### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. ROBER T ALLEN LEGGETT Direct Appeal from the Criminal Court for Davidson County

No. 98-C-1621 Cheryl Blackburn, Judge

No. M1999-01066-CCA-R3-CD - Decided April 14, 2000

In this appeal the defendant, Robert Allen Leggett, challeng es the sentenceimposed by the trial court. Defenda

nt p led guil ty t o one count of conspiracy to sell over seventy pounds of marijuana and one count of mo

ney launde

ring, both Class B

felonies. Defe

ndant was sentenc

ed to two eleven year sentences to run concurrently, and fined

$10,000.00 for each count. We affirm the judgment of the tr

ial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed R ILEY , J., delivered the opinion of the court, in which GLENN, J. and ACREE, Special J., joined. James Bryan L

ewis and Joshua G. Strickland, Nashville, Tennessee, for the appellant, Robert Allen Leggett. Paul G. Summers, Attorney General and Reporter, David H. Findley , Assistant Attorney

General, Victor S. Johnson, II

I, District Att

orney Gene

ral, and John C. Zimm

erma nn, Ass istant District Attorney General, for the appellee, State of Tennesse e. OPINION FACTS D efendant

wa s seen taking possession of a large box from an individual, whom the Metropol itan Police Department had placed under surveillance as part of an ongoing dr u g investigation. Defendant was f ollowed to

his residence wh

ere he was also

placed under surveillance. Shortly after the defendant

returned to his residence with the box, two other people

showed up at his residence. Both individuals were see n l eaving the def endant’s house sh

ortly there

after with suitcases. The Metropolitan Police Department stoppe d each of the indiv

iduals and discovered that each suitcase contained a twenty-two and a half pound bale of marijuana. Defendant

was stopped as he l

eft his residenc

e shortly the

reafter. When se

ar ched, police found $106,000 cash i n his possession. Police later executed a search warrant on the defendant’s residenceand found another twenty-two

and a half

pound bale of marijuana and $5,000cash, for a1 Although the defendant does not specifically assignerror to the amount of the fines, he does allege in t he last sentenc e of his brief that the fines are excessive. We conclude the fines were proper.
2 The trial judge, Honor able Cheryl Black

burn, made exte

nsive oral findings at the sentencing hearing. In addition, she filed a sentencing order detailing her sentencing determinations. Such excellent findings facilitate effective appellate review. -2- total of sixty-seven and a half pounds of marijuana and $111,000 in cash. Defendant

was indicted

on one count of conspiracy to sell over seventy pounds of marijuana, one count of money laundering, bo th Class B felonies, and one count of delivery of more than 10 pounds of marijuana, a Clas s D felony. A s a result of a ple

a agreement d

efendant pled g

uilty to both Class B felonies,

and the Class D felony was dismissed. Sentencing was not part of the agreeme

nt, except for concurren

t sentences. Def

endant was s en tenced to two eleven year sentences to run concurrently

, and fined $10,00

0.00 for each co

unt. 1 This appeal followed. SENTENCING - STAND ARD OF REVIEW This court’s review o

f the sentence im

posed by the

trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge c o nsidered the sent encing princip

les and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). 2 If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40- 35-210(c) provides that the presumptive sentence for most offenses shall be the minimum sentence within the applicable range. State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if s uch factors do exist, a trial court sho uldstart at the minimum sentence, enhance the minimum sentence within the range for enhancement

factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(

e). No particula

r weight for ea

ch factor is

prescribed by the

statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial court complies withthe purposes and principles of the sentencing act and its findings are supported by the record. Statev. Moss , 727 S.W.2d 229, 238 (T enn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (T enn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. If our review reflects that the trial court followed the statutory sentencing procedur e, impo sed a lawful sentence after giving due consideration and proper weig ht to the factors and principles set outunder sentencing law, and the trial court’s findings of fact are adequately supported by the record, then we may not modif y the senten

ce even if we wo

uld have prefer

red a differen

t result. Fletcher , 805 S.W.2d at 789.-3- WAIVER The record does not contain a transcript of the guilty plea. This court has stat ed that in order to conduct an effective appellate review of the sentence imposed, a transcript of the guilty plea hearing is necessary. State v. Keen , 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). The transcript of the guilty pleaserves as a window for the court to learn the circumstances behind sentencing. The guilty plea hearing is the equivalent of a trial. Id . at 843. Without the transcript of the guilty plea, this court must conclude that the sen tence imposed by the trial court was correct. Id . at 844. Therefore, this court c onsid ers all issues per taining to sentenc

ing waived. This co

urt will nonetheless addr

ess the merits. LENGTH OF SENTENCE A. Enhancement Factors Defendant contends that the trial court improperly applied the enhancement factors. As to the defendant’s previous criminal history, the defendant contends that the trial court erred by giving undue weight to the defendant’s criminal history as an enh ancement factor since the defendant’s criminal record is compri sed of only misdeme

anors, tw o of which date back to 1981. See Tenn. Code Ann. § 40-35-114(1). While the defendant a

cknowledges the m

isdemeanors that

m ake up his official criminal record, it was also shown that the defendant has engaged in criminal conduct far more extensive than that reflected in his official criminal record. The defendant admitted using L.S.D., marijuana and cocaine at different times between 1967 and 1995. While such drug use is not part of thedefendant's official criminal re cord, it is n onetheless a par t of his criminal hist

ory that can be c

onsidered in sentencing. This court finds that the trial court properly considered the defendant’s criminal history during sentencing as an enhancement factor. Defendant

contends that the trial court erred in finding that the defendant was a leader in the commission of an offense involving two or more actors. Tenn. Code Ann. § 40-35-114(2). In order to apply this enhancement factor, the evidence need only show that the defendant wa

s “a” leader in the offense, not necessarily the sole leader. Statev. Hicks , 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). The record rev

eals that the defendant delivered large bales of marijuana to two persons for further distribution. This enhancement factor was properly applied. B. Mitigating Factors The defendant contends that the trial court erred by not considering certain mitigating fac tors. Specifically, the defendant contends that the trial court did not give proper consideration during sentencing to the fact that th e defendant’s c onduct neither ca

used nor threate

ned serious bodily injury. Tenn. Code Ann. § 40-35-113(1). While conduct that neither causes nor threatens serious bodilyinjury is a mitigating fac tor, this mitigating f

actor is genera

lly entitled to little

weight in cases involvi ng dru gs. State v. Carroll , C.C.A. No. 03CO1-9607-CC-00254, 1997 WL 457490, at *4-4-

(Tenn. Crim. App. filed Aug. 12, 1997, at Knoxville). We see no reason t o redu ce the sentence based upon this factor. The defendant further contends that the trial court erred

by not giving proper consideration to the defendant’s past employment record. Tenn. Code Ann. § 40-35-113(13). Although this court has not been consistent, the better view is that a g ood work history sho uld be considere

d in mitigation. State v. Kelley , C.C.A. No. E1999-00557-CCA- MR3-CD, Knox County

(Tenn. Crim. App. filed Feb. 28, 2000, at Knoxville). This court concludes that work history as a mitigating factor in this case is entitle

d to little weight. We

also note that the defendant was dealing drugs at the same time he was gainfully employed. After our review of the record , we conclud e that the trial court applied the enhancement factors properly, and that

the mitigating factors claimed by the defendant a re relatively ins

ignificant. The length of the sentence is proper, and we see no reason to disturb it.

SENTENCING - COMMUNITY CORRECTIONS The Community Corrections Act establishes a pro

gram of communit

y-based a lternatives to incarceration

for certain eligible offenders. See Tenn. Code Ann. § 40-36-1 03. A defenda nt is eligible for participatio

n in a community

corrections pro

gram i f the defendant satisfies several minimum eligibility

criteria set forth at Tenn. Code Ann. § 40-36-106(a)(1)-(6). The Act does not provide that all offenders who meet these req uirements are entitled to such relief. State v. Grandberry , 803 S.W.2d 706, 707 (Tenn. Crim. App. 1 990). Indeed , Tenn. Code Ann. § 40-36- 106(d) provides that the eligibility criteria shall be interpreted as minimum standards to guide the court's determ

ination of eligib

ility of offe

nders under the A

ct. In determining if incarceration is appropriate, a trial court may consider the nee

d to protect society by restraining a defendant having a long history of criminal conduct, the need to avo i d depreciating the seri ous ness of the offen se, whether conf

inement is particu

larly appr opriate to effectively

deter others likely to commit similar offenses, and wh

ether less restrictive measures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); State v. Grigsby , 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997). The defendant pled guilty to Class B felonies; therefore the defendant is not presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102 (6). Further, the defendant was sentenced to two 11-year sentences to run c

oncurrently. As set forth

in Tenn. Code Ann. § 40-35-303 (a), “ [a] defendant shal l be eligible for probation...if the sentence actually imposed upon such defendant is eight (8) years or less...” As such, the d efendant was not eligible for probation. The defendant questions the trial court’s actions in “looking behind the plea agre

ement” in denying community correct

ion s. It is distinctly proper for a trial court to look behind the plea agreement

and consider the truenature of the offenses committed. State v. Bi ggs , 769 S.W.2d 506,-5-

507-08 (Tenn. Crim. App. 1988) . We further reject the defendant’s argum ent that h e was unduly punished for the w

rongs committed b

y others. The record clearly reflects that the defenda nt has a long history of criminal conduct, as has already been discussed. As well , it was the view of th

e trial court that

a less severe se

ntence would have depreciated the seriousness of the offense. The defendant was dealing drugs ona large scale. He was not a

simple user, but was engaged in the drug trade to make profit. He had over $100,000 cash at the time of his arrest. It was his intent to heap large quantities of illegal drug s onto the streets

. The defen dant was not unduly punished based upo

n his “social status

” as he allege

s. Obviously, the trial court properly denied alter native sentencing. CONCLUSION Based upon our review of the record, we affirm the judg

ment of the trial c

ourt in all respec

ts.