### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 19, 20 05
STATE OF TENN ESSEE v. PATRIC K JOHN MARSHALL Appeal from the Circuit Court for Madison County

No. 03-587 Roger Page, Judge

No. W2004-01593-CCA-R3-CD - Filed June 17, 2005

The defendant, Patrick John Marshall, entered pleas of guilt to one count of possession of cocaine with intent to sell and one count of pos ses sion of marijuana in exchange for an eff ective sentence of twelve y ears, to be serve d on commun

ity c orrect ions. The trial cou rt later revoked the commu

nity
cor rec ti ons sen ten ce a nd, aft er a sen ten cin g he ari ng, im pos ed a Ran ge II sentence of twenty ye ars' incarceration. In thi s appeal , the defendant asserts that the sentence is excessive. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined.
David H. Crichton, Assistant Public De fender , for the

appella nt, Patrick John Marshall.
Paul G. Summers, Attorney Gene ral & Reporter; Benjamin A. Ball, Assistant Attorney General; and Jim Thompson, Assistant District Attorney General, for the a ppellee, State of Tennessee.
OPINION
OnDecember 18, 2003, the defendant pled guilty to one c ount of possession of more than .5 grams of cocaine with intent to sell and one count of possession of marijuana. See Tenn. Code Ann. §§ 39-17- 417(a)(

4), -418( a). Pursu

ant to a plea agreement, the trial c ourt imposed concurrent sentences of

twelve ye ars and e leven mon ths and twe

nty -nine da

ys, to be ser

ved on co mmunity
corrections. On April 7, 2004, a community corr ections violation warrant was filed wherein it was alleged that the d

efenda nt had viol ated the

terms of his sen tence by f ailing to pay c ourt costs and fines, by failing to c omplete a drug and alcohol treatme

nt progr am, and by

failing to repor t his arre st for burglary , possession of a Schedule IV controlled substanc e, and public intoxication.
At the revocation

hearin g, Marcus Jones, the defendant's community corrections supervisor, testified that the defendant failed to pay any of the c ourt costs or fines associated wi th hi s-2-

convicti ons. Jones stated tha t the def endant a lso faile d to repor

t a new a rrest an d failed to complete
a drug an d alcohol treatment program. Accor ding to Jones, the defendant entered a residential treatment progra m at Aspel l Manor in

Februa ry of 2004, q

uit the pro gram th e following month without completing treatment, and was arrested one week later.
The defendant admitted that he had not paid the fines and cour t costs, explaining that he used the money instead to "g [e]t drunk and . . . d[o] cocaine." He also acknowledged h aving le ft t he treatment progra m after d oing dru gs for " half the

night" while ou t on a pass with his fiancée. He testified that he di d not report his new arrest b ecause

the jaile rs would not allo w him acc ess the telephone number of his community c orrections supervisor.
At the conclusion o f the he aring, the trial court re voked the

defenda nt's com munity corrections sentenc e based u pon his fa ilure to report

the new arrest, his failure to pay court costs, and his failur e to compl ete the d

rug re habilitat ion prog ram.
At the sentencing hearing, the de fendant made an unsworn statemen t, see Tenn. Code Ann. § 40-35-210(6), claiming

that he entered into the plea ag reemen t again st the advice of hi s counsel

. He claimed that he was not really guilty of the c

rimes charged and entere d pleas only beca use he wanted to be out of jail for the holidays. H e explained that he violated the terms of his commun

ity
corrections sente

nce only because of his dru

g and a lcohol pr oblem.

Inarriving

at a sent ence of twenty years f or the defendant's cocaine

conviction, the maximum within the range, the trial court applied enhancement factors (2), that the defendant has a history of criminal convictions or criminal behavior in addition

to that ne cessar

y to establish the appr opriate range, and (9), that the defendant has a prev ious history of unwillingness to comply with the conditions o f a s entence involving release into the community

. See Tenn. Code Ann. § 40-35- 114(2), (9) (2003). The trial court determined that fac tor (2) was entitled to "great weig ht" and that factor (9) was not entitled to "a whole lot of weig ht."

Inthis appeal, the defendant asserts that the trial court erred by

failing to apply a mitigating factor. He also a

rgues t hat the a pplication of enha

ncement factor (9) viola tes th e requi rements of Blakely v. Washing

ton , 524 U.S. ___, 124 S. Ct. 2351 (2004).
When there i s a chal lenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct

a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial cou

rt consid ered the sentenc ing prin

ciples a nd all relevant facts and circu mstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W. 2d 597, 600 (Tenn. 1994 ). "I f the tri al court applies inappropriate factors or otherwis e fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sente ncing Co mmission Comments provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Cod e Ann. § 40- 35-401, Se

ntencing Commission Co mments.-3-

Our review requires an

analysis of (1) the

evidence, if any , received at the trial and sentencing hearin g; (2) the presentence report; (3)the princ ip les of sentencing and the arg uments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the of fense; (5) any

mitigating
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potentia

l forrehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smi

th , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
The presumptive sentence for possession of more tha n .5 gra ms of coca

ine with in

tent to sel l,
a Class B f

elony , is the mini

m um in th e rang e if ther

e are no enhanc ement or

mitigati ng factors. Tenn. Code Ann. § 40-35-210(c). If there ar e enhancement factors but no mitigating factors, the trial court shall set the sentence at or above the presumptive term. Tenn. Code Ann. § 40 -35 -21 0(d ). If there are mitig ating f

actors b ut no enha

ncement factor s, the tria

l court sha ll set the sentence at or below the presumptive term. Id. A sentence involv ing both e

nhance ment and m

i tigatin g factors requires anassignment of relative weight for the enhancement

factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35 -210( e). Th e sent ence sh ould then b e reduc ed wit hin t he range by any weight assigned to the mitigating fa ctors present. Id.
The defendant complains that the trial court erred by failing to apply mitigating

factor (1), that the defendant's co nduct n either caused nor threatened ser ious bodily injury

. See Tenn. Code Ann. § 40-35-1 13(1). H e argu es that thi s factor

is applica

ble beca use ther e is no proof t

hat h e actually attempted to sell any drugs. The state did not address the defendant's claim regarding the application of mitigating factor (1).
The record establishes that the defendant did not ask the trial court to consider the application of mitigating factor (1). In State v. Ro ss , our supreme court held that this fact or may be applie d to convictions for poss e ssion of cocaine when "(1) the conviction for possession is based only upon constructive possession, and (2) the threat of serious bodily injury is more conceptual than real." 49 S.W.3d 833, 848 (Tenn. 2001).
Here, the defendant claimed at the s entenc ing hearing that he did not actually possess the drugs that formed

the basis for his convictions and that the drugs instead belonge d to Paul Williams, who was a

passenger in the car wher ein the drugs were discovered. He conte nded that the car also belonged to Williams, who was a crack cocaine dealer. Althoug h the defendant admitted at the plea submission hearing that there was a fa ctual basis to suppo rt t he convic tions, none

of the fa cts surrounding the convictions was placed into the record. The official version of the events contained in the pre sentenc e repor

t summarize s the facts as follows:
On6/30/03, [a

t] approxima

tely 1800 hour s, [the inve stigatin g offic er] reported to the Air

way s Motel, in ref

erence to a suspect returning a stolen vehicle. According

to the vic tim, Tere sa

Mullins, [the] suspect wanted a payment of $80.00 and threatened to shoot

her if he did n't get it. On the sce ne, conta ct was ma de with Paul Williams. He

was with a

noth er maleidentifie d as [the de fendant ]. Williams was take n into cust

ody for auto theft.-4- When officers removed [the defendant] from the vehicle, to che ck for weapons , a small baggie containing wha t appeared to b e crack coc aine was found, along with a baggie containing a leafy substanc e, possibly marijuana. [The defendant] was taken into custody and the vehicle was seized.
Under these circumstances, it would appear that the defe ndant was entitled to the application of this factor. In our view, howe ver, this factor is entitled to little weight. F urther , the record supportsthe trial court's determination that enhancement factor (2) was e ntitled to great weight. The presentence report e stablishe s that the d efenda nt has a le

ngthy criminal his to ry i ncluding two convictions for attempted rape, two convictions for sexual battery, thre e convictions for possession of cocaine, and one conviction for driving unde r the influence. In consequence , the application of mitigating factor (1) does not warrant a modifica tion of the sentence. See State v. Robert Wilson , No. 03C01- 9209-C R-00305 (Tenn. Crim. App., at Knoxville, Mar. 22, 1993) (holding that "the existence of mitigating factors does not necessar ily call for a reduc ed sente

nce if th ey are suf ficientl y outweighe d by existing e nhance ment factors"); see also State v. Jef frey Allen Par

tin , No. 01C01-9202-CC-00054 (Tenn. Crim. App., at Nashville, Sept. 11, 1992).
Fi na ll y, the defendant asserts that the application of enhanc ement factor (9) violates the require ments of Blakely v. Washing ton , 524 U.S. ___, 1 24 S. Ct. 2351 (200 4). The s tate submi ts that the defendant has waived any challenge to his sentence under Blakely by f ailing to present it in the trial court. In the alterna tive, the state contends that the erroneous application of enhanc ement factor (9) was harmless b eyond a rea sonable d oubt.
This court ha

d previou sly

held that t he United S ta tes Supreme Court’s opinion in Blakely called into quest

ion the continuing

validity of our current sentencing sche me. In that case, the Court, applying the rule in Apprendi v. New Jersey , 566 U.S. 466, 490 (2000), struck down a provision of t he Washington sentencing guidelines that permitted a trial judg e to impose an “excep tiona l sentence” upon the finding of certain statutorily enumerated enh ancement factors. The Court observed that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a jud g e may impose solely on the

basis o f the facts reflected in the jury verdict or admitted by the defendant .” Id. at 2537. Finally, the Court conc luded that “every defendant has a right

to insist that the prosecu

tor prove to a jury [bey

ond a reasonable doubt] all facts legally essential to the punishment.” Id. at 2543.

Re ce nt ly, however , in State v. Edwin Gomez and Jonathan S. Londono , No. M2002-01209- SC-R11-CD, slip op. at 25 (Tenn. April 15, 2005), a maj ority of our supreme court held that "[u]nlike the statutes at issue in Blakely and Booker , a judici al finding of an enhanceme

nt facto r in Tennessee does not

affec t the ran

ge of p unishment

to which a defenda nt is exp osed." It is our view that the holding in Gomez does not permit any re lief

.-5-

Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE