# FILED January 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9704- CC-00134 ) Appe llant, ) ) SEVIER COUNTY ) V. ) ) HON. BEN W. HOOPER,JUDGE JERRY RONALD HARRIS , ) ) Appellee. ) (CON SPIRAC Y; SALE OF LS D)

FOR THE APPELLEE : FOR THE APPELLANT : BRYAN E. DELIUS JOHN KNOX WALKUP 124 Court Avenue, Sui te 201 Attorney General& Reporter Seviervi lle, TN 37862 PETER M. COUGHLA N Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 ALFRED C.SCHMUTZER, J R. District Attorn ey Ge neral CHAR LES AT CHL EY, JR . Assistant Distri ct Attor ney General Sevier County Courthouse Seviervi lle, TN 37862

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

In this case t he State appeals as of ri ght from the s entenc e imposed b y the Circu it Court of Sevi er County. The Defend ant, Jerr y Ronal d Harris, ple d guilty to conspiracy to sell LSD , a Class C felony , and to sal e of LSD, a Class B felony. The trialcourt ordered the Defend ant to serve six (6) years on the conspiracy cha rge and eight(8) yea rs for the sale o f LSD . The s enten ces w ere to b e serve d con curren tly in the Community Correct ions program with the f irst six (6) monthsof the sentence being incarcera tion in the S evier Co unty jail. The State chall enges the lengt h of the sentence for the sale of LSD and m anner o f service of b oth of t he Defenda nt’s senten ces. W e affirm the judgm ent of the tria l court.

When the lengt h, range o r the ma nner of s ervice of a sentence is c hallenged, this court has a duty to conduc t a de novo review of

the sentence wi th a presumpti on thatthe determinat ions made by thetrial court are correct. T enn. C ode An n. § 40- 35-401(d ). This presumption is “condi tioned upon t he affirmative showing in the record that the t rial cour t considered the sente ncing prin ciples an d all relevan t facts and circum stances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sen tence , this cou rtmu st consider: (a) the evidence, if any, received at the trial and the sentenci ng hearing; ( b) the presentence report; (c) the principl es of sentenci ng and arguments as to sentenci ng alternatives; (d) the nat ure and characterist ics of t he criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement that the d efendantmade on his own behalf ; and (g) t he potentialor lack of potentialfor rehabili tation or treatm ent. Tenn. Code Ann. §§ 40-35-1 02, -103 , and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).-3- If our revi ew reflect

s that thetrialcourt fol lowed the sta tutory sentencing procedure, imposed a lawfulsentence after having gi ven due consider at i on and properweight to th e factors a nd princip les set out underthe sentenci ng law, and made finding s of fact

adequately su pported by the record, then we may notmodify the sentence even i f we would have pr efe rred a differe nt result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

At the sentenci ng hearing, t he State did not present any proof ot her than a copy of a judgme nt showing D efendant wa s convicted of bu rglary on August 2, 1993 and the “Spe cific Data R eport,” which included ot her information of hi s prior r ecord. The Defendant and sever al witnes ses testi fied on th e Defendan t’s be half. Sh elly Shular, a former employer of the Defendant , stated t ha t he was an excellent employee during his two years at her business, Atrium Flowers. Shul ar stated t hat Defe ndan t’s attit ude improved thro ughout the tim e he was w orking for her, and that he was an honest and punctual employee. Shular wor ks with t roubled children from all types of

backgrounds, and some of the Defendant’s f riends in troduced her t o the Defen dant. Shular desc ribed Defen dant as “a young adult who needed acceptance badly and was going about it all the wrong ways . . . mos t likely out of imm aturity.” She stated that du ri ng t he t ime Defendant worked for her, he was l iving on his own while his parents lived i n Kentucky. Because he lived on his own, t he home bec ame a hang out for y oung peop le and trouble could transp ir e f reely. Shular saw Defendant hit rock

bottom and then begi n to change his l ife. She stated th at while she had never test ified on behalf of somebody in a drug si tua tion due to the extensive harm that drugscan do, she fel t that Defendant had a chance at changin g his life. Dur ing this time, D efend ant ha d a diffic ult time find ing employment, but came to her and agreedto perform household cleaning tasksin return for m oney to suppo rt his family.-4- Robert Ownby, a friend of the Defendant , testified that he met Defendant the summer prior to his senior yearof high school . Defendant was new t o the area and was ostraciz ed by the rest of his peers, even to the poi nt that Defendant was beaten by others at s chool. Fol lowing graduation, Ownby saw the Defendant start hangi ng out with the “wr ong cro wd.” Du ring this time , Defend ant s topped ass ociating w ith Ownby because Ownby was married and had a child. Followingthe last convicti ons Defendant received, Ownby saw a true change i n th e Defendant. Defe ndant had asked for spiritual co unseling and ap peared to be truly rem orseful.

J.R. Harris, Sr., theDefenda nt’s father, testified that he move d to Ke ntuck y in December 1989. He served as the Chief of Police i n Middlesboro, Kentuckyuntil he returned to Ten ness ee in D ecem ber 19 94. Ha rris des cribed his son as an average studentwho had never had any violent tendencies and was a lways w illin g to he lp others in need. Appro ximately s ix (6) mon ths befor e his return to Ten ness ee, H arris had the first in dicatio n that D efend ant wa s using drugs . Since July 1995 , Harris has seen a cha nge in the De fenda nt. De fenda nt now has a child that he i s tryi ng to take respon sibility forand raise. He was of the opi nion that Defendant has demonstrated thathe is sorr

y for hi s actions by

voluntar ily enr

ollingin a drug rehabil itati on pro gra m.

The Defendant stated that his actions sur rounding the convicti ons were “the worse [sic] mistake I ever mad e in my entire life.” He testified t hat he did not make a living selling dr ugs, no r had he ever sold drugs p rior to the night in questi on. When asked to tellwhy he committed t he drug offen ses, Defendant stated that he had received a cal l from a bank employee a couple of day s earlier statingthatif he did not pay a totalof three(3) car payments, then th e ban k was going to repo sses s his car. After

going to several banks to try to secure a loan and bei ng refused, the next-5-

thing Defen dant k new he w as selling LSD to a friend in order to m ake som e extra money to pay

for h is car . Atthat ti me, Defendant stated thathe h ad a dru g probl em, includi ng using LSD, cocai ne, Maximum Impact, and mari jua na. Tocure his dr ug addicti on, Defen dant vo lun taril y en ter ed hi msel f i n a d rug reh abi li tat ion pro gra m. W hile the De fenda nt was in reha bilitation , all his drug screen s were neg ative and he has be en drug free since then.

The Defendant stated that the birth of h is son h as ch ange d his life the mo st. Def endant admitted his m istakes, but stated tha t since his child has b een born h e has not been in any

troub le. He has held a steady job and has done whatev er he could to suppo rt his family. D efenda nt is also w orking on a progra m with his fri ends to begin v isiting local sc hools to te ach ch ildren abo ut the dan gers of L SD.

L ENGTH OF SENTENC E

The State argues t hat the trial court improperly

applied t hree (3) mit igating factors in dete rmin ing th e Defend ant’s sentence , and even if these factors are accepted, the sentence shoul d be increased because the trial court did n ot follow its own finding s of fact . Followi ng the proof at the sentenci ng hearing, t he t rial cou rt stated that he too k into consi deration mit igating and enhancement factor s. First , he noted thathe did notconsider t he mitigat ing factor of Defendant ’s “yout h” in that he lacked substant ial j udgment in committi ng the offense. Tenn. Code Ann. § 40-35- 113(6). The trialcourt stated that he di d not “cons id er that in thi s case because [Defe ndan t] had really reached the poi nt that I would not consi der [him] to be a young man, at age twenty-four (2 4), when this offen se was co mmitted. H owever, the court expanded to say that “even though I am not consider ing specif icall y youth, I have taken i nto consider ation that

for other

reasons, maybe, y

ou did, obviously,-6-

lacksubstantial judgm ent.” Wh ile not sp ecifically stated, it appears that the tri al court was referri ng to Tennessee Code Annotat ed section 40- 35-113(13), the “catch all” mitigating factor, whe reby the tria l court ma y take into considerat ion anyfactor which is c onsisten t with the pu rposes of the 198 9 Sente ncing A ct.

The next mitigating factor ap plied by the trial court was that th e Defendant was “motivated by desire t o provide what

is called ne cessities . . . to life. And in thi s day and age, mayb e, an autom obile is a necess ity.” See Tenn. Cod e An n. § 40-35- 113(7). Anothe r miti g ating fac tor appli ed by the trial court was that th e Defendant assisted the authorities. Ten n. Code A nn. § 40-35-1 13(9). A letter from a detective in the narcotics division of the Sevier C ounty S heriff’s De partme nt was inc luded w ith the record which documents that the Defendant

was helping to assist i n an ongoing drug inve stigation.
Then, the tr ial court

turned to t he applicat ion of enhancement factors. First, the trial co urt found t hat Defendant, as one who helped to obtain drugs for the undercover

police of

ficer, was a leader i n the commission of this of fense. Tenn. Code Ann. § 4 0-35-11 4(2). Also, the t rial court stated that Defendant obviously

had a previous hi story of

unwilli ngness to comply wi th the conditi ons of a sentence t hat involved release i nto the c omm unity, noting tha t Defend ant was not able to succ essfu lly complete probat ion on other matter s. Tenn. Code Ann. § 40-3 5-114(8). The next enhancement factor appli ed by the trial court was that th e Defendant had no hesitat ion about committ ing a cri me when the risk to human life w as high, spec ifically referrin g to the nature of the drug LSD. Tenn. Code Ann. § 40-35- 114(10). The final enhancement factor was t hat the Defendant was on probati on for a burglary

offense at

the time t hese offenses wer e committed. Tenn. Code Ann. §-7-

40-35-114 (13)(c). The trialcourt then stated that “the enha n cement factors far outweigh the mitigating factors in this ca se.”
Upon review of

the record , the trial c ourt’s fin dings of the a pplica ble enhance me nt and mitigat ion factors were appropr iate, except for t he use of the enhancement factor t hat the Defendant had no hes it ati on ab out commi tt ing a cr ime when the risk

to human life was high. Tenn . Code Ann. § 4 0-35-11 4(10). Without more than the inherent tr aits of a drug, t he nature of LSD cannot be used to enhance a sentence under factor (10) . Prior case law ha s esta blishe d that th is is true for an offense inv olving cocaine and other Schedule II drugs, and we fi nd that the legislature h as also alread y cons idered the inh erent n ature o f the dru g LSD in determining the length of punishm ent. See State v. Mars hall , 870 S.W.2d 532, 542 (Tenn. Cri m. App. 1993). Theref ore, the tri al court’ s applicat ion of thi s enhancement factor, without any

other cir

cumstances present t o justi fy a f inding that Defendant had no hes ita ti on t o co mm it an off ense when the ri sk to human lif e was high, was incorrec t.

The State argues t hat the Defendant ’s sentenc e should be modifi ed and increased to eleven (11) years on t he LSD sale because the tri al court gave wei ght to mitigating factors wh ich did no t apply. Th e State c ontend s that even if the t rial court’s application of mit igating and enhancement factors is ac cepted, a mini mum sentence was u nwarr anted beca use th e tria l court s pecifi cally ruled that the enhancement factors ou tweighed the mi tigati ng factors. For our rev iew, the tri al court m ust pre serve in the re cord th e facto rs it foun d to ap ply and the sp ecific findin gs of fact upon which it applied t he sentencing principl es to arrive at th e sentence. T enn. Cod e Ann. §§ 4 0-35-210(f) an d -209(c).-8- The State c onten ds tha t the D efend ant rec eived th e min imum sente nce fo r his crimes. In reality, the Defenda nt received the m inimum s entence for the Class B felony, the sale of LSD , and received the maximu m senten ce for the Class C felony, consp iracyto sell LSD . Tenn. C ode An n. § 40-3 5-112(2 ) and (3). B eginning with the presump tive sentence, the trial cou rt must “e nhanc e the sentence wi thin the range as appropriate for the e nhancement factors, and then reduce the sentence within the range a s appro priate for the mitigating factors.” T enn. C ode An n. § 40-35- 210(b)(e). Ther e is no math ema tical formula i n determ ining the a ppropria te sentence, rather, the we ight to b e afford ed an existing factor is left to the trial cou rt’s discreti on so long as the court compli es with th e pur poses and principl es of the Sentencing Act and its findings a re adequate ly s upporte d by the re cord. State v. Hayes , 899 S.W.2d 175, 18 5 (Ten n. Crim. A pp. 199 5). By placing a n umeric value on the enhancement and miti gating fac tors, t hat removes the j udicial discret io n necessa ry to mak e individua lized sen tencing d etermin ati o ns. Ten n. Cod e Ann. § 40-35-210, Senten cing Co mm ission C omm ents, see S tat e v. Shropsh ire , 874 S.W .2d 634 , 642 (T enn. C rim. App . 1993).

From our review of the r ecord, it i s evident th at the trial c ourt co nside red all the evidence i n this case and, in li ght of the various m itigat ing and enhancement factors, felt that a concurren t sentence of e ight (8) years was the most approp riate sentence for the D efend ant. T he pu rpose of sen tencin g is based on general principles, and the Sentencing Act can only be applied on a case by case basis, dependent upon the facts of each case and the circum stance s of each defend ant. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 19 86). While the t rial cour t stated that the enhance ment factors o utweighed th e mitigating factors, w e have found that one of these enha ncem ent fac tors relie d upo n by the trial cou rt is in applicabl e. Even though applic ation o f one e nhan cem ent fac tor was in error, the trial court otherwise-9-

correc tly appli ed the se ntenc ing prin ciples to the fa cts an d circu msta nces of this case. The lengt h of sentenc es imposed were not i n error, and this i ssue has no merit.

M ANNER OF SERVIC E OF SENTENCE

The State argu es th at the trial court’s placement of the Defendant i nto the Com munity Correctio ns program is i mpr oper given t he Defendant’s persistent abuse of probatio n. The trialcourt noted that the pr oof submitted was strong i n the Defe ndan t’s favor. The trialcourt stated that he believed Defe ndant was sincere and was ready to c onduct himself as an exemplary citizen. He did not perceive the Defendant to be a drug dealer and thoughtthat ad ditiona l time o f incarc eration would not, therefor

e, serve a deterren t effect. The tr ial court further stated th at he was giving the Defe ndant “ a second, if not thir d or fourt h, chance” by pl acing him on Com munity C orrection s. The Community Correcti ons Act allows ce rtain eligible o ffenders to participa te in comm unity-bas ed altern atives to inc arceratio n. Tenn . Code Ann. § 40-36- 103. A defendant must f irst bea su itable can didate for a lternative se ntencing . If so, a defendantis then eligi ble for par ticipation in a community correc tions program if he also satisf ies severalmi nimum eligibi lity criteria set forth at Tennessee Code Annotated secti on 40-36-106(a) . However, even though an offender meets the requirem ents of eli gibility, t he Act does notprovide t hat the offend er is au toma tically entitl ed to such relie f. State v. Grandbe rry , 803 S.W.2d 706, 707 (Tenn. Cr im. App. 1990); State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Rather, t he statute provides t hat the criteria shal l be interpreted asminimum standards to guide-10-

a trial cou rt’s dete rmina tion of w hethe r that offe nder is eli g ible for com munity corrections. Te nn. Code Ann. § 40-3 6-106(d).

Wh ile Defendan t was not presu med as a favorable can didate for alternative sentencing under Tennessee Code Annotated sectio n 40-3 5-102 (6), he is eligi ble. The record support

s the t rial c ourt’s co nclusion t hat Defendant was a pr oper candid ate for Community Corrections, based upon h is conviction of a drug-rel ated, non-viol ent felony

offense a nd the fact that wit hout this

option, h e would be incarcerated in a correct ional i nstitut ion. Tenn. Code Ann. § 40-36-106. Furthermore, Defendant did not demonstrate a present or pastpattern of violence, and the evidenc e supp orts such a finding. Id
. Upon our de novo review, the State be ars the burd en of provi ng that the sentence is improper. Tennessee Code Ann otated sec tio n 40- 35-10 2(3) (C) states that“Punishment shal l be imposed to prevent crime and promote respect for the law by enco uragin g effec tive reh abilitatio n of tho se de fenda nts, wh ere rea sona bly feasibl e, by promoting the use of alternative sentencing and correcti onal pro gra ms thatelici t voluntary cooperat ion of defenda nts.” While t he State argues t he Defendant is an unsuitable candidate because he has fai led to fully com ply with the terms of prob ation o n an e arlier se ntenc e, the tria l court has the d iscretion to determine that thi s Defendant is a suitabl e candidate based upon his remorse and the fact that he was a co ntributing m embe r of society at the ti me of the sentencing hearing. A defendant’s expression of

great remorse i s a proper consi deration f or the trialcourt d uring sen tencing. See State v. Bingham , 910 S.W.2d 448, 454 (Tenn. Cri m. App. 1995). Duri ng the sentenci ng hearin g, the D efend ant sp oke fre ely of his
r emorse for h is action s and of his inte nt to rem ain so ber in o rder to supp ort his family. In addit ion, Defendant demonstrated hi s abili ty to suppor t himself and to be-11-

a productive member of the co mmu nity by work ing on a re gular ba sis. The State has n ot me t its burd en on appe al.

Based u pon our de novo review of the re cord, w e fail to find any error i n the length or the m anner o f service of th e Defe ndant ’s sentence. We affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ DAVID G. HAYES, Judge