The confidential informant said that he was not employed other 

than as a confidential informant. 

TBI Special Agent Forensic Scientist Peter Hall testified that he analyzed the 

substance submitted for analysis from one of the transactions. He said that the substance 

tested positive for cocaine base and weighed 0.64 gram. 

TBI Special Agent Forensic Scientist Shalandus Garrett testified that she analyzed the 

substance submitted for analysis from the other transaction. She said that the substance 

tested positive for cocaine base and weighed 0.20 gram. 

Upon this evidence, the Defendant was convicted of delivery of less than 0.5 gram 

of cocaine and delivery of 0.5 gram or more of cocaine. This appeal followed.

The Defendant contends that the trial court erred by ordering more than the minimum 

sentences, arguing that the court failed to consider the mitigating factors and misapplied the 

enhancement factors. The Defendant asserts that the court should have applied mitigating 

factors (7) and (13) because the Defendant was motivated by a desire to provide for his 

family, was enticed to commit the crime by his cousin, and suffered from psychological 

disabilities. See T.C.A. § 40-35-113 (7), (13) (2014) (“The defendant was motivated by a 

desire to provide necessities for the defendant’s family[.]”) (“Any other factor consistent 

with the purposes of this chapter.”). He also argues that the court should not have considered 

the Defendant’s previous drug convictions, which occurred more than ten years before the 

present offenses, in applying enhancement factor (1). See T.C.A. § 40-35-114(1) (2014) 

(amended 2015, 2016, 2017) (“The defendant has a previous history of criminal convictions 

or criminal behavior, in addition to those necessary to establish the appropriate range[.]”). 

The State responds that the court did not abuse its discretion. We agree with the State.
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At the sentencing hearing, the presentence report was received as an exhibit and

reflected that the Defendant was age thirty-four and had two children who did not live with 

him. The Defendant’s mother reported that the Defendant had received mental health 

treatment previously and that he attended a behavioral health center monthly for medication 

and counseling. The Defendant reported poor physical and mental health, including 

diabetes, high cholesterol, high blood pressure, acid reflux, and anxiety. He reported taking 

medication for those conditions. The Defendant reported alcohol use beginning at age 

seventeen and stated that he drank a “fifth” of cognac every two days. He reported that he 

began using marijuana at age fourteen and cocaine at age twenty-four and that he had used 

both drugs every other day until his incarceration. 

The presentence report reflected the Defendant had previous convictions for twentytwo traffic violations, three cocaine-related convictions, two misdemeanor possession of 

marijuana convictions, and an assault conviction. The report showed that the Defendant’s 

probation was revoked previously in one of his cocaine-related covictions.

The Defendant testified that he had never been employed and that he had received 

Social Security Disability benefits for psychological problems for more than ten years. The 

Defendant said that he had psychological problems as a child. He stated that he graduated 

from high school and that he took special education courses while in school. The Defendant 

said that he took Ritalin and Paxil for his psychological problems. He stated that at the time 

of the offenses he lived with his mother and that he had lived with her all of his life. 

On cross-examination, the Defendant testified that he had two prior convictions for 

selling narcotics. The Defendant said that he owned the car seen in the video recording of 

the second transaction but that he could not drive. When asked whether he had previously 

claimed in court that he was indigent, the Defendant responded, “I got a mom too. She could 

have bought that vehicle.” The Defendant stated that a previous attorney represented him 

without a fee and that he had not paid trial counsel in the current case.

The trial court considered the evidence presented at the trial and the sentencing 

hearing, the presentence report, the principles of sentencing, the arguments regarding 

sentencing alternatives, the nature and characteristics of the criminal conduct, evidence 

relative to mitigating and enhancement factors, the Defendant’s statement, and the 

Defendant’s potential for rehabilitation or treatment. The court found that the Defendant was 

a Range II, multiple offender. The court found that mitigating factor (1) applied based upon 

the nature of the offense. See id. § 40-35-113 (1) (“The defendant’s criminal conduct neither 

caused nor threatened serious bodily injury[.]”). The court found that enhancement factor (1) 

applied. See T.C.A. § 40-35-114(1) (“The defendant has a previous history of criminal 

convictions or criminal behavior, in addition to those necessary to establish the appropriate 

range[.]”).
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The trial court found that although the Defendant’s criminal history was lengthy, most 

of the offenses were “minor driving offenses.” The court found that consecutive sentencing 

was not appropriate. In determining the length of the sentences and whether probation was 

appropriate, the court considered that the Defendant had been placed on probation previously 

and that it had not “been an effective deterrent.” The court sentenced the Defendant to 

concurrent terms of eight and sixteen years at 35% service.

 

This court reviews challenges to the length of a sentence within the appropriate 

sentence range “under an abuse of discretion standard with a ‘presumption of 

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must 

consider any evidence received at the trial and sentencing hearing, the presentence report, the 

principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature and 

characteristics of the criminal conduct, any mitigating or statutory enhancement factors, 

statistical information provided by the Administrative Office of the Courts as to sentencing 

practices for similar offenses in Tennessee, any statement that the defendant made on his 

own behalf, and the potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166, 

168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014); State v. Moss, 727 

S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); 

see T.C.A. § 40-35-102 (2014). 

Likewise, a trial court’s application of enhancement and mitigating factors is 

reviewed for an abuse of discretion with “a presumption of reasonableness to within-range 

sentencing decisions that reflect a proper application of the purposes and principles of our 

Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of an 

enhancement or mitigating factor does not invalidate the sentence imposed unless the trial 

court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as 

there are other reasons consistent with the purposes and principles of sentencing, as provided 

by statute, a sentence imposed . . . within the appropriate range” will be upheld on appeal. 

Id.

The record reflects that the Defendant and the State agreed that the Defendant was a 

Range II, multiple offender. The trial court considered the appropriate purposes and 

principles of sentencing, including the applicable mitigating and enhancement factors. The 

court’s determination relative to the Defendant’s prior criminal history and enhancement 

factor (1) is supported by the record. The presentence report reflects that the Defendant had 

three previous cocaine-related convictions, as well as several misdemeanor drug and assault 

convictions. In addition, the Defendant had previously received probation, which was later

revoked. The sentencing range for a Class B felony for a Range II offender is twelve to 

twenty years, and the sentencing range for a Class C felony is six to ten years. See T.C.A.

40-35-112(b)(2), (b)(3) (2014). The Defendant’s sentences were within the appropriate 
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range, and the court’s determinations are supported by the record. The record reflects that 

the court properly applied the purposes and principles of the Sentencing Act. The Defendant 

is not entitled to relief.

In consideration of the foregoing and the record as a whole, we affirm the judgments 

of the trial court. 

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE