### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
STATE OF TENNESSEE v. FRED HEGWOOD, JR.
Direct App eal from the C ircuit Criminal C ourt for W illiamson Coun ty

No. I-997-315-A Donald P. Harris, Judge

No. M1999-00781-CCA-R3-CD - Decided June 16, 2000

The Defendant was tried by jury in Williamson County and fo und guilty

of two counts of the

sale and delivery of heroin, possession of heroin, possession of cocaine, and possession of one half a n ounce or more marijuana with intent to sell or deliver. The trial court sentenced him to an effective sentence of nine and one ha lf years in carceration. I

n this appeal as of

rig ht, the Defendant argues that he received an excessive sentence. We conclude that his sentence was improperly enhanced on
one count. Accordingly, we modify the Defendant’s sentence to an effective sentence of nine years incarceration.
Tenn. R. App. P. 3; Judgment of the Trial Court Modified in Part.

W ELLES , J., delivered the opinion of the court, in which W ADE , P. J., and Riley, J., joined.
Cynthia M. Fort, Nashville, Tennessee, for the appellant, Fred He gwood, Jr.

Paul G. Summers, Attorney General and Reporter, Jennifer L . Bledsoe, Assistant

Attorney Ge

neral, Ron Davis , District Attorney General, Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On September 8, 1997, the Williamson County Grand Jury indicted the Defendant, Fre d Hegwood, Jr., for six counts of drug-related charges. Spec

ifically, he

was indicted for t

hree counts of the sale and delivery

of heroin (Counts I

-III ), one count of pos session of heroin w ith intent to sell and deliver (Count IV), one count of possession of cocaine with intent to sell and deliver (Count V), and one count

of possession of marijuana with intent to sell and deliver (Count VI). The State later dismissed one count of sale and delivery of heroin (Count I ). The Defendant and

his so n, Fred Hegwood, I II, were jointly tried by a Williamson County jury on May 12 and 13, 1999. The jury found the Defendant guilty of two counts of the sale and delivery of heroin (Counts II and III) , possession of heroin (Count IV), possession of cocaine (Count V), and possession of one half an-2-

ounce or more ma

rijuana with intent to sell or deliver (Count VI). A sentencing hearing was conducted

on Augu st 20, 1999, and the trial court imposed the following sentences: nine years incarceration

and a $10,000 fine for one count o f the sale of her oin (Count II

) ; nine and one ha

lf yearsincarceration and a $10,000 fine for the other cou nt of the sale of heroin (Count III) ; eleven months, twenty-nine

days incar

ceration and a $

2,500 fine for pos se ssion o f heroin (Count IV); eleven months, twenty-nine days incarce ration and a $2,500 fine for possession of cocaine (Count V); and two years incarceration

and a $5,000 fine for possession of marijuana with intent to sell or deliver (CountVI). The trial court sentenced the Defendant as a Range I standard offender

as to C ounts II, III, and VI and ordered that all sentences be served concur rently. The Defendant now appeals as of right, presenting only one issue for our review, whether the se ntences of nine years and nine and one half years imp ose d fo r Co unt s II an d III, r esp ect ive ly, were excessive. We modify the Defendant’s sentence for Count III a

nd affirm all other sentences.

T he charges in this case arose from a series of transactions between the Def endant an d Patrick Howell, an undercover agent with the Tennessee Bureau of Investigation. The proof at trial revealed that Howell first made contact with the Defendant on November 19, 1996, when he went to the De fendant’s home with a confidential informant and another individual to make a d ru g purchase. On November 19, Howell purchased three grams of heroin from the Defendant for $1,000. Howell wore an audio transmitter during the transaction, and audio tap es wer e recorded of the purchase. On December 4, 1996, Howell returned to the Defendant’s home, accom panied by the same two individual

s and again purc

hased three gr

ams of heroin

for $1,000. This transactionwas also audio-taped.

On February

27, 1997, Howell

and other law enforcement officers executed a search warrant for the Defendant’s home. Both the Defendant and his son, Fred Hegwood, III, were pr esent in the homewhen the officers arrived. When Howell entered the bedroom of the Defendant’s son, the son was attempting to throw a duffel bag out of his bedroom window. Howell and the son engaged in
a struggle for possession of the bag, and the son eventually man aged to thr ow the bag out of the window. It landed on th

e ground in

the front yard of the home, next to law enforcement officers who
were monitoring the outside of the home. Three pounds of mar ij uana packaged in plastic freezer bags were recovered from the duffle bag. In addition, law enforcement officers re covered heroin, cocaine, marijuana, numerous weapons, including an assault pistol, various drug paraphernalia,and a large amount of United States currency from the home.

At the sentencing hearing conducted on Augus t 20, 1999, Agent Joe Kimball of the 21 st Judicial District Drug Task Force test ified that he inve

stigated the De

fendant and his so

n for the sale of narcotics between March 19, 1999 and April 14, 1999 after he received information that they were selling cocaine ba se, commo nly known as “ crack cocaine

,” from their home . He stated that a cooperating informant purchased cocaine from the Defendant on March 19, March, 26, April 8, and April13 , 1999. On April 14, 1999, law enforcement officers conducted another search of the Defen dant’s home and recovered liquid Dilaudid, scales, various drug paraphernalia, marijuan a , cocaine (in both powder and base form), two handguns, bank documents, and a large amount of cash.-3-

Kimball also testified that his investigation indicated that the Defendant

was using both heroin and cocaine at the time of the investigation.

The Defendant

complains that the trial court erred by imposing an excessive sentence. The Defendant

contests only

the sentences imposed for Counts II and III, both for the sale of he roin. He argues that the trial court erred by enhancing his sentence for Count II on the basis of his prior drug usage. He further arg ues that the tr ial court erred by enhancing his sentence for Count III on the basis of his criminal activity in Count II. He points out that he has no prior convictions and contends that the trial court should ha v e imposed the minimum sentence of eig

ht years fo

r his offenses in Counts II and I

II, both Class B felonies. See Tenn. Code Ann. §§ 39-17-417(a), (b), 40-35-112(a)(2).

When an accused challenges the length, range, or manner of service of a

sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial c

ourt are corre

ct. Id. § 40-35-401(d). This presumption is “conditioned uponthe affirmative showing in the re cord that the tria

l court considere

d the sente

nci ng principles an

d all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentencing hea ring; (b) thepresentence re port; (c) the principles of sentencing and arguments as to sentencing al terna tives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitiga ting or enhanc ement fact ors; (f) any statement
ma de by the defendant regarding sentenc ing; and (g) the potential or lack of poten tial fo r rehabilitation or treatment. State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing proce dure, that the court imposed a lawful se

ntence after ha

ving given due

consideration an

d proper weig

ht to t he factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by the record, then we m ay n ot modify the sentence even if we would have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Furthermore, “[t]he presumptive s entence for a Cl

a ss B, C, D and E felony shall be the minimum sentence in the range if there are no enhancement or mitigating fac tors.” Tenn. Code Ann. § 4 0-35-210(c). When a defendant is convicted of a Class B felony a nd both enhancement and mitigating factors apply, the trial court must start at the minimum sentence in the range, enhance the sentence as appropriate

after considering the enhancement factors, and then reduce the sentence a s appropriate after considering the mitigating factors. See id. § 40-35-210(e).

In sentencing the Def

endant, the trial court stated that it had considered the Defendant’s presentencereport, the arguments of counsel , and the m itigatin g and enh

ancemen t factors . We conclude that the trial court considered the pertinent factors and principles under our sentencing law, including the evidence pr esented at trial.

Our review is th

us de no vo with a presumption of correctness.1 The Defendan t was fifty year s old at the ti me of sentenci ng.
-4- As to Count II, the sale of heroin, the trial court noted that the Defendant ha d a hi sto ry o f drug usage and therefore applied enhancement factor (1), which state s, “[t]he defendant has a history of criminal convictions or criminal behavior in addition t o tho se necessary to establish the appropria te range.” Id. § 40-35-114(1). Next, the trial court applied enhancement factor (1) t o Count III, reasoning

that the Defendan t’s conv iction in Count II constituted a previous criminal conviction for purposes of the enhancement factor. See id. Third, the trial court enhanced the Defendant’s sentence f

o r Count VI, again based on enhancement factor (1) a nd also based on evidence that the Defendant possessed two firearms, one in his bedroom and one in his car, at the time of the offe ns e charged in Count VI. Id .; see also id. § 40-35-114(9). Finally, the trial court applied mitigating factor (1), that “[t]he defendant’s criminal conduct neither caused nor threatened serious bodily injury.” Id. § 40-35-113(1). Howe ver, th e trial court maintained that this factor “carrie[d] little or no weight with the court because drugs, and especially the kind that Mr. Heg wood
was selling, are da

ngerous to not onl

y the person

that is using them,

but to society because of the acts of people who use drugs and the fact that there may be innocent victims.”

The Defendant contests only the length of his sentences for Counts I I an d III. We f

irst conclude that enhancement factor (1) was properly applied with regard to Count I I. A history of drug usage supports application of this factor. See State v. Alexander , 957 S.W.2d 1, 7 (Tenn. Crim. App. 1997); State v. Vanderford , 980 S.W. 2d 390, 4 07 (Tenn. Crim. App. 1997). The Defendant’s presentencereport indicates that the Defenda nt had a history

of drug usage . He reported pr ior abuse of marijuana, cocaine, and heroin. He also reported tha

t he began to use

cocaine in small

amounts at age forty-one and that his use of cocaine be came “out of control by age 48.” 1 In addition, he reported that he first used heroin at the age of 18 and last used it in 1996.

With regard to application of enh ancem ent fa ctor ( 1) to C ount III based on the Defendant’s saleof heroin in Count I

I, the State c

oncedes error

. While we agree

that the trial c

ourt err ed by enhancing the Defendant’ s sentence on the basis of his sale of

heroin in Count I

I, we nonethe

less conclude that enhancement factor (1) was properly applied to C ount III. As

previously stated, application of enhancement factor (1) may be based on a defendant’s prior drug usage, and here, the Defendant’s history of drug use supports application of this factor.
However, we must conclude that the Defendant’s nine and one-half yea r sentence for Count III should be modified. The trial judge based the nine-year sentence for Count II on the Defendant’s prior drug usage. T

he Defendant' s s entence for Count III

may not be en

hanced based up

on his conviction in Count II. Because we have concluded that e

nhancement fac

tor (1) was appr

opriately applied for sentencing in Coun t II, for which the Defendant rec eived a nine-year sentence, we accordingly modify the D efendant’s sentence for Count III to nine years incarceration.

The Defendant’s sentence for Co unt III is modified to nine years. In all other respects, the judgment of the trial court is affirmed.