FILED

August 18, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997

STATE OF TENNESSEE, )

) No. 02C01-9608-CC-00261

Appellee )

) LAKE COUNTY

vs. )

) Hon. STEVE STAFFORD, Judge

TYRONE CLAY, )

) (Selling cocaine in an amount

Appellant ) greater than .5 grams - three counts)

For the Appellant: For the Appellee:

VANEDDA PRINCE CHARLES W. BURSON

Post Office Box 26 Attorney General and Reporter

Union City, TN 38261

(ON APPEAL) GEORGIA BLYTHE FELNER

Assistant Attorney General

Criminal Justice Division

STEVE DAVIS 450 James Robertson Parkway

District Public Defender Nashville, TN 37243-0493 

P. O. Box 742

Dyersburg, TN 38025-0742 C. PHILLIP BIVENS

(AT TRIAL) District Attorney General

JAMES E. LANIER

Asst. District Attorney General

P. O. DRAWER E

DYERSBURG, TN 38024

OPINION FILED: 

AFFIRMED

David G. Hayes

Judge
1

This appeal arises from the appellant's successful post-conviction claim of ineffective

assistance of counsel upon grounds that his trial counsel failed to perfect a timely appeal to this

court. See Tenn. Code Ann. § 40-30-213 (1995 Supp.)

2

The court ordered the instant sentences to run concurrently, but consecutively to the

appellant's outstanding parole violations. See Tenn. R. Crim. P. 32 (c)(3)(A).

2

OPINION

The appellant, Tyrone Clay, presents a delayed appeal challenging the

length of sentences imposed by the Lake County Circuit Court.1

 On the morning

of the appellant's scheduled trial, a plea agreement was reached, whereby the

appellant agreed to plead guilty to three class B felony sales of cocaine in

exchange for three concurrent sentences as a range I offender. The State had

previously filed notice of its intent to seek enhanced punishment of the appellant

as a range II, multiple offender based upon allegations of four prior felony

convictions. The trial court subsequently sentenced the appellant to three

concurrent eleven year sentences for these offenses. 2

 In this appeal, the

appellant specifically contends that the trial court failed to consider applicable

mitigating factors which resulted in an excessive sentence.

When a defendant challenges the length of the sentences imposed by the

trial court, this court conducts a de novo review conditioned upon the

presumption that the determination of the trial court is correct. Tenn. Code Ann.

§ 40-35-401(d) (1990). This presumption only applies if the record demonstrates

that the trial court properly considered relevant sentencing principles. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). We find that the record so

demonstrates; thus, the presumption applies. Furthermore, the appellant, and

not the State, bears the burden of showing that the sentences imposed were

improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401.

At the conclusion of the sentencing hearing, the trial court found three
3

enhancement factors applicable, (1) the defendant has a previous history of

criminal convictions; (8) the defendant has a previous history of unwillingness to

comply with the conditions of a sentence involving release in the community; and

(13) that the felony was committed while the defendant was on parole from a

prior felony conviction. Tenn. Code Ann. § 40-35-114 (1), -114(8), -114(13)

(1995 Supp.). These factors are not challenged in this appeal. Additionally, the

trial court found one mitigating factor appropriate for consideration, (1) the

defendant's criminal conduct neither caused nor threatened serious bodily injury, 

Tenn. Code Ann. § 40-35-113(1) (1990), and rejected the appellant's argument

that two other mitigating factors were applicable, namely: (6) the defendant,

because of his youth, lacked substantial judgment in committing the offense,

and, as a non-statutory mitigator, that the defendant entered guilty pleas to all

three counts. Tenn. Code Ann. § 40-35-113(6), -113(13).

 The appellant, at the time of sentencing, was twenty-eight years old with

a lengthy criminal history which included prior felony convictions for drug

offenses. There is nothing in the record to indicate that the appellant lacked

substantial judgment because of his age. See, e.g., State v. Logan, No. 02C01-

9609-CC-00297 (Tenn. Crim. App. at Jackson, Apr. 10, 1997); State v. Leggs,

No. 01C01-9511-CR-00391 (Tenn. Crim. App. at Nashville, Feb. 28, 1997). The

court properly rejected the appellant's "youth" as a mitigating factor. Moreover,

although this court has previously upheld consideration of guilty pleas as a

mitigating factor, see, e.g., State v. Jernigan, No. 01C01-9410-CR-0033 (Tenn.

Crim. App. at Nashville, Feb. 23, 1996); State v. Myers, No. 03C01-9409-CR00344 (Tenn. Crim. App. at Knoxville, Apr. 13, 1995), the appellant's motivation

in entering guilty pleas was self-serving, since the State agreed not to pursue

range II sentencing in exchange for his guilty pleas, and the record indicates that

the appellant was "rude," "uncooperative," and "adamant about going to trial." 

See, e.g., State v. Hayes, No. 01C01-9509-CC-00293 (Tenn. Crim. App. at
4

Nashville, Oct. 24, 1996); State v. Cagle, No. 01C01-9301-CC-00006 (Tenn.

Crim. App. at Nashville, Nov. 18, 1993), perm. to appeal denied, (Tenn. Mar. 28,

1994). Accordingly, we do not find error in the trial court's sentencing decision. 

This issue is without merit.

The appellant also contests the weight the trial court afforded to each of

the enhancement and mitigating factors. The presumptive sentence for a range I

offender of a class B felony is the minimum within the range, i.e., eight years. 

Tenn. Code Ann. § 40-35-210(b)(e) (1995 Supp.); Tenn. Code Ann. § 40-35-

112(a)(2). Beginning with the presumptive sentence, the trial court must then

"enhance the sentence within the range as appropriate for the enhancement

factors, and then reduce the sentence within the range as appropriate for the

mitigating factors." Id. There is no mathematical formula in determining the

appropriate sentence, 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 Sentencing Act and its findings are adequately supported by the

record. State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1995) (citing Sentencing Commission Comments, Tenn.

Code Ann. § 40-35-210; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see

Ashby, 823 S.W.2d at 169.). Again, the trial court found, and we agree, that

three enhancement and one mitigating factors are applicable. This issue is

without merit.

After a review of the record, we conclude that the sentences imposed by

the trial court are entirely justified and appropriate under the attendant

circumstances. Accordingly, the judgment of the trial court is affirmed.
5

____________________________________

DAVID G. HAYES, Judge

CONCUR:

__________________________________

JERRY L. SMITH, Judge

__________________________________

THOMAS T. WOODALL, Judge