# FILED
July 31, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE FEBRUARY

1997 SESSION

ROGER D. PU LLEY, * C.C.A. # 01C0 1-9605-CC- 00217

Appellant, * WAYNE COU NTY VS. * Hon. Jim T. Hami lton, Judge STATE OF TENNESSEE, * (Sale of Cocaine--5 Counts)

Appellee. *
For Appellant : For Appellee: Robert D. M assey Charles W. Burson 209 West Madison Attorney Gen eral & Repor ter P.O. Box 409 Pulaski, TN 38478 Peter Coughl an Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Mike Bottoms Distric t Attorney General P.O. Box 459 Lawrenceburg, TN 38464 Stel la Har grove Assistant D istrict A

ttorney Gener

al 10 Public Sq uare P.O. Box 1619 Columbia, TN 3840 2-1619

OPINION FILE D:_____________________

AFFIRMED AS MODIFIED
GARY R. WADE, JUDGE
OPINION2 The defendant, Roger D . Pulley, was conv icted of five co unts of selling cocaine; all were Cl ass B felonies. The trial judg e sentenced the defendant t o ten years on eac h offense and ordered all five sentences to be served consecutively, for an effective sentenc e of fifty years . On direct appeal, this c ourt reduced counts one and two to C lass C becaus e the chargi ng languag e in the indic tment did not inc lude the amount of cocaine i nvolved. State v. Ro ger D. Pul ley , No. 01C01-9501-CC00013, slip op. at 9 (Tenn. Cri m. App., at Nashv ille, Sept. 2 0, 1995). Becaus e the trial judg e failed to state on the record th e rationale for ordering a ll five se ntences to be served consecutivel y, there w as a remand for res entencing. Id. At the second sentencing hea ring, the state presented no a dditional pro of. Thereafter, the tri al judge sent ence d the def end ant t o six yea rs ea ch on coun ts on e and two an d twel ve years each on counts three, four, and five. C ounts one and two are concurr ent with each other; count s three and four are consecutive to each other as well as counts one and two. Count five is concurrent with count fo ur. Thus, the eff ective sentence is thirty years.
In this appeal, the defendant complains that the trial court erre d by misa pplyi ng cer tain of t he en han ceme nt f acto rs an d by or deri ng con secu tive sentences. We modify each of the thre e twelve-year s entences to ten-year sentences. We also modify each o f the six-year sentences t o five-y ear sentences. W e otherwise affirm the judgme nt of the trial court. The ef fective sentence is, therefore, twenty-five years.

The def end ant wa s fo und guilt y by a jur y of se lling coca ine o n five different occasions :

(1) 3.5 g rams on January 26, 1993; (2) 5.8 g rams on Februar y 12, 1993;3 (3) 26.8 g rams on Februar y 17, 1993; (4) 51.7 g rams on Februar y 23, 1993; and (5) 92 gr

ams on March 19, 1993. See Roger D. Pulley , slip op. at 2-4.

At th e fir st se nten cing h eari ng, Da nny Ma this and G ary Mat thews testified as char

acter wi tnesses for the defendant; both had wor ked with t he defendant occasionally and described him as a good worker. The presen tence report indicates that the forty-seven-year-old defendant, w ho has neither completed high school nor acquired a G.E.D., is a self-employed pa inter, roofer, and brick mason. He has worked for one ow ner consisten tly for the l ast three y ears and "on and off" for the last five to seven years. W.F. Guire, a minister, testified that the defendant had become more act ive at chur ch since the offenses and that he had expressed a

desire to ch ange his li fe for the better.
The presentence rep ort shows the followi ng crimina l record: a 1987 convicti on for DUI, a 1987 convicti on for failure to y ield to blue l ights, a 1984 convicti on for public i ntoxicati on, two 1981 convictions for traffic offenses, a 1980 convicti on for passing worthles s checks, a 19 76 convict ion for assault and battery, a 1974 convict ion requir ing the defendant to carry hi s license and exhibit i t on demand, a 1973 conv iction for dri ving on a revoked l icense, a 1970 c onviction for burglary other than a habi tation, a 1967 conv iction for a tr affic offense, and a 1967 convicti on for being di sobedient to poli ce officers. At t he time of the first s entencing hearing, the defendant had the follow ing charg es "pending": fiv e counts of sale of Schedule II drug s, assault, fir st degree bur

glary , and arson.

At the initia l sentencing hearing, t he trial ju dge failed to st ate on the4 record w hich, if any, enhancement factors were applicabl e. On appeal, the state had argued that two enhancement fact ors were warrant ed: the defendant's pr ior criminal hi story and t he commission of thes e offenses while on bond. Tenn. Code Ann. § 40-35-114( 1), (13). Our court r uled that the pri or criminal history factor had been established; however , this court ruled that the second enhancement factor could not be considered as to these offen ses unless the defen dant was actually convicted of the felonies for w hich he was on bail. Beca use the record was sil ent on that issue, thi s court order ed that "the applicability of this factor may be determined by the tri al judge on r

emand." Roger D. Pulley , slip op. at 7.

At the second sent encing heari ng, the state presented no new evidence. Ther

e were no s upplements to the presentence report

.
When there is a challenge t o the length, range, or manne r of servi ce of a sentence, it i s the duty of thi s court to co nduct a de novo review with a presumption that t he determinations made by the tr ial court ar e correct. Tenn. Code Ann. § 40-35-401( d). This pres umption is "condi tioned upon the affirmati ve show ing in the recor

d that the tria l court cons idered the senten cing pri nciples and al l relevant facts and circu mstances." State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jone s , 883 S.W.2d 597 (Tenn. 1994). The Sentenci ng Commissi on Comments prov ide that the burd en is on the defendant t o show the i mpropriety of the sentence.

Our revi ew requ ires an analy sis of (1) theevidence, i f any, receiv ed at the trial and sentencing hea ring; (2 ) the presentenc e report; (3) the principl es of sentencing and the arguments of counsel relati ve to sentenc ing alter natives; ( 4) the nature and charac

teristics of the offense; (5) any mitigatingor enhancing factors; (6)5 any statements made by the de fendant in his own behalf ; and (7) the defend ant's potential for re habilitation or treatment. Tenn. Code Ann. §§ 40- 35-102, -103, and -210; State v. Smit h , 735 S.W .2d 859, 863 (Tenn . Crim. App. 1987).

At the time of this offense, the presumptive sentence w as the minimum in the ran ge if there were no enhancement and mi tigating factors. Tenn. Code Ann. § 40-35-210 (am ended in 1995 changing the presu mptive sentence for a Class A felony

to the midpoint i n the range) . Should the tr ial court find mitigating and enhancement factors, it must star t at the minimum sent ence in the rang e and enhance the sentence based upon any app licable enhanc ement factors, and then reduce the sentenc e based upon any appropriate mit igating factors. Tenn. Code Ann. § 40-35-210(e). The weight given to each factor is within the trial court's discretion provided th at the record supports its findings and i t complies w ith the Sentencing Ac

t. See State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). The tr ial court should, however , make specific fin dings on the r ecord whi ch indicate i ts application of the sentencing pr inciples. Tenn. Code Ann. §§ 40- 35-209 and -210.

The trial cour

t found the followi ng factors appl icable: [T]he enhance ment factors, of course, that the Court found ... were the number of sales i nvolved, the openness of those sal es, the amount of money involved, the a mount

of dr ugsinvolved, t he fac t that co cai ne i tsel f, is de stro ying th is cou ntry. Wayne County, especial ly, has a bad cocaine problem, as [do] the other three counties in th is distri ct. The Court is considering any deterrent effect this mig ht have on that ty pe of criminal ac tivity in this jud icial [district ]. The following exchange then occurred between the st ate and the court:

Assistant District Attorney General: And for the record, is Your Honor

also consider ing the two enhancement factors that were considered at the first s entencing hearing.1 During argument, counse l f or t he stat e comm ented t he defendant"was st il l out on bai l f or those [ offenses]

.. . perthe pr esentence r eport ." At one po int , def ense counsel impli es thatthe " on bail" factor should be ap plied. I n the absen ce of a stipulation, however, "argum ents of coun sel ... are not e viden ce." State v. Ro berts , 755 S.W .2d 8 33, 8 36 (T enn . Crim . App . 198 8). 6 The Cour

t: Ye s, ma'a m. Assistant D istrict A

ttorney Gener

al: All r ight. And as addressed in pag e seven of the opi nion. The Court: Ri ght.
The trial court erred by its obvious reliance on nonstatut ory enhancement f actors. Courts have consistently held that the enh ancement fa ctors contained in Tenn. C ode Ann. § 40-35-11 4 "are the exc lusive facto rs whic h may be considered in setting thelength of a sente nce withi n a give n range." State v. Dy kes , 803 S.W.2d 250, 258 (Tenn. Crim. App. 1990). See also Roger D. Pulley , slip op. at 8. Because the tr ial court neg lected to follow the statutory

procedure, our

review must be de novo without t he presumption of cor rectness. See State v. Shel ton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992) ("If the trial court applie s inappropri ate factors or other

wise fails

to follow t he 1989 Sentencing Act, the pres umption of correctness falls.").

On remand, the stat e failed to prove that the charg es for whic h the defendant was on bai l resulted i n convicti on. The state's app ellate brief makes no mention of the applic ability of this enhancement factor . The state chose to rely o n the origi nal presentence report, w hich was not updated for the re sentencing procedure. The report merely shows that

the offenses were "pending"; there is no indication of the f inal disposition. W e must, therefore, resolve this matter favorably for the defendant. 1

The defendant's prior

criminal r

ecord is well establi shed. No other2 Although the issue ha s not been raised by eit her party, t he imp osition of a more s evere sen tenc e up on re sen tenc ing m ay violate due proc ess . See North Carol ina v . Pearce , 395 U. S. 711 (1969). In t his case, however, the def endant doe s not ar gue thathis se ntence i s the r esultof vin dict ive ness; we hesi tat e to make the argu ment for hi m. The defendant onl y addr esses whether the trial cou rt app ropr iately followe d the 198 9 Se nten cing Re form Act. 7 factors appear to be applicable. Yet the defendant argues that the t rial court erred by failing to consider as a mitigat ing circumstance that he i s an alcoholi c and that he has a limited work history. He also argues the trial court erred in resentencing him to twelve years for the Class B felonies, where the initial sentence was ten years each. He arg ues, "[i]t does not make ... sense to now find the defendant appropriate for a

twelve ... year sentence when the previou s sentence had been ten ... years ...." 2

In review ing the propr iety of the sent ence on a de novo basis, w e tend to concur with the trial judge's initial assessment that an en hanced sentence is warranted. A singl e enhancement factor, however, rat her than the two cited on remand, is appli cable. More over, the t rial judg e based the tw elve-year sentences, at least in part, on several nonstatutory aggravating circumstances. Under these circumstances , a mid-rang e, ten-year sentence, rather

than the maximum, would be warranted by the content of the appellate record. The same rationale appli es to the propriety of the two si x-year

sentences. In our view , the defendant's pri or criminal record, standing alone, did warrant an enha nced sentence. The range for the Class C offenses is between three and six years. Tenn. Code Ann. § 40- 35-112(a)(3)

. Mid-rang e sentences of fiv e years are appropriate.

We now address the appropri ateness of consecuti ve sentences . Prior to the enactment of the C riminal Sentenc ing Reform Act of 1989, the limited classificati ons for the imposi tion of consecutiv e sentences w ere set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In t hat case our su preme court ru led that3 The fir st fo ur cri teri a are fo und in Gray . A f if th cat egoryin Gray , based on a speci fi c number of pr ior felon y con victions , m ay enh anc e the sen tenc e ran ge b ut is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-115 , Sent encing Com mission Comm ents. 8 aggravating cir

cumstances must be present before placement in any one of the classificati ons. Later, i n State v. Tay lor , 739 S.W .2d 227 (Tenn. 198 7), the court established an addition al category for those defend ants convicted of two or more statutory offense s involving sexual abuse of minors. There were, however, additional words of caution: "[C]onsecutive sentences shoul d not routinely be imposed . . . and . . . the agg regate max imum of consecutive terms must be reasonably related to the s everity of the offenses invol ved." Taylor , 739 S.W.2d at 230. The Sentencing Commission C omments adopted the cauti onary lang uage. Tenn. Code Ann. § 40- 35-115. The 1989 Act is, in essen ce, the codificat ion of the holdings i n Gray

and Taylor ; consecutive sentences may be imposed in the discretion of the trial cour t only upon a determination that one or more of the following criteria 3 exist:

(1) The defendant is a professional c riminal w ho has knowing ly devoted himself to cr iminal acts a s a major source of livelihood; (2) The defendant is

an offender whose r

ecord of criminal ac

tivity is extens ive; (3) The defendant is a dangerous mental ly abnormal person so decl ared by a competent psychi atrist w ho concludes as a result of an investigation prior to sentencing t hat the defendant's cr iminal conduct has been characteri zed by a pattern of repetit ive or compulsive behavior w ith heedless i ndifference to consequences; (4) The defenda nt is a dangerous offe nder whose behavior i ndicates lit

tle or no reg ard for human life, and no hesitation about com mitting a crime in which the risk to human life is hi gh; (5) The defenda nt is convicted of two (2) or more statutory offenses involv ing sex ual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship b etween the defend ant and victim or vict ims, the time sp an of defendant's undetected9 sexual act ivity , the nature and s cope of the sexual acts and the extent o f the residual, p hysical and mental damage to the victim or victims; (6) The defenda nt is sentenced for an of fense committed whi le on probation; (7) The defendant is

sentenced for cr iminal contempt. Tenn. Code Ann. § 4 0-35-115(b).

In Gray , our supreme c ourt ruled that before consecuti ve sentenci ng could be imposed up on the dangerous offender, as now defin ed by subsec tion (b)(4) i n the statute, other conditions mus t be present: ( a) that the cr imes invol ved aggravating cir

cumstances; (b) that consecuti ve sentences are a necessar

y means to protect the pu blic from the defendant; and (c) that t he term reasonabl y relates to the severity of the offen ses.

More recentl y, in State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 199 5), o ur hig h cou rt rea ff irme d tho se pr incip les, hold ing th at co nsec utive senten ces ca nnot be requi red of t he dang erous offender "unles s the t erms reasonably relate to the severity of the off enses committed an d are necessary in order to prot ect the public (society) from further cr iminal acts b y those per sons who resort to ag gravated criminal c onduct." The Wilkerson decision, w hich modified somewhat the s trict factual guidelines for consecutive sentencing adopted in Stat e v. Woods , 814 S.W .2d 378, 380 (Tenn . Crim. App. 1991), described sent encing as a "human process that

neither can nor

should be reduc ed to a set of fixed and mechanical rul es." Wilkerson , 905 S.W.2d at 938.

In imposing the consecutive sentence s in this case, the trial court observed as follows: [T] he Co urt f inds that the d efe nda nt, M r. Pu lley,10 has knowingly devoted himself to criminal acts as a major source of his liv elihood. He has extensive criminal activity in his past. These convi ctions show a criminal conduct charact erized by a pattern of repeti tive or compulsive behavior by the defendant, wi th no regard to the consequences. The Court is considering that the defendant was out on bail at t he time -- out of jail on bail at the time the offenses were commi tted. The Court a lso is cons idering the fact that the defendant's behavior i ndicates lit

tle or no regard for human life. He didn' t hesitate about committing these crimes over a period of about a month's time. He was pai d some $9250.00 for the s ale of cocaine. And theCourt finds thi s crime does p lace a high ris k on human life. The Court finds it 's necessary to protect soc iety fro m the def end ant' s unwil lingn ess t o lea d a pr odu ctive life, and his anti societal li festyle. And the Court finds

that the [agg regate] leng th of these consecuti ve sentences ... do reasonabl y relate to the offenses for whic h the defendant stands c onvicted. The Court is una ble to find a definiti on for the word, "ag gravated circumstances ." The Gray case doesn't really define it. I don't f ind it defined in this Taylor case.

*** I'm just simpl y going to find fulfillment of that criteria that the circumstances surround ing these offense were ag gravated by the way the drug s were s old, the pers iste nt sa le of the d rugs, and t he am oun t of mon ey, and the amount of drugs that were involved. So with that in mind, the C ourt wil l fix the se ntence for 30 years.

W e cannot disagree with this assessment. Consecu tive sentences are warranted. The trial co urt's determi nation that the defendant is a "profession al criminal w ho has ... devoted himself to cr iminal acts a s a major source of livel ihood" is supported by

the fact that he was paid almost $1 0,000 for the cocai ne sales that occurred in slightly

over a month' s time. See Tenn. Code Ann. § 40- 35-115(b)(1)

.11 The presentence rep ort, whi ch was uncontested, also s hows that th e defendant had operated a gar

age; during a raid in 1990 , police dis covered sev eral bagg ies of cocaine in the garage. This indicates a packaging process for resale. The number of offenses over the per iod of time involved in t hese cases tends to substantiatethe conclusion thedefendant regular ly sold cocaine as a l ivelihood.

Moreover , the defendant's ex tensive cr iminal recor

d also war rants consecutive sentencing. See Tenn. Code Ann. § 40 -35-115(b)(2). Forty-four years of age at the time t he presentence report was prepared, the defendant has engaged in criminal conduct begi nning at the ag e of seventeen. H e sold prog ressive ly larg er amounts of coca ine. Our conclusion is that the aggregate length of th e sentences is necessary

to protect soc iety from the de fendant's propensit y to break the law.
Accordingl y, the judg ment is affirmed, except that each of the twelveyear sentenc es are modified to t en-year s entences and the tw o six-year sentences are modified to f ive years. Thus, the effective senten ce is twenty-five years.

__________________________________ Gary R. W ade, Ju dge CONCUR:

________________________________ David G. Haye s, Judge

__________________________________ Curwood W itt, Jud ge