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

Briefs M ay 6, 2003
STATE OF TENNESSEE v. DARWIN TREE CE
Direct Appeal from the Circuit Court for McNair y County No. 1547B Jon Kerry Blackwood, Judge

No. W2002-02738-CCA-R3-CD - Filed October 15, 2003

The defendant pled guilty to one count of delivering a Schedule I I controlled substance (Hy dromo rph one). He was sentenced to 50 months to be served with Corrections Manag ement Corp ora tion, a community-based a lternative, after service of 180 day s in the county jail. The defendant appeale d the sent

ence, c ontending

that it w as excessive. We hold that the trial court properl y r ejecte d mitigat

ing factor one because dr ug dea ling inhe rently involves t

he risk of bodily injury and that the defendant’s prior criminal behavior justified the sentence imposed. Finding no error, the judgment is affirmed. 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., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined. Gary F . Antrican, District Public Defender, and Rickey W. Griggs, Assistant Public Defender, for the appellant, Darwin Treece.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Elizabeth T. Rice, District Attorney Ge neral; and Jerry W. Norwood, A ssistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION

On June 10, 200 2, the McN airy County Grand Jury

returne d a four- count indi ctment ag ainst the defenda

nt, Darwin

Treece. He was char

ged with one count of delivering a Sche dule II controlled substance (Hy dromorph one), tw o counts of possessin g a Sche dule I I co ntroll ed subst ance (Hydromorphone ) with inten t to delive

r, and one count of posses si ng a Schedule I V controlled substanc e (Alpra

zolam) with

intent to deliver. On July 11, 2002, the defenda nt pled guilty to one count of delivering a Schedule I I controlled substance (a

Class C felony), and the other charges were dismissed.-2- Facts

A sentencing hearing wa s held at which the presentence investigation report was entered and the trial court heard argument from the defense that two mitigating factors should be a pplied. The defendant requested mitigation of his sentence, contending tha t his conduc t neith er caused nor threatened

serious bodily injury

and that he had accepted responsibility for his act ions. The tri al court found that the d

efenda nt’s prior history of crimin al behav

ior outwe ighed h is admissio n of guil

t and rejected the serious bodily injury mitigation factor. The defendant requested that he be g iven probation or house a

rrest. T he trial c ourt sent

enced th e defendant to 50 m

onths t o be serve d with Corrections Management Corporation, a community-based a lternative, after service

of 180 da ys i n the count y jail. The defe ndant filed a timely notice of appeal, claiming that the sentence was excessive. Analysis

A defendant

who challengeshis or her sentence has the burden of proving that the sentence imp osed by t

he trial c ourt is impr

oper. Te nn. Code A

nn. § 40-3 5-401, Se

ntencing Commiss io n Comments; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). When a defendant appeals the length, range , or manne

r of ser vice of h is or her sentenc e, it is the

duty of this Co ur t to conduct a de novo review o f the re cord with a presum ption the tr

ial cour t’s deter minations a

re corr ect. Tenn. Code Ann. § 40-35-401(d). The p resumption of correctness is conditioned upon the affirmative showing in the record that the trial court considered the sentenc ing principles a nd all relevant f

acts and circumstances. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999).

The sente ncing r ange for a standard offender convicte d of a Class C felony is not less than three years nor

more than six years. Tenn. Code A nn. § 40 -35-112. When both enhancing and mitigating factors are present, the court must start at the minimum sentence, enhance as appro priate within the range for the enhanc ement factors, then reduce the sentenc e within the range as approp riate

for the mitigating factors. Tenn. Code Ann. § 40- 35-210(e). We disagree with th e defendant’s contention that the tr ial cour t erred in failing to find tha

t his actions neither caused nor threatened

serious bodily

injury. The potential for se rious bodily injury

is inherent in the nature of drug dealing. State v. Holston , 94 S.W.3d 50 7, 512 (Te nn. Crim. App. 200 2). Thus, mitigating factor one (neither c aused nor thr eatened serious bodily injury) was prope

rly rejected by the trial court.
The trial court foundthat the defendant’s prior history of criminal behavior outweig hed his admission of guil t, and we agree. The def endan t has t hree pr ior dr ug- related con victions, seven driving while under the influe nce convictions, two assault convictions, and five other various convicti ons. The application of the prior criminal behavior enhancement factor

is supported by the record

. The def

endant ha s been co nvicted o f three prior dr ug offe nses, and ye t he conti nues to offend. The trial court’s sentence of f ourteen months above the minimum was not excessive.-3- Conclusion

We affir m the judg ment of the

trial cou rt.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE