### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs S eptember 12, 2000

STATE OF TENNESSEE v. DARR ON LENON
Direct Appeal from the Circuit Court for Gibson County

No. H 6623 Dick Jerman, Jr., Judge

No. W1999-01951-CCA-R3-CD - Filed January 19, 2001

Inthis case the Def

endant, Darron L

enon, was found gu

ilty o f unlawful delivery of a Schedule II controlled substance, a Class B felony, following a jury trial. The trial court imposed
a maximum Range I sentence of twelve years. In this appeal, the Defendant, in three issues, argues that the trial court erroneously applied an enhance ment factor; failed to apply a mitigating factor; and failed to follow the mandates of the Tennessee Criminal Sentencing Reform Act of 1989. The Defendant

asks this court to re

verse the trial c

ourt and impose the

minimum sentence of

eight years. We decline to do so , and therefore affirm the judgme

nt of the trial cour

t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

.
T HOM AS T. W OODALL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined.

Tom W. Crider, Distric

t Public Defender

; and K evin McAlpin, Assistant Public Defender, later substituted by Shannon A. Jones, Humboldt, Tennessee, for the appellant, Darron Lenon.

Paul G. Summers, Attorney Generaland Reporter; Lucia n D. Geise, Assista

nt Attorney Gener

al; Clayburn Peeples, Distric t Attorn ey General; and William Bowen, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. FACTS

The proof at trial was that Anthony Pettigrew was a “cooperating individual” with the Humboldt Police Department in an undercover

drug operation in 1 997. Mr. Pettigrew worked with TBI agent Aaron Chism in making drug purchases. On September 8, 1997, Mr. Pettigrew and Agent Chism were riding around Humb oldt attempting to

purchase a quarter ounce of crack cocaine. On Calhoun Street in

Humboldt , they went by a house where Pee Wee Emery resided to make the purchase. They were unable to make a purchase. Later, they went to a house on Cradd

ock Street,-2-

and the Defendant approached Mr. Pettigrew and asked if he was still interested in buying the quarter
ounce of crack cocaine. The Defendant had earlier been on Calhoun Street when Mr. Pettigrew was first making inquiries for a purchase. The Defendant k new that Mr. Pettigr

ew had $250.00 to

spend. Pettigrew responded to Defendant that he was still wanting to make the drug purchase. Defendant

told Pettigrew thathe would take him somewhere to make the purchase. About this time, Derrick Ratliff walked up and offered to make the sale to Pettigrew. Defendant initially discouraged Pettigrew from purchasing f rom Ratliff, got into

the vehicle with

Pettigrew and

Chism and went a short distance with them. Defendant, speaking of Ratliff, told Pettigrew “Man, I can’t do him like that. Just go get it from him” (meaning Ratliff). Pettigrew backed the vehicle up and Defendant gotout of the car. Pettigrew also got out of the veh icle and he and th e Defendant wa

lked over to Derrick Ratliff. Defendant and Ratliff began negotiating on what to transfer to Pettigrew, and Ratliff placed the crac

k cocaine into Pett

igrew’s hand. De

fendant instruct

ed Ratliff to

give “all of

them” to Pettigrew. Pettigr

ew handed the $25 0.00 to Defendant, then left with Chism in their vehicle. The weight of the crack cocaine transferred was 2.3 grams. In his testimony, whi ch the jury obvious

ly rejected, the Defendant a dmitted being in the p

resence of Petti

grew and Chism. Defendan t also admitted that Pettigrew had

asked him if

he had some coca

ine to sell. However, Defendant denied participating in the sale between Ratliff and Pettigrew and denied receiving any money.

ANALYSIS

When a defendant cha

llenges the leng

th, range or ma

nner of service

of a se ntence , the reviewing court m us t conduct a de novo review on the record with a presumption that the determinations made by

the trial court were correct. Tenn. Code Ann. § 40-35-401(d). We condition the presumption of correctness “upon the affirmative showing in the record that the tri al court considered

the sentencing

principles and al

l relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 199 1). The burden of showing that a se

ntence is imprope

r is on th e appealing party. Tenn. Code Ann. § 40-35-401(d) (sentenc ing commission comments).

Inreviewing the record, this court must consider (a) the evidence at the trial and the sentencinghearing, (b) the presentence report, (c) the principles of sentencing, (d) the arguments of counsel, (e) the nature and characteristics of the offenses, and (f) the appe llant's potential for rehabilitation. See Tenn. Code Ann. § 40 -35-210; see also

Tenn. Code Ann. § 40-35-102 & 103. In State v. Jones , 883 S.W.2d 597, 599-600 (Tenn. 1994), our supreme court said that "[t]o facilitate meaningful appellate review . . . the trial court must place on the record its reasons for arriving at the final sentencing decision, identify the mitigat ing and enh ancement factors found, state the specific facts supporting each enhance ment f actor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence." Following a sent enc ing hearing, in which only the Defendant and two witnesses called by the Defendant te

stified, the trial c

ourt set forth its e

ntire ruling on sen

tencing as follows :-3-

THE COURT: I’ll ask you to stand, please. The jury having found you guilty of unlawful de livery of a Schedule II Controlled Substance, over a half

a gram, I hereby accept the verdict of the jury and find you

guilty of that offense. I find there to be
no mitigating circumstances. I find there to be an aggravation inthat we have atte

mpted to place you on probation or parole before and that has not worked and accordingly I’m going to sentence you to serve twelve yea r s in the State Penitentiary. I’ll designate you to be a Range One Standard Offender.

While the trial court

may have considered the factors required by Tennessee Code Annotated section40-35-210, this is not clear from the statements made by the trial court at the sentencing hearing. Therefore, the

review of this

sentence is de novo without the presumption of correctness.

The Defendant first argues that the trial court erred by applying the enhancement factor in Tennessee Code Annotated se ction 40-35-114( 8) (the defenda nt has a previous history of unwillingness

to comply with the co

nditions of his

sentencing involving release in the community). While Defendant admitted that his probation for ag gravated assault was revoked in 1995, the presentence report reflects that he succes sfully com pleted another probationary period for a misdemeanor

th eft conviction . Therefore, he argues that at most, the State only proved a “mixed history” of successful and unsuccessful probation. This argument does not persuade us and we find that the trial court properly found this enhancement factor to be applicable.

The State argues that the trial court also apparently found that enhancement factor (1) applies (previous history of crimina l convicti o ns or criminal beh avior in addition to

those necessary

to establish the appropriate

range). While th

e trial court did no

t specifically

find the applicability of this enhancement factor, we agree that it applies, based upon the undisputed record of Defendant’s criminal history provided in the presentence report. See State v. Winfield , 23 S.W.3d 279 (Tenn. 2000) (an appellate court can find applicable an enhancement factor not found by the trial cour t unless there is disputed evidence on application of the enhancemen t fac tor which would require specific findings of fact by the trial court).

The State also

asserts the application of

enhancement fa

ctor (2), Defe

ndant was a leade

r in the commission of an offense involving two or more criminal actions. Tenn. Code Ann. § 40-35- 114(2) (1997). We find that application of this enhancement

factor would

require a specific finding of fact by the trial court, which is not found in the record. See Winfield , 23 S.W.3d at 283-84.

The Defendant next asserts that the trial court erred by not applying the mitigating factor in Tenn. Code Ann. § 40-35- 113(4) (1997), “ the defendant pla

yed a minor role

inthe commission of the offense.” While we are unable to hold, without specific findings of fact by the trial court, that the Defendant was a leader in the commission of the offense, the record clearly indicates that the trial court did not err by refusing to find that the Defendant played a minor role in the commission of the offense. Thus, mitigating factor (4) was not applicable here.Finally, the Defendant asserts that the trial court erred by failing to properly follow the mandates of the Tennessee Criminal Sentencing Reform Act of 1989 in setting the sentence at the maximum within the range.

Where one or

more enhanceme

nt factors apply b

ut no mitigating fac

tors exist, the trial court may se ntenc e above the presumptive sentence but still within the range. See Tenn. Code Ann. § 40-35-210(d). Where both enha ncement and mitiga

ting factors appl

y , the tri al court must start at the midpoint of the range, enhance the sentence within the range as appropriate to the enhancement factors and then

reduce the sente

nce within the ran

ge as appropria

te to the mitigating factors. Tenn. Code Ann. § 40-35-210(e). In the case su b judice , we have found that two enhancement factors apply. The record indicates that the trial court obviously placed great weight on enhancement

factor (8), because Defendant was given the maximum sentence within the range. The weight afforded an enhancement

or mitigating fact

or is left to

the discretion

of the trial court if the trial court complies with the purposes and principles of the Tennessee Criminal Sentencing Reform Act of 1989 and the record supports its findings. Hayes , 899 S.W.2d at 185. Here, the trial court’s reasons for giving this one factor such great weight are absent from the record.
Yet, we find that in the space of seven years, Defendant has accumulated a criminal record which includes convictions from when he was 19, 21, 23, and now 26 years old. His prior record includes a misdemeanor theft conviction at age23, a conviction of aggravated assault at age 21, a conviction of resist

ing arrest at age 21, another misdemeanor drug conviction at age 21, and a conviction of vandalism, “ d amaged property - private,” at age 19. He has one prior felony conviction, for which he received probation that was subsequently revoked, due to his violation of the terms of his probation. Thus, based upon our de novo review, we find that the trial court did not
err inimposing a sentence of twelve years. Accordingly, the judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL, JUDGE