### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ja nu ary 13 , 20 09 Ses si on

STATE OF TENNESS EE v . TALMADGE W AYNE BRADLEY

Appeal f rom the Circ uit Court for Law rence County No. 26533 Robert

Hollow ay, Judge

No. M2008- 00500-CCA -R3-C D - F iled Jul y 17, 2009

Appellant, Talmadg e W ay ne Bradle y , pled guilty in L aw re n ce C o unty to one count of poss ession of a Sche dule I I I substance with intent to sell. The trial court held a separate sentenc ing hear ing. At the conc lusion of the hear ing, the trial court de termined that enhanc ement fac tor (14), a buse of a position of public trust applied to Appellant. Appe llant was sentenc ed to four y ear s, one y ear to be serve d in incar cer ation and the rema inder to be serve d on probation. Appellant appea ls arguing that the enhanc ement fac tor was incorre ctly applied. After a thoroug h revie w of the rec ord, we have deter mined that enhanc ement fac tor (14) was applied inappropriately to Appellant. There fore
, we modify Appellant’s se ntence to two y ear s.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court is Modif ied and Aff irm ed.

J E R R Y L

. S M I T H , J
., delivere d the opinion of the court, in which D A V I D H. W E L L E S and R O B E R T W. W E D E M E Y E R , J J ., joined.

Edwar d J

. Gross, Nashville, Tenne ssee, and Gene Honea
, Frankin, Tenne ssee, for appellant, Talmadg e Way

ne B radle y

.
Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Cameron L

. Hyder, Assistant At t o rney Gene ral; and Mike B ottoms, Dist rict Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

F ACTUAL AND P ROCEDURAL BACK GR OUND

As a result of i n fo rm ati on from a confide ntial informant, the L awr ence County Sheriff’ s Depa rtment, in conjunction with the U.S. Postal Service
, set up a controlled buy

. Appellant, a postalcar

rier, was the targ et. The confide ntial informant sold App el l an t twenty L ortab tablets. The purcha se was captur ed o n b o th audiotape and videotape. When he was arr ested, Appellant had a total of 95 L ortabs, including 73 pills contained in a presc ription bottle presc ribed to him, two found on his person, and the twenty he had just purc hased f

rom the conf

idential informant.

I n J une 2007, the L awr ence County Gra nd J ury i n d i ct ed Appellant for one count of possession of a Schedule I I I controlled substance with intent to sell. On J anuar y 9, 2008, Appellant enter ed an ope n plea to Count 1, as cha rg ed. The trial court he ld a separ ate sentenc ing hear ing on Marc h 6, 2008. At the conclusion of the hear ing, the trial court found that one enhanc ement fac tor applied, T en n es see Code Annotated section 40-35-114( 14), “[ t] he defenda nt abused a position of public or private trust, or u s ed a profe ssional license in a manner that signific antly fac ilitated the commission or the fulfillment of the offe nse

. . . .” The trial cour t al s o found that one mitigating f actor applied, Tenne ssee Code Annotated section 40-35-113( 1), “[t ]h e d e f e n d a nt’ s c r im in a l c o n d

u c t neither cause d nor threatened serious bodily injury

. . . .” The trial court sentenc ed Appellant to four
y ear s as a Rang e I

standard of

fende r, with one y ear

to be serve d and the r emainder on probation.

Appellant filed a

timely notice of a

ppeal.

ANALYSIS

On appea l, Appellant argues that the trial court err ed in apply ing enhanc ement fac to r ( 14) and that the sentenc e of four y ear s split conf inement is e x cessive. “When revie wing sentenc ing issues

. . . , the appellate court shall conduct a de novo revie w on the rec ord of the issues. The revie w shall be conducte d with a presumption that the deter minations made by the court from which the appea l is taken are corr ect.” T.C.A. § 40-35-401( d). “[T] h e p re s umption of corr ectne ss ‘is conditioned upon the aff

irmative showing in the rec ord that the trial court considere d the sentenc ing principles and all rele vant fa cts and c ircumstance s.’” State v. Carter , 254 S.W .3d 335, 344-45 (Tenn. 2008) (quoting State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991)). “I f

. . . the trial court applies inappropriate mitigating and/or enhanc ement fac tors or otherwise fails to follow the Sentencing Act, the presumption of corr ectne ss fails.” Id. at 345 (citing State v. Shelton
, 854 S.W .2d 116, 123 (Tenn. Crim. App. 1992)). We are to also rec og nize that the defe ndant bear s “the burden of demonstrating that the sentenc e is improper.” Ashby , 823 S.W .2d at 169.

I n making its sentenc ing determination
, t h e t ri al court, at t he conclusion of t he sentencing hear ing, first deter

mines the rang e of sentenc e and then deter mines t h e s p ec i fic sentenc e and the appropr iate combination of sentenc ing alternatives by considering : (1) the evidenc e, if any , rec eived
at the trial and the sentenc ing hear ing; (2) the prese ntence repor t; (3) the principles of sentenc ing and arguments as to sen t encing alterna tives; (4) the nature and char acte ristics of the criminal conduct involved; (5) evidenc e and information offe red by the parties on the enhanc ement an d m i t i g ating fac tors; (6) any statistical information provided by the administrative office of the courts reg arding sentenc es for simil ar of

fense s, (7) a

ny statements the def

endant wishes to make in the defe ndant’s behalf about sentenc in g; an d (8) the potential for reha bilitation or treatment. T.C.A. §§ 40-35- 210(a) , (b), - 103(5); State v. W illiams , 920 S.W .2d 247, 258 (Tenn. Crim. App. 1995)

.

-2-When imposi ng the sentenc e within the appr opriate se ntencingrang e for the def endant:

[T] he court shall consider, but is not bound by
, the following a d vi s o r y sentenc ing g uidelines:

(1) The minimum sentenc e within the rang e of punishment is the sentenc e that should be imposed, beca

use the g ener al assembly set the mi n i m u m leng th of sentenc e for

eac h felony class to ref

lect the relative seriousness of eac h criminal offe n s e i n the felony classifications; and

(2) The sentenc e length withi n the rang e shoul d be adjusted, as appropri ate, by the prese nce or absenc e of mitigating and enhanc ement fac tors set out in §§ 40-35-113 and 40-35- 114.

T.C.A. § 40-35-210( c) (empha sis added)

. Howeve r, the we i ght g iven by the trial court to the mitigating and enhanc ement fac tors ar e l ef t t o the trial court’s discretion and are not a basis for

reve rsal by an appellate court of an imposed se ntence

. Carter , 254 S.W .3d at 345. “An a ppellate court is

. . . bound by a trial court’s decision as to the leng th of the sentence impos ed so long as it is imposed in a manner consistent with the purposes and principles set out in sections -102 and -103 of the Sentenc ing A ct.” Id. at 346.

We co n clude that there was no basis for the application of enhanc ement fac tor (14) in the deter mination of Appellant’s sentenc e. Th er e have been many case s that analy ze the question of when enhanc ement fac tor (14) applies to a situation of a defe ndant abusing a position of private trust. See State v . Gutierrez , 5 S.W .3d 641, 645-46 (Tenn. 1999). Howeve r, t he question in the case at hand deals specif

i cally with whether Appellant abused a position of public trust based upon his employ ment as a ma il carr ier.

We have found a few case s that apply this enhanc ement fac tor in the specific manner at issue in this case. In two case s, the application of enhanc ement fa ctor (14) was uphe ld when applied to city employ ees who used their positions to embezzle or falsify rec ords in order to steal money from the city g overnme nt by which they wer e employ ed. See State v. Chris Sullivan
, No. 01-C-019106- CR-001 6 6
, 1 9 9 2 W L 70550, at *1 (Tenn. Crim. App., at Nashville, Apr. 9, 1992); State v. Scott W yatt , No. M1998-00470-CCA-R3-CD, 1999 WL 1266338, at *5 (Tenn. Crim. App., at Nashville, Dec

. 29, 1999), perm. app. denied
, (Tenn. J ul. 31, 2000). In State v. Larry McKinney
, No. 01C01- 9307-CR-00234, 1995 WL 108257 (Tenn. Crim. App., at Nashville, Mar. 10, 1995), the trial court applied enhanc ement fac tor (14) when deter mining the sentenc e of a pastor of a Ba ptist churc h who had stolen money from his part-time employ er, a rec ording studio. This Court deter mined that the

en h an ce m en t fac tor did not apply beca use t he defenda

nt had not stolen from the churc h wher e h e
was a pastor and, there fore
, he “did not brea ch his posit i o n o f t rust with his churc h or as pastor beca use the money

he stole wa s not from the chur ch.” Larry McKinney , 1995 WL108257 at *1.

-3-At the sentenc ing hear i ng a postal inspector testified that the controlled buy in this case

orig inated with the rec eipt of information from a confide ntial informant that Appellant might be stealing drug s sent throug h the mail. I f these the fts had bee n the subject of the prosec ution in thi s
ca s e, t h e ap plication of the “abuse of a public trust” enhanc er might have been appropr iate. The conviction in this case howeve r, was an ordinary controlled buy of narc otics and there is no evidenc e in the rec ord Appellant’s position as a postal car rier was used in any way to acc omplish the offe nse. There fore , we c onclude that this enha nceme nt fac tor was inapplica ble to Appellant’s se ntence

.
Under Tenne ssee Code Annotated section 40-35-401( c)( 2), if a sentenc e is appea led, we may , “[a]ffirm, reduc e, vaca te or set aside the sentenc e imposed.” In this case , we have deter mined that the sentenc e s h o u l d b e re duced to two y ear s, which is the minimum for a Class D felony committed by

a Rang e I

standard of

fende r.

CONCLUSION

For the fore g oing r easons, Appe llant’s sentenc e is modified to two y ear s.

___________________________________ J ERRY L . SMI TH, JUDGE

-4-