IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 19, 2009 at Knoxville

STATE OF TENNESSEE v. DELARIE KATRICE PURNELL

Appeal from the Circuit Court for Marshall County

No. 08CR43 Robert Crigler, Judge

No. M2008-02333-CCA-R3-CD - Filed October 27, 2009

The Defendant, Delarie Katrice Purnell, pled guilty to sale and delivery of a Schedule VI controlled

substance (counts 1 and 2), sale and delivery of a Schedule II controlled substance (counts 3 and 4),

sale and delivery of a Schedule I controlled substance (counts 5 and 6), speeding (count 7), and

simple possession of a Schedule VI controlled substance (count 8). At the sentencing hearing, the

trial court denied alternative sentencing. The Defendant appeals, arguing that her sentence is

excessive and contrary to law. Citing the Defendant’s previous criminal convictions and criminal

conduct, the court ordered the Defendant to serve an effective sentence of ten years as a Range I

Standard Offender. After reviewing the record, we affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

D.KELLY THOMAS,JR., J., delivered the opinion of the court, in which JAMESCURWOOD WITT,JR., 

and NORMA MCGEE OGLE, JJ., joined.

Donna Orr Hargrove, District Public Defender; Michael J. Collins and William Harold, Assistant

District Public Defenders, attorneys for appellant, Delarie Katrice Purnell. 

Robert E. Cooper, Jr., AttorneyGeneral and Reporter; Clarence E. Lutz, Assistant AttorneyGeneral;

Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District

Attorney General, attorneys for appellee, State of Tennessee. 

OPINION

The facts are not in dispute. The Defendant stated, in a written statement after her arrest, that

she traveled from Indianapolis to Houston, Texas with a friend from work. Upon arriving in

Houston, the friend rented a car and they went to a hotel in Houston for the night. The next day, a

Monday, the Defendant left her friend to meet a man named Rob at the KentuckyFried Chicken next

to the hotel. The Defendant bought two pounds of marijuana and fifteen ecstasy pills from Rob. On

Tuesday, the Defendant met Rob at a liquor store and purchased a small amount of cocaine for her
cousin. Her cousin wired her five hundred dollars to cover his share of the marijuana purchase. On

their drive back to Indianapolis, the Defendant was pulled over by Tennessee Highway Patrol

Trooper Wayne Dunkleman for speeding.

Trooper Dunkleman testified at the sentencing hearing. According to Trooper Dunkleman,

he stopped the Defendant on Interstate I-65 for going 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” emanating from

the car and from the Defendant. After talking to the passengers, he allowed his canine to circle the

vehicle. The canine reacted to the smell of marijuana on the “driver’s side door and the left trunk

area of the vehicle.” Upon noticing the canine’s reaction, he told the occupants, including the

passenger who had rented the car in her name, that he “already had probable cause to search the

vehicle.” At that point, the passenger said “go ahead and search whatever you want.” Trooper

Dunkleman asked the Defendant if there was any marijuana in the car. He testified that the

Defendant “stated that there was a marijuana blunt in the ashtray and she would show it to me if I

would let her go home.” He refused and advised the Defendant of her Miranda rights. The

Defendant then began “kicking stones” and “cussing loudly.” 

TrooperDunkleman stated that he noticed that the passenger was shivering. While retrieving

a jacket from the trunk for the passenger, he noticed a “very strong odor of what [he] believed to be

raw marijuana.” When DeputyLindsayCook of the Marshall County Sheriff’s Department arrived,

Trooper Dunkleman and Deputy Cook searched the vehicle and found a marijuana blunt in the

ashtray, three packages of marijuana in a blue, Nike duffle bag, a plastic bag containing cocaine, and

thirteen Ecstasy pills. 

Therese Frazier of the State of Tennessee’s Department of Probation and Parole also testified

at the sentencing hearing. She stated that the Defendant had two prior felony convictions of burglary

and received a four year sentence. She was ordered to serve 210 days before being released on

probation. According to Ms. Frazier, the Defendant had been to two treatment programs for her

addiction to cocaine. 

ANALYSIS

The Defendant’s sole issue on appeal is that the trial court imposed an excessive sentence. 

An appellate court’s review of sentencing is de novo on the record with a presumption that the trial

court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2005). The appealing party

has the burden of showing that the imposed sentence is improper. Id. If review of the record reflects

that the trial court properly considered all relevant factors, gave due consideration and proper weight

to each factor, and its findings of fact are adequately supported by the record, this court must affirm

the sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Should the record

fail to demonstrate the required considerations by the trial court, then appellate review of the

sentence is purely de novo. Ashby, 823 S.W.2d at 169. In this respect, for the purpose of

meaningful appellate review,

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[T]he trial court must place on the record its reasons for arriving at the final

sentencing decision, identify the mitigating and enhancement factors found, state the

specific facts supporting each enhancement factor found, and articulate how the

mitigating and enhancement factors have been evaluated and balanced in determining

the sentence. Tenn. Code Ann. § 40-35-210(f) (1990).

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

In conducting its de novo review, the appellate court must consider (1) the evidence, if any,

received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) any statement that the

defendant made on her own behalf, and (7) the potential for rehabilitation or treatment. 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 (Tenn. 1986).

The Defendant committed this offense on February 27, 2008; thus, she was sentenced under

the revised sentencing act as enacted by the Tennessee General Assembly in 2005. The act provides:

(c) The court shall impose a sentence within the range of punishment, determined

by whether the defendant is a mitigated, standard, persistent, career, or repeat violent

offender. In imposing a specific sentence within the range of punishment, the court

shall consider, but is not bound by, the following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assemblyset the

minimum length of sentence for each felony class to reflect the

relative seriousness of each criminal offense in the felony

classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114.

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

The weight to be afforded an enhancement or mitigating factor 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 the court’s findings are adequately supported by the record. Id. § (d)-(f); State v. Carter, 254

S.W.3d 335, 342-43 (Tenn. 2008). “An appellate court is therefore bound by a trial court’s decision

as to the length of the sentence imposed so long as it is imposed in a manner consistent with the

purposes and principles set out in . . . the Sentencing Act.” Carter, 254 S.W.3d at 346. Accordingly,

on appeal we may only review whether the enhancement and mitigating factors were supported by

the record and their application was not otherwise barred by statute. See id. 

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In imposing a sentence, the trial court may only consider enhancement factors that are

“appropriate for the offense” and “not already . . . essential element[s] of the offense.” Tenn. Code

Ann. § 40-35-114 (2006). These limitations exclude enhancement factors “based on facts which are

used to prove the offense” or “[f]acts which establish the elements of the offense charged.” State

v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994). Our supreme court has stated that “[t]he purpose of

the limitations is to avoid enhancing the length of sentences based on factors the legislature took into

consideration when establishing the range of punishment for the offense.” State v. Poole, 945

S.W.2d 93, 98 (Tenn. 1997); Jones, 883 S.W.2d at 601.

After reviewing the record, we conclude that the trial court considered the necessary

sentencing principles and the relevant facts and circumstances in this particular case. Therefore, we

will conduct a de novo review on the record, with a presumption that the determinations made by

the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 

At the sentencing hearing, the State proposed the following enhancement factor: “The

[D]efendant has a previous history of criminal convictions or criminal behavior, in addition to those

necessary to establish the appropriate range.” Tenn. Code Ann. § 40-35-114. In return, the

Defendant proposed one mitigating factor: “The [D]efendant’s criminal conduct neither caused nor

threatened serious bodily injury.” Tenn. Code Ann. § 40-35-113(1). The court noted the

Defendant’s criminal convictions and past criminal conduct and applied enhancement factor number

one. Before making its final determination, the court considered and applied mitigating factor

number thirteen (that the Defendant pled guiltywithout any agreement, sparing the State the cost and

expense of a trial).

Finding that the sentences should be served concurrently, the court sentenced the Defendant

as follows: 

Count Charge Disposition & Sentence

1 Possession with intent to sell a Schedule

VI controlled substance

Merged with Count 2

2 Possession with intent to deliver a

Schedule VI controlled substance

1 and 1⁄2 years

3 Possession with intent to sell a Schedule

II controlled substance

Merged with Count 4

4 Possession with intent to deliver a

Schedule II controlled substance

10 years

5 Possession with intent to sell a Schedule I

controlled substance

Merged with Count 6

6 Possession with intent to deliver a 10 years

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Schedule I controlled substance

7 Speeding 30 days

8 Simple possession of a Schedule VI

controlled substance

Merged with Count 2

The record establishes that the trial court considered and weighed each factor in the case

before making its final decision. The enhancement and mitigating factors are supported by the

record. Accordingly, we conclude that the record supports the trial court’s sentencing decision in

this case.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the trial court

is affirmed.

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D. KELLY THOMAS, JR., JUDGE

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