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

Briefs J uly 17, 2002 STATE OF TENNESSEE v. FELIX M. LE ACH Direct Appeal from the Criminal Court for Williamson County No. II-1100-347 Timothy L. Easter, Judge

No. M2001-02258-CCA-R3-CD - F iled November 15, 2002

On November 13, 2000, a Willi amson County gra nd jury indicted the def

endant, Felix M. Leach, for possession with intent to sell or deliver cocaine, possessionof marijuana, and possession of drug paraphernalia. In a negotiate d plea agreement dated June 19 , 2 001, the d efenda nt pled g uilty as a Range II , multiple offender to each of the three counts of the indictment. The plea agr eement sp ec ified that the three sentences would run concurre ntly and that all remaining sentencing issues would be determined by

the tr ial co urt fo llow ing a se ntenc ing hea ring. After a sente ncing h earing, the trial cou

rt senten ced the d efenda nt to ten year s for possession with intent to sell or deliver cocaine, eleven months and twenty- nine days for e ach of the other two c ounts, an d ordered the sentences to be served consecutively to a previous sentence that he was on probation for at the time. The defendant raises two issues on appeal: (1 ) whether the ten-y ear sen tence f or posses sion with intentt o sell or deliver cocaine was excessive; and (2) whe ther the three sentences should be concurrent

or consecutive to the sentence for which he was on probation at the time. After reviewing the rec ord, we a

ffirm the judgmen t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J AMES C URWOOD W ITT , J R ., JJ., joined. John H. Henderson, District Public Defender, for the appellant, Fe lix M. Leach. Paul G. Summers , Attorney Gene ral and Repor

ter; Ang ele M. Gr

egory , Assistan

t Attorne y General ; Ronald L. Da vi s, District Attorney Gene ral; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION-2- FACTS On July 9, 2000, officers of the Franklin Police Department executed a searc h warrant at the defendant’s residence. During the search, two bags of coca

ine, marijuana, $2502 in cash, a digital titanium sc ale with

cocaine residue, a shotgun with a pistol grip, two sa wed-off shotguns, shotgun she ll s, and a brass knuckle-knife were r ecovered. The cocaine wa s found in the defendant’s bedroom in a nightstand

drawer withhis drive

r’s lice nse and a $5000 cr edit car d bill in his n ame. At th

e time of the sear ch, the de fendant w as on pro bation and serving an eight-y ear sentence for three 1999 cocaine convictions. The sentencing hearing wa s held on August 3, 2001. David Pratt of the Board of Probation and Parole, Officer Rodney Escobar of

the Franklin Police Department, and the defenda nt testified at the hearing.
Mr. Pratt testifi ed that he prepared the presentenc e report and that the defendant was on probation for prior drug convictions at the time of the i nst ant offenses. The defendant had bee n released just over three mo nths ear

lier fro m b oot ca mp on March 7, 2000. Mr. Pratt testified that the defend ant ha d three felony drug convictions, a misdemeanor weapons conviction, and se veral juvenile convictions, including a cocaine c onviction that would have been a felony had it been committed

by a n adult. Officer Escobar testified

that he was one of the officers who executed the July 9, 2000, search warrant at the defendant’s residence. According to his testimony , the loaded and chambered shotgun was found under the defendant’s bed in his bedroom. Severa l people, including a y oung child, were in the bedroom watching television. Officer Esc obar testified that the child was within a

few feet of the gun and th e cocai ne. He a lso t estified th at the defend ant, a fter b eing Mirandi zed , ad mitted that the c ocaine b elonge d to him and that he wa s making

$3500 wee

kly from the s ale of dr

ugs. The defendant testified that he was curre ntly serving a

n eight-y ear

sentence for three 1999 drug convictions. He denied that he was selling the drugs and claimed that he was just holding them for his cousin who “set him up.” He explained that his cousin would give him “fifty , one hundred dollars here and there”wheneve r he woul d come by

to pick up more cocaine. He said that his initial admission to owning the dr ugs was only to protect his fa mily. The defenda

nt testified that his legal problems were all drug-related a nd that if it “wasn’t for drugs, I never would have see n this courtroom.” ANALYSIS The defendant raises two issues on appeal: (1) whether the ten-year sentence imposed by the tria l court for possession with intent to sell or deliver cocaine was excessive; and (2) w hether hi s sentences should be concurrent or consecutive to the sentence for which he was on probation at the time.-3- I. Standard of Review When an accused

challenges the length and manne r of service of a sentence, it is the duty of this court to co nduct a de no vo review on the record with a presumption that “the deter minations made by the court fr

om which the appeal is taken are cor rect .” Tenn. Code Ann. § 40-35-401(d). This presumpt

ion is “co nditioned

upon the a

ffirmat ive showing in the r ecord that the trial court considered

the sente ncing p rinciple s and all r

elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 ( Tenn. 199 1). The p resumptio n does not apply to the leg al conclusions reached by the trial court in sentencing the accused or to the determinations made by the trial court whichare predicated

upon uncontroverted fact s. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994) ; State v. Bonestel , 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). However, this court is required to give g reat weight to the trial court’s determination of contro verted f acts as th

e trial c ourt's d

etermina tion of the se fact s is predi cated u pon t he wit nesse s’ dem eanor a nd app earance when t estifying.
In conducting a de novo revie w of a sentence, this court must consider (a) any evidence received at the tri al and/or

sentenc ing hea

rin g, (b) the presentence report, (c) the principles of sente ncing, (d) the arguments of cou n sel relative to sentencing alternatives, (e ) the nature and characteristics of the offense, (f) any mitigating or

enhancement factors, (g) any statements made by the accused in his own behalf, and (h) the acc used's potential or lack

of potential for rehabilitation or treatme nt. Tenn. Code Ann. §§ 40-35- 103, -210 ; State v. Sc ott , 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987)

. The party cha

llenging the sentences imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Com m ission Cmts.; Ashby , 823 S.W.2d at 169 . In this case, the defendant has the burden of illustrating the sentenc e imposed by

the trial court is e rroneou s. II. Length of Sentence The defendant argues that the trial court improperly se

ntenced him to ten yea

rs for possession withintentto sell or deliver cocaine. Sentencing the defenda nt as a Range I

I, multiple offender, the trial court imposed the maximum sentence.
In sentencing thedefendant, the trial court found no mitigating factors applicable but applied the following four

enhanc ement fa

ctors: (1) The defendant has a previous history of criminal convictions or criminal b ehavior in addition to those necessary to establish the appropriate range; (8) The defendant

has a previous history

of unwillingnessto comply withthe condi

tions of a sentenc e involvin g rele asein th e c om mu ni ty;-4- (13) The felony

was committed while on a ny o f the foll owing f

orms of rele ase statu s if such r

elease is from a p

rior fel ony

convicti on:

. . . . (C) Probation; and (20) The defendant was adjudicated to have committed a delinquent act or acts as a juvenile tha

t would con stitute a felony if committed by a n adult. Tenn. Code Ann. § 40-35-114(1), (8), (13)(C), (20). The defendant

do es not contest the application of the above enhancement f actors, and we conclude that the record of the sentencing he aring and the presentence report support the applica tion of eac h factor . According to the presentence r eport, the defendant has three prior coc aine felony convictions and a weapons conviction. Accordingly , his prior criminal h istory warra

nts the application of enhancement factor (1). In F

ebruary 1999, the defendant

was sentenced to nine years in Community Corrections for felony cocaine convictions. In Apr il 199 9, he test

e d positive for marijuana, the sentence was revoke d in Jul y 1999, and he wa s resentenced to eight y ears in the Department of Correction. The defendant wa s placed on probatio n after completing boot c amp in March2000 only to violate probation in June 2000 by te sting positive for cocaine. The instant offenses were a

lso committed while

on probation. Clearly, enha ncement factors (8) and (13) wer e properl y applied. As to enhancement factor (20), the de fendant, as a juvenile, pled guilty to sale or distributi on of coc aine, wh ich would have be en a fel ony

if committed by

an adult.
In determining the appropriate sentence for a felony

conviction, the sentencing court, if there are enhancement factors but no mitigating factors, may set the sentence above the minimum in that range but still

within the range. See

Tenn. Code Ann. § 40-35-210(d) (Supp. 1999); Stat e v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)

. There is no mathematical formula of evaluating the enhancement

factors to calculate the appropriate se ntence. See ge

nerally Boggs , 932 S.W.2d at 475. “Rather, the weight to be afforded an existing factor is left to the trial court's discretion so long as the court complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequa tely supported by the record.” Id. at 475-76 (citations omitted). The trial court, after weig hing and consider

ing the e nhance ment fac tors, impos ed the ma x imum s entence o f ten

ye ars. We conclude, upon de novo review, that imposition of a sentence of ten y ears is not excessive and is “the least severe measure necessar

y to achieve

the purposes for which

the sentence is imposed.” Tenn. Code Ann. § 40-35-1 03(4). T his issue iswithout me

rit. The de fe nd an t c on te nd s t ha t t he co ur t e rr ed in re fu si ng to ap pl y t he follo wing three mitigati ng fac tors:

(1) The defendant's criminal conduct neither caused nor thre ate ned se ri ou s b od il y in

ju ry;-5- (7) The defendant was motivated by a desire to provide necessities for the defendant's family

or the defendant's self; and (13) Any other

factor consistent with the purposes of this chapter. Tenn. Code Ann. § 40-35-113(1), (7), (13). The defendant argues that factor (1) should h av e been applied because the Tenne ssee Supreme Court has rejected

a per se exclusion o f this mitig ating f actor in cocaine possessio n cases. See State v. Ro ss , 49 S.W.3d 833, 849 (Tenn. 2001). However, in Ross , the supre me court also held that the dangerous nature of coc aine, combined with the dangerous nature of many drug tr ansacti ons, may indeed support the r

ejection of this factor as constituting a threat of serious bodily injury

. Id. at 848; see State v. Vanderford , 980 S.W.2d 390, 407 ( Tenn. Crim. App. 199 7); State v. Keel , 882 S.W.2d 410, 422 (Tenn. Crim. App. 1994). Here, the record shows that the defendant was running some type of coc aine distribution operation out of his home. Three shotguns were kept in his home, one of which was loaded

and unde r his bed, just a few

feet aw ay from a child. We cannot conclude that the trial court’s decision that this conduct posed a threat of serious bodily injury was improper. Therefore, the trial court correctly declined to apply this factor. The defendant next argues that factor (7) should have been applied because he testified that he used the m

o ney he made

fro m selling cocaine to help his family . Aside from this general assertion, no evidence of

any family

exigency or financial problems was offered. F urthermore, the defendant is unmarried

and has no children. We conclude that the trial court properly declinedto apply this factor. The defendant conten ds t hat fac tor (13) should hav e been a pplied be cause he

obtained his GED and attended college for a year a nd a half. On appeal, the defendant candidly acknowledges that there is no case law to suppor t the prop osition tha t further ing one ’s educa

tion qualif

ies as a mitigating factor “consistent with the purposes” of the sentencing statutes. See

Tenn. Code Ann. § 40-35-113(13). In fa

ct, a counter argument

could be made that a better educated defend ant would more appreciate the criminality of his actions than would one with less education. Likewise, a n argument could be made that a better educated defe ndant’s decision to sell drugs, rather than pursue employment

opportunities available becau se of that education, evidences a decision that selling drugs ismore pro fitable t han ga inful empl oym

ent. The record reflects that the trial court consider ed all of the mitigating factors and found that “none hold enough weight to mitigate the sentence.” We agree a

nd conclude that the argument is without merit. III. Conse cutive Se ntencing The defendant argues that the tria l court improperly orde

red the sentences from

the instant offenses to run consecutively to the eight-y ear sentence from the 1999 convictions.-6-

As a general rule, consecutive sentences are imposed at the discretion of the trial cour t upon its consideration of one or more of the following statutory criteria: (1) The defenda

nt is a pro fessiona

l crimina l who has k

nowingl y devotedsuch defendant’s life to criminal acts as a major sourc e of livelihood; (2) The defendan t is an off ender w hose rec ord of cr

iminal ac tivity is extensive; (3) The defend ant is a dang erous me ntally abnorma l person s o declared by a compete nt psychia

trist w ho conclu des as a r esult of an invest

igati o n prior to sentencing that the defendant’s criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indi ffere nce to consequ ences; (4) The defendant is a dangerous offender whose behavior indicates littleor no reg ar d for human life, and no hesitation about committing a crime in which the risk to human life is high; (5) The defenda

nt is convicted of two (2) or more statutory offense s involving sexual abuse of a minor with consideration of the aggrava t ing circumstances arising from the rela tionship between the defenda

nt and vic tim

or victims, the time span of defendant’s undetec te d s exual activity, the nature and sc ope of the sexual acts and the extent

of the residual, physic al and mental damage to the vic tim or vict

ims; (6) The defendant is sentenced for an offe nse committed while on probation; or (7) The def

endant issentenc ed for c

riminal c ontempt. Tenn. Code Ann . § 40-35 -115(b). These criteria are state d in the alternative; therefore, only one need ex ist t o supp ort th e appro priat eness of con secut ive se ntenc ing. The trial court applied criteria (1) and (6). The defendant only c ontests the appl ication of criterion (1). Criterion (6), which clearly applies, is not contested. Because only one of the statutory criteri a need ap ply for consecu

tive sente ncing to be prope r, the defendant ’s argument is ba seless. However, the record supports the trial court’s finding that the defendant

is “a professional criminal who has knowingly de

voted such defendant’s life to criminal acts as a major sourc e of livelihood.” See id. § 40-35-115(b)(1).-7-

The defendant has several convictions for the sale of drugs da

ting ba ck to whe

n he was a juvenile. The defendant admitted that his involvement in the drug trade is to provide extra income; however, the amount of money the de fendant made is unclear. At the sentencing hearing, Of ficer Escobar testified that the defendant stated that he was making $3500 weekly from drug sales. The defendant’s testimony was that he wa s being p aid $50 or $100 eve ry time his cousin came by to pick up more drugs. His personal statement was that he wa s making $2 0 0 biweekly fr om his job at Hardee’s restaurant. Even using the lowest figur e availa ble , the mone

y ma de from d rugs wa s a major source of the defendant’s livelihood. We conclude that the trial court properly found that

the defendant is a professional criminal under Tennessee Code Annotated section 40-35-115(b)(1). CONCLUSION Based upon the foregoing authorities and re asoning, we affirm the trial court’s judgments of conviction.

___________________________________ ALAN E. GL

ENN, JUDGE