### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs May 19, 2 00 9 a t Kn ox vi ll e

STATE OF TENNESS EE v . DELARIE KATRI CE PURNELL

Appeal f rom the Circ uit Court for Marshall County No. 08CR43 Rober t Cr igler, Judge

No. M2008- 02333-CCA -R3-C D - F iled October 27, 2009

The Def endant, Delar ie Katric e Purnell, pled g uilty to sale and delivery of a Schedule VI controlled substance (counts 1 and 2), sale and delivery of a Schedule I I controlled substance (counts 3 and 4), sale and delivery of a Schedule I controlled substance (c o u nts 5 and 6), speeding (count 7), and simple posse ssion of a Schedule VI controlled substance (count 8). At the sentenc ing hear ing, the trial court denied alterna tive sentenc i n g. The Def endant appea ls, arg uing that her sentenc e is excessive and c ontrary

to law. Citing the De fenda nt’s previous criminal convictions and c riminal conduct, the court order ed the Def endant to serve an eff

ective sentenc e of ten y ear s as a Rang e I Standard Of

fende r. Afte r re viewing the re cord, w e af firm the judg ment of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt is Affi rm ed.

D. K E L L Y T H O M A S , J R ., J
., delivere d the opinion of the court, in which J A M E S C U R W O O D W I T T , J R ., and N O R M A M C G E E O G L E , J J ., joined.

Donna Orr Harg rove, District Public De fe nder; Michael J

. Colli ns and W illiam Har old, Assistant District Public Defe nders, a ttorney s for a ppellant, Dela

rie Ka trice Purne ll.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Clarenc e E. L utz, Assistant Attorney Gene ral; Charles Fr ank Crawf

ord, J r., District Attorney Gene ral; and Weakley E. Ba rnar d, Assistant District Attorney Gene ral, a ttorney s for a

ppellee, State of

Tenne ssee.

OP INION

The fac ts are not in dispute. The Def endant stated, in a written statement afte r her arr est, that she t ra v el ed from I ndianapolis to Houston, Texas with a friend from work. Upon arr iving in Houston, the friend rente d a car and they went to a hotel in Houston for the night. The next day
, a Monday
, the Def

endant left her friend to meet a man named Rob at the Kentucky Fr ied Chicken next to the hotel. The Def

endant boug ht two pounds of marijuana and fiftee n ecsta sy pills from Rob. On Tuesday
, the Def

endant met Rob at a liquor store and purcha sed a small amount of coca ine for hercousin. Her cousin wired her five hundred dollars to cover his share of the marijuana purcha se. On

their drive back to I ndianapolis, the Def endant wa s pulled over by Tenne ssee Hig hway Patrol Trooper Way ne Dunklema

n for spe eding

.
Trooper Dunkleman testified at the sentenc ing hear ing. Acc ording to Trooper Dunkleman, he stopped the Def

endant on I nterstate I -65 for g oing 82 miles per hour in a 70 mile per hour speed

zone. He stated that he smelled what “he believed to be a burned marijuana smell” emana ting from the car and from the Def

endant. After talking to the passeng ers, he allowed his canine to circ le the vehicle. T he ca

nine re acte d to the smell of m arijuana on the “driver’s side door and the lef

t trunk

are a of the vehicle.” Upon noticing the canine ’s react i on, he told the occupa nts, including the
passen ger wh o h ad rented the car in her name, that he “alr eady had probable cause to sear ch the vehicle.” At that point, the passeng er said “g o ahea d an d s ear ch whateve r y ou want.” Trooper Dunkleman asked the Def endant if there was any marijuana in the car

. He t estified that the Def endant “stated t hat t here was a marijuana blunt in the ashtray

and she w ould show it to me i f I would let h er g o home.” He ref used and advised the Def endant of her Miranda rig hts. The Def endant then be g an “kic king stone s” and “ cussing loudly .”

Trooper Dunkleman stated that he noticed that the passeng er was shivering

. Whil e retrie ving

a jacke t from the trunk for the passeng er, he noticed a “ver y strong odor of what [he] believed to be

raw marijuana .” When Deputy L indsay Cook of the Marsha ll County Sheriff’ s Depa rtment arr ived, Trooper Dunkleman and Deputy Cook sear ched the vehicle and found a marijuana blunt in the ashtray
, three packa g es of marijuana in a blue, Nike duffle bag
, a plastic bag containing coca ine, and thirteen Ec stasy

pills.

There se Fr azier of the State of Tenne ssee’ s Depa rtment of Probation and Parole also testified
at the sentenc ing hear ing. She stated that the Def endant had two prior felony convictions of burg lary and rec eived a four y ear sentenc e. She was order ed to serve 210 day s befor e being rele ased on probation. Acc ording to Ms. Fr azier, the Def endant had been to t wo trea tment prog rams for her addiction to coca ine.

ANAL YSI S

The Def endant’ s sole issue on appea l is that the trial court imposed an excessive sentenc e. An appellate court’s revie w of sentenc ing is de novo on the rec ord with a presumption that the trial court’s determinations are corr ect. Te nn. Code Ann. § 40-35- 401(d) ( 2005). The a ppealing party has the burden of showing that the imposed sentenc e is improper. I d. I f revie w of the rec ord ref lects that the trial court proper ly considere d all rele vant fac tors, g ave due consideration and proper weig ht
to eac h fac tor, and its finding s of fac t are adequa tely supported by the rec ord, this court must aff irm the sentenc e. State v. Fletc her, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991). Should the rec ord fail to demonstrate the require d considerat i o n s by the trial court, then appellate revie w of the
sentenc e i s p u re l y d e novo

. Ashby
, 823 S.W .2d at 169. I n this respe ct, for the purpose of meaning ful appe llate re view,

-2-[T] he trial cour t m u s t p l ace on the rec ord its rea sons for arr iving at the final

sentenc ing decision, identify the mitigating and enhanc ement fac tors found, state the specific fac ts s u p p o rt ing eac h enhanc ement fac tor found, and articula te how the mitigating and enhanc ement fac tors have been evalua ted and bala n c e d in d e te r

mi n in g the sentenc e. Te nn. Code Ann. § 40-35- 210(f) (1990).

State v. J ones, 883 S.W.2d 597, 599 (Tenn. 1994).

I n conducting its de novo revie w, the appellate court must consider (1) the evidenc e, if any , rec eived at the trial and sentenc ing hear ing, (2) the prese ntence repor t, (3) t h e p ri n ci p les of
sentenc ing and arg uments as to sentenc ing alterna t i v es , (4) the nature and char acte ristics of the criminal conduct, (5) any mitigating or statutory enhanc ement fac tors, (6 ) any statement that the defe ndant made on her own behalf
, and (7) the potential for reha bilitation or trea tment. Tenn. Code Ann. §§ 40-35-102, - 103, -210 (2006) ; see Ashby , 823 S.W .2d at 168; State v. Moss, 727 S.W .2d 229, 236-37 (Te nn. 1986).

The Def endant committed this offe nse on Fe bruar y 27, 2008; thus, she was sentenc ed under the revised sentenc ing act as enac ted by the Tenne ssee Gene ral Assembly in 2005. The act provides:

(c) The court shall impose a s en t ence within the rang e of punishment, deter mined by whether the defe ndant is a mitigated, standard, persistent, car eer , or repe at violent offe nder. I n imposing a specific sentenc e within the rang e of punishment, the court shall consider, but is not bound by , the following advisory sentenc ing g uidelines:

(1) The minimum s en t en ce within the rang e of punishment is the
sentenc e that should be imposed, beca use the g ener al assembly set the minimum leng th of sentenc e for eac h felony class t o re fl ect the rela tiv e seriousness of eac h criminal offe nse in the felony classifica tions; and (2) The sentenc e leng th wi t h i n the rang e should be adjusted, as appropr iate, by the p resence or absenc e of mitigating and enhanc ement fa ctors set out in §§ 40-35-113 a nd 40-35-114.

Tenn. Code Ann. § 40- 35-210(c )(1) -(2) (2006).

The weig ht to be aff

orded an enhanc ement or mitigating fac tor is left to the trial court’s discretion so long as its use complies with the purposes and principles of the 1989 Sentencing Act and t h e co u rt ’s fi n dings are adequa tely supported by the record. I d. § (d)- (f) ; State v. Carter
, 254 S.W .3d 335, 342-43 (Tenn. 2008). “An appellate court is there fore bound by a trial court’s decision

as to the leng th of the sentenc e imposed so long as it is imposed in a manner co n s i s t en t wi t h the
purposes and principles set out in

. . . the Sentencing Act.” Carter
, 254 S.W .3d at 346. Acc ording ly
, on appea l we may only revie w whether the enhanc ement and mitigating fac tors wer e supported by the re cord a

nd their applica tion was not otherwise ba rre d by statute. See id.

-3-I n im p o sing a sentenc e, the trial court may only consider enhanc ement fac tors that are

“appr opriate for the offe nse” and “not alre ady

. . . essential element[s] of the offe nse.” Tenn. Code Ann. § 40-35-114 (2006). These limit ations exclude enhanc ement fac tors “base d on fac ts which are used t o prove the offe nse” or “[f]acts which establish the elemen t s of t he offense charg ed.” State

v. J ones, 883 S.W .2d 597, 601 (Tenn. 1994) . Our supre me cour t has stated that “[t]he purpose of the limit ations is to avoid enhanc ing the leng th of sentenc es based on fac tors the leg islature took into consideration when establishi n g t h e range of punishment for the offe nse.” State v. Poole, 945 S.W .2d 93, 98 (Tenn. 1997) ; J ones, 883 S.W.2d at 601.

After revie wing the rec ord, we conclude that the trial court co n s i d er ed the nece ssary sentenc ing principles and the rele vant fac ts and circ umstances in this particula r case

. There fore
, we will conduct a de novo review on the record, with a presumption that the determinations made by the trial cour

t are corr ect. Te nn. Code Ann. § 40-35-401( d).

At the sentenc ing hear ing, the State proposed the followi n g enhanc ement fac tor: “The [D] efe ndant has a previous history of criminal convictions or criminal behavior
, in addition to those

nece ssary to establish the appropr iate rang e.” Tenn. C o d e An n

. § 4 0-35-114. I n return, the Def endant proposed one mitigating fac tor: “The [D] efe ndant’s criminal conduct neither cause d nor threa tened serious bodily injury .” Tenn. Code Ann. § 40-35-113( 1). The cou rt n o t ed the Def endant’ s criminal convictions and past criminal conduct and applied enhanc emen t fac tor number

one. Be fore making its final deter mination, t h e co u rt considere d and applied mitigating fac tor number thirteen (that the Def endant pled g uilty without any ag ree ment, sparing the State the cost and expense of a tr ial).

Finding that the sentenc es should be serve d concur rently
, the court sentenc ed the Def endant as follows:

Count Charg e Disposition & Sentence

1 Possession with i ntent to sell a Schedule

VI controlled substanc e Merg ed with Count 2

2 Possession with i ntent to deliver a

Schedule VI

controlled substanc e 1 and 1⁄2 y ear s

3 Possession with i ntent to sell a Schedule

I I controlled substanc e Merg ed with Count 4

4 Possession with i ntent to deliver a

Schedule I I controlled substanc e 10 y ear s

5 Possession with i ntent to sell a Schedule I

controlled substanc e Merg ed with Count 6

6 Possession with i ntent to deliver a 10 y ear s

-4-Schedule I controlled substanc e

7 Speeding 30 day s

8 Simpl e possession of a Schedule VI controlled substanc e Merg ed with Count 2

The rec ord establishes that the trial court considere d and weig hed eac h fac tor in the case befor e making its final decision. The enhanc ement and mitigatin g fa ct o rs are supported by the

rec ord. Acc ording ly
, we c onclude that the record supports the t rial court’s sentenc ing decision in this case.

CONCL USI ON

I n consideration of the fore g oing a nd the re cord a s a whole, the judgme nt of the trial cour t is affirme d.

___________________________________ D. KEL L Y THOMAS, JR ., J UDGE

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