# FILED

Au gust 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON AU GUST SESSION , 1997

STA TE OF TENN ESSEE, ) ) No. 02C01-9608 -CC-00261 Ap pellee ) ) LAKE COUNTY vs. ) ) Hon. STEVE STAFFORD, Judge TYRONE CLAY, ) ) (Selling cocaine in an amount Appellant ) greater th an .5 grams - three coun ts)
For the Appell ant : For the Appell ee : VANEDDA

PRINCE CHA RLES W. BUR SON Post Office Box 26 Attorney Gen eral and Repor ter Union City , TN 38261 (ON APPEAL) GEORGIA BLYTHEFELNER Assistant Att orney Gener al Criminal J ustice Div ision STEVE DA

VIS 450 James Roberts on Parkway Distric t Public Defender Nashvil le, TN 37243-0493 P. O. Box 742 Dyersburg, TN 38025-074 2 C. PHILLIP BIVENS (AT TRIAL) Distric t Attorney General JAM ES E. LA NIER Asst. Dist rict Attor ney General P. O. DRAW ER E DYERSBUR G, TN 38024

OPINION FILE D: AFFIRMED

David G . Hayes Judge1 This app eal arises from the appellant's successfu l post-conviction clai m of ineffective as sis tan ce of c ou ns el u po n g ro un ds tha t his tria l co un se l faile d to pe rfe ct a tim ely a pp ea l to th is cou rt. See Te nn. C ode Ann . § 40 -30- 213 (199 5 Su pp.)

2 The court or dered t he inst ant sent ences to r un concurr entl y, but consecu ti vel y t o the app ellant's o utsta ndin g pa role vio lations

. See Tenn . R. Crim. P. 32 (c)(3)(A). 2 OPINION
The appellant, Tyr

one Clay, presents a delayed appeal cha llenging the length of sentence s imposed by the Lake County Circuit Court. 1 On the morning of the appellant's scheduled tri al, a plea ag reement was reached, wh ereby the appellant agreed to plead guilty to three class B f elony sales of cocaine in exchange for three concurr ent sentences as a range I offender. The State had previousl y filed noti ce of its intent to seek enhanced puni shment of the appellant as a range II , multiple offender bas ed upon allegat ions of four prior felony convicti ons. The trial court subseq uently sente nced the appellant to three concurrent el even year sentences for thes e offenses. 2 In this appeal , the appellant specifically contend s that the trial court failed to consid er applicable mitigatingfactors whi ch resulted i n an excessi ve sentence.
When a defendant challenges the leng th of the sentences i mposed by the trial cour t, this cour

t conducts a de novo

review conditioned upon the presumption that t he determination of the trial cour t is correct. Tenn. Code Ann. § 40-35-401(d) (1990). This presumption only applies if the r

ecord demonstrate s that the trial court proper ly consi dered relevant sentencing principles

. Stat e v. Ashby , 823 S.W .2d 166, 169 (Tenn . 1991). W e find that the record so demonstrates; thus , the presumption applies. Fur thermore, the appel lant, and not the State, bears the burden of showing that the sente nces imposed were improper. Sente ncing Commis sion Comments, Tenn. Code Ann. § 40-35- 401.

At the conclusi on of the sentencing hearing, t he trial cour t found three3

enhancement factors appl icable, (1) the defendant has a prev ious histor y of criminal convictions ; (8) the defendant ha s a previ ous history of unwilli ngness to comply w ith the conditi ons of a sentence inv olving release in t he community; an d (13) t hat thefelony

was committed w hile t he defend ant was on pa role fr om a prior felony

convicti on. Tenn. Code Ann. § 40-35-114 (1) , -114(8), - 114(13) (1995 Supp.). Thes e factors are not challenged i n this appeal. Additionally , the trial cour t found one mitigat ing factor appr opriate for cons ideration, ( 1) the defendant's crimi nal conduct neit her caused nor threatened seri ous bodily injury , Tenn. Code Ann. § 40- 35-113(1) (1 990), and rejec ted the appellant' s argument that two other

mitigatingfactors wer

e applicable, namely: (6) the defendant, because of his youth, lacked sub stantial judg ment in committingthe offense, and, as a non-statutory mitigator, that th e defendant entered guilty pleas to all three counts. Tenn. Cod e Ann. § 40-35-113(6), -113(13 ).
The appellant, at t he time of sentencing , was twenty-eig ht years ol d with a lengthy

criminal hi story w hich included prior felony convicti ons for drug offenses. There is nothi ng in the record to indi cate that the appel lant lacked substantial j udgment because of hi s age. See, e. g. , State v. Log an , No. 02C01- 9609-CC-00297 (Tenn. Crim. Ap p. at Jackson, Apr. 10, 1997); State v. L eggs , No. 01C01-9511- CR-00391 (Tenn. Crim. App. at Nashvil le, 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 mitigatingfactor, see, e. g. , State v. Jer nigan , No. 01C01-941 0-CR-0033 (Tenn. Crim. App. at Nashvil le, Feb. 23, 1996) ; State v. Myers , No. 03C01-9409-CR00344 (Tenn. Cri m. App. at Knoxv ille, Apr. 13, 1995), the appel lant's motiv ation in entering guilty

pleas was

self-serv ing, sinc e the State agreed not to pursue range II sent encing in ex change for his guilty

pleas, and the record indicat es that the appellant was "rude," "uncooper ative," and "ada mant about goingto trial." See, e. g. , State v. Hayes , No. 01C01-950 9-CC-00293 (Tenn. Crim. App. at4

Nashvil le, Oct. 24, 199 6); State v. Cagle , No. 01C01-930 1-CC-00006 (Tenn. Crim. App. at Nashvil le, Nov. 18, 1993), perm. to appeal deni ed , (Tenn. Mar. 28, 1994). Accor

dingly , we do not find error in the trial court's sentenc ing decisi on. This issue is

without mer it.
The appellant also contests the weight the tr ial court afforded t o each of the enhancement and miti gating factor s. The presumptiv

e sentence for a range I offender of a class B felony is the minimum w ithin the rang e, i.e., eig ht 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 tr ial court must then "enhance the sentence within t he range as app ropriate for th e enhancement factors, and then reduce the sentence w ithin the rang e as appropriate for the mitigatingfactors." Id . There is no math ematical formula i n determining the appropriate se ntence, rather, the weig ht to be afforded an ex isting factor is left to the trial court's disc retion so lon g as the cour t complies w ith the purposes and principles

of the Sentencing Act and its findi ngs are adeq uately suppor ted by the record. State v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App .), perm. to appeal denied , (Tenn. 1995) ( citing Sent encing Commis sion 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 w e agree, that three enhanceme nt and one mitigating factors are ap plicable. This issue is without mer it.

After a revi ew of the recor d, we concl ude that the sentenc es imposed by the trial court are entir

ely just ified and appropri ate under the attenda nt circumstances . According ly, the j udgment of the tri al court is affirmed.5 ____________________________________ DAVID G. HA YES, Judge

CONCUR:

__________________________________ JERRY L. SMI TH, Jud ge

__________________________________ THOMAS T. W OODALL , Judge