State of Tennessee v. Stephen Massey, a/k/a Stephania

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 14, 2002

STATE OF TENNESSEE v. STEPHEN MASSEY, A/K/A STEPHANIA

Direct Appeal from the Circuit Court for Giles County

No. 8765 Robert L. Jones, Judge

No. M2001-02686-CCA-R3-CD - Filed May 30, 2003

The appellant, Stephen Massey, was convicted by a jury in the Giles County Circuit Court of two

counts of selling less than .5 grams of crack cocaine, Class C felonies, and three counts of selling

.5 grams or more of crack cocaine, Class B felonies. The trial court sentenced the appellant as a

Range II multiple offender to an effective sentence of eighteen years incarceration in the Tennessee

Department of Correction. On appeal, the appellant contends that (1) the trial court erred in denying

the appellant’s motion to dismiss on speedy trial grounds, (2) the trial court erred in denying the

appellant’s motion to sever, (3) the trial court erred in allowing the State to exclude two African-

Americans from the jury based on their race, and (4) the sentences imposed by the trial court were

excessive. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.

RILEY, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Stephen Massey.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; Mike Bottoms, District Attorney General; and Richard H. Dunavant and Patrick S. Butler,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On December 9, 1998, the Giles County Grand Jury indicted the appellant on two

counts of selling less than .5 grams of crack cocaine and three counts of selling .5 grams or more of

crack cocaine. These indictments arose from the following series of drug transactions targeting the

appellant.

On January 29, 1998, Investigator Brandon Beard with the Giles County Sheriff’s

Department met with confidential informant, Barry Todd Journey, and arranged for Journey to

purchase crack cocaine from the appellant. Investigator Beard provided Journey with thirty dollars

($30) to purchase the crack cocaine and a tape recorder to record the transaction. Journey drove to

the appellant’s apartment complex at North Third and Washington. Investigator Beard followed, but

parked across the street at the SunTrust Bank. He watched as Journey exited his truck and

approached the appellant’s apartment building.

Journey knocked on the appellant’s door and, when an unknown individual answered,

asked to see the appellant. The individual replied that the appellant was getting dressed, but that

Journey could wait in the living room. After “a couple minutes,” the appellant came into the living

room. Journey told the appellant that he wanted thirty dollars ($30) worth of cocaine. The appellant

reached into “her bra” and pulled out a bag containing “two rocks” of crack cocaine.1 Journey paid

the appellant and left. Investigator Beard followed Journey back to the original meeting place, where

he retrieved the tape recorder and the bag containing the “two rocks.” Investigator Beard delivered

the bag to the TBI crime laboratory for analysis. The analysis revealed that the “two rocks” weighed

0.1 grams and tested positive for cocaine.

On February 5, 1998, Investigator Beard met with Journey and arranged another

undercover drug purchase. This time Investigator Beard provided Journey with a tape recorder and

forty dollars ($40) to purchase the crack cocaine. He followed Journey to the apartment complex,

parked at the bank across the street, and watched as Journey approached the building. This time the

appellant answered the door and Journey asked for forty dollars ($40) worth of cocaine. The

appellant handed Journey a bag containing “several little rocks.” After completing the purchase,

Journey met with Investigator Beard and gave him the bag and the tape recorder. TBI analysis

revealed that the “rocks” weighed 0.1 grams and tested positive for cocaine.

Following these two transactions, Investigator Beard contacted Special Agent Brad

Elliott with the TBI to request his assistance in the investigation. Investigator Beard wanted Special

Agent Elliott to go undercover with Journey, who had been purchasing the crack cocaine at “street

level,” and attempt to make larger purchases. Special Agent Elliott agreed to help and enlisted the

aid of Special Agent Charles Rountree. Special Agent Rountree “was to assist with the collecting

of evidence by making the tapes and also to provide security.”

On February 19, 1998, the TBI agents and Investigator Beard met with Journey. A

transmitter was placed on Special Agent Elliott, who was to accompany Journey to the appellant’s

apartment and attempt to make the purchase. Special Agent Rountree and Investigator Beard

monitored the transaction on the receiver.

1

The record indicates that the male appellant had a fondness for wom en’s clothing and often portrayed himself

as a woman.

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When Special Agent Elliott and Journey arrived, the appellant was standing outside

his apartment. The appellant motioned for Special Agent Elliott and Journey to follow him into the

apartment. Upon entering, Special Agent Elliott observed that the apartment was vacant. Journey

introduced Special Agent Elliott to the appellant, referring to Special Agent Elliott as his cousin

“Ed.” Special Agent Elliott asked to purchase a quarter ounce of crack cocaine, and the appellant

agreed to a price of three hundred dollars ($300).

Special Agent Elliott took a set of digital scales from his pocket and laid them on the

table. The appellant then removed a plastic bag containing what appeared to be crack cocaine from

his shirt and laid the bag on the scales. Special Agent Elliott agreed that “the weight was about

right” and paid the appellant three hundred dollars ($300). After some “brief small talk,” Special

Agent Elliott took possession of the crack cocaine, put the scales back in his pocket, and left with

Journey. They rejoined Special Agent Rountree and Investigator Beard, who advised Special Agent

Elliott that they had monitored and made a recording of the transaction. Special Agent Rountree

delivered the bag containing the crack cocaine to the TBI crime laboratory for analysis, which

analysis revealed that the “rocklike substance” weighed 6.9 grams and tested positive for cocaine.

The final undercover drug transaction occurred on March 5, 1998. Special Agent

Elliott, wired with a transmitter, went to the appellant’s apartment with Journey. This time Special

Agent Elliott was attempting to purchase a half ounce of crack cocaine. When Special Agent Elliott

and Journey entered the appellant’s apartment, they noticed several unknown individuals

“socializing” in the living room. The appellant locked the front door and proceeded to the kitchen.

The appellant called an unknown white male into the kitchen. Special Agent Elliott and Journey

waited in the living room.

Shortly thereafter, the white male exited the kitchen with what appeared to be “a

couple of rocks of crack [cocaine].” The appellant then called “Ed,” Special Agent Elliott, into the

kitchen. Journey remained in the living room. When Special Agent Elliott entered the kitchen, he

observed “a plate which had a cake that looked to be approximately an ounce of crack cocaine in

solid form.” A single edge safety razor was laying next to the “cake” of crack cocaine.

Special Agent Elliott told the appellant that he wanted to purchase a half ounce of

crack cocaine for five hundred fifty dollars ($550). The appellant stated that the price was six

hundred dollars ($600) and that he wanted “to check [Special Agent Elliott] for a wire or a weapon.”

In Special Agent Elliott’s waistband, the appellant found the agent’s “issue forty caliber weapon.”

The appellant commented, “That’s a police gun.” Special Agent Elliott denied that the weapon was

a police gun and the appellant said, “Well, okay.” Special Agent Elliott then took out his digital

scales and the appellant asked for a nickel to check the accuracy of the scales.2 Special Agent Elliott

responded that he did not have a nickel, so the appellant asked another individual, Michael Phillips,

to bring him a nickel.

2

Special Agent Elliott testified that “a nickel coin will weigh five grams on accurate scales.”

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After ensuring that the scales were accurate, the appellant began “cutting chunks off

this large cake [of crack cocaine].” The appellant placed “the chunks” on the scales until he had an

amount weighing roughly 0.5 ounces. The appellant then placed “the chunks” of crack cocaine into

a plastic baggy, which he tied up and handed to Special Agent Elliott. Special Agent Elliott put the

baggy into his pocket and paid the appellant. Special Agent Elliott then picked up his scales and

started to leave. However, before he exited the apartment, the appellant called Special Agent Elliott

back into the kitchen and asked to borrow his scales “to weigh up a quarter ounce that he was going

to sell to Michael Phillips.” Special Agent Elliott took out his scales and observed the appellant sell

a quarter ounce of crack cocaine to Phillips for two hundred fifty dollars ($250).

After collecting his scales, Special Agent Elliott and Journey left the apartment and

rejoined Special Agent Rountree and Investigator Beard. Special Agent Elliott briefed the officers

on the transaction and placed the crack cocaine in an evidence bag. Special Agent Elliott

subsequently delivered the bag to the TBI crime laboratory. Analysis revealed that “the chunks”

weighed 12.4 grams and tested positive for cocaine.

The appellant was convicted by a jury of two counts of selling less than .5 grams of

crack cocaine and three counts of selling .5 grams or more of crack cocaine. Following a hearing,

the trial court sentenced the appellant as a Range II multiple offender to an effective sentence of

eighteen years incarceration. On appeal, the appellant contends that (1) the trial court erred in

denying the appellant’s motion to dismiss on speedy trial grounds, (2) the trial court erred in denying

the appellant’s motion to sever, (3) the trial court erred in allowing the State to exclude two African-

Americans from the jury based on their race, and (4) the sentences imposed by the trial court were

excessive.

II. Analysis

A. Speedy Trial

Both the Sixth Amendment to the United States Constitution and Article 1, section

9 of the Tennessee Constitution guarantee an accused the right to a speedy trial.3 An identical right

is found in Tennessee Code Annotated section 40-14-101 (1997), which provides that “[i]n all

criminal prosecutions, the accused is entitled to a speedy trial, and to be heard in person and by

counsel.” Moreover, Rule 48(b) of the Tennessee Rules of Criminal Procedure provides that, “if

there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment,

presentment, information or complaint.” These guarantees were designed “to protect the accused

against oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal

charges, and the risk that evidence will be lost or memories diminished.” State v. Utley, 956 S.W.2d

489, 492 (Tenn. 1997) (citing Doggett v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692

(1992)).

3

The Sixth A mendme nt, made applicable to the states through the Fourteenth Amendment, provides in part

that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend.

VI. Similarly, A rticle I, section 9 o f the Tennessee C onstitution pro vides that “in pro secutio ns by ind ictment or

presentment [the accused has the right to] a speedy public trial.”

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In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2191-92 (1972), the United

States Supreme Court established a balancing test to be used by courts in determining whether an

accused has been denied his right to a speedy trial. See also State v. Bishop, 493 S.W.2d 81, 83-85

(Tenn. 1973) (adopting the Barker balancing test in Tennessee). Under the Barker analysis, four

factors must be considered: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s

assertion of the right to a speedy trial; and (4) the prejudice resulting from the delay. Barker, 407

U.S. at 530, 92 S. Ct. at 2192. “This balancing test ‘necessarily compels courts to approach speedy

trial cases on an ad hoc basis.’ If a court determines after applying this balancing test that a

defendant has been denied a speedy trial, the remedy is reversal of the conviction and dismissal of

the criminal charges.” State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001) (citations omitted).

The length of the delay “triggers” the speedy trial analysis. Barker, 407 U.S. at 530,

92 S. Ct. at 2192; State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996). “Until there is some delay

which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into

the balance.” Id. Generally, the delay must approach one year or more in order to trigger the Barker

analysis. Simmons, 54 S.W.3d at 759. The indictment charging the appellant with the instant

offenses was returned on December 9, 1998. The appellant was not tried until September 10, 2001.

Thus, the delay between indictment and trial was just under three years. In State v. Vickers, 985

S.W.2d 1, 5 (Tenn. Crim. App. 1997), this court concluded that a delay of three years and nine

months was not a presumptive speedy trial violation. Moreover, our supreme court has previously

concluded that a “total delay of a little over two years is not per se extreme and is not such a length

of delay that from this fact alone we would presume prejudice.” Bishop, 493 S.W.2d at 85.

Accordingly, we must examine the remaining Barker factors.

Generally, the reasons for the delay fall into one of four categories: (1) intentional

delay by the State to gain a tactical advantage over the accused or delay designed to harass the

accused; (2) bureaucratic indifference or negligence; (3) delay necessary to the fair and effective

prosecution of the case; and (4) delay caused, or acquiesced in, by the defense. Wood, 924 S.W.2d

at 346-47. “Intentional delay must be weighted heavily against the government, while negligence

or oversight are considered against the government but afforded comparatively more neutral weight.

Valid reasons, such as the inability to locate a witness, justify an appropriate delay.” State v.

Easterly, 77 S.W.3d 226, 236 (Tenn. Crim. App. 2001) (citing Barker, 407 U.S. at 531, 92 S. Ct. at

2192).

In the instant case, there were numerous reasons for the delay of trial.4 The appellant

was indicted December 9, 1998. On March 4, 1999, while in state custody for violating parole on

prior charges, the appellant was served with notice of the indictment. On April 12, 1999, the

appellant filed a pro se motion asserting his right to a speedy trial. On May 10, 1999, the appellant

was arraigned and Shipp R. Weems, assistant public defender, was appointed to represent the

4

The reasons for delay were gleaned from the record and the appellant’s motion to dismiss. At the hearing

on the motion to dismiss, the trial court accepted as accurate the facts alleged by the appellant in the motion.

Acco rdingly, where the reco rd did no t provide the ne cessary information, we have relied on these facts.

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appellant. However, the appellant was not satisfied with Weems’s representation, as evidenced by

the appellant’s letter to the Giles County Court Clerk dated August 18, 1999, notifying the court that

he had filed a complaint against Weems with the Board of Professional Responsibility.

Subsequently, on August 23, 1999, the trial court entered an order allowing Weems to withdraw as

counsel, but directing the public defender’s office to continue to represent the appellant. The jury

trial, previously set for September 2, 1999, was continued until March 21, 2000.

On November 15, 1999, R.H. Stovall, Jr., the assistant public defender subsequently

appointed to represent the appellant, filed a motion to withdraw as counsel due to a conflict of

interest. In his motion, Stovall stated that he had recently become aware that the public defender’s

office was representing an individual who was likely to be a witness against the appellant at trial.

The trial court granted Stovall’s motion to withdraw and appointed Tim Underwood to represent the

appellant. On March 8, 2000, the State moved for a continuance and the trial court granted the

State’s motion over the objection of the appellant. Trial was reset for August 2, 2000.

On May 11, 2000, Underwood filed a motion to withdraw as counsel, asserting that

“[the appellant] has made it clear his desire to dismiss Timothy P. Underwood thereby creating an

inability to work with [the appellant].” Following a hearing on the motion, the trial court allowed

Underwood to withdraw and, on June 2, 2000, appointed Hershell D. Koger to represent the

appellant.

On July 5, 2000, the appellant, through counsel, filed a motion for continuance,

stating that counsel had only recently been appointed, was scheduled to represent another client in

a capital murder case during the week of July 17 through July 31, 2000, and, thus, did not have time

to adequately prepare for the appellant’s trial. The trial court granted the motion and the case was

subsequently reset for trial on December 27, 2000. However, on that date the appellant’s case was

passed and the trial was subsequently reset for September 10, 2001, at which time the appellant did

go to trial.

Based on the foregoing, we find no evidence of intentional delay on the part of the

State. Although the State did request a continuance which the trial court granted over the appellant’s

objection, no reason exists in the record, nor did the appellant assert any reason, for the State’s

request. Accordingly, we are unable to conclude that the State’s motion was an effort to gain a

tactical advantage over or harass the appellant.

Instead, we find that the majority of the delay was caused by the appellant. By the

time his case went to trial, the appellant had been represented by four different attorneys. His first

attorney, Ship Weems, was allowed to withdraw from representation after the appellant filed a

complaint against him with the Board of Professional Responsibility. Tim Underwood was also

allowed to withdraw after the appellant “made it clear his desire to dismiss . . . Underwood thereby

creating an inability to work with the [appellant].” In fact, the record reflects that, prior to trial, the

appellant filed a complaint against his current counsel, Hershell Koger. Only Assistant Public

Defender Stovall withdrew for a reason other than the appellant’s inability to cooperate with counsel.

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The appellant also contributed to the delay of trial by filing a motion for continuance

shortly after the appointment of Koger. Moreover, the appellant filed a motion to sever offenses

which, if granted, would have resulted in greater delay. As noted by the trial court,

[i]f I sever any of these counts, the ones that are severed away are

going to be delayed even further. . . . [It would take] two or three

years, if we try one at a time. We are only given about eight to ten

days a month, that’s all we have got, and handle a thousand cases a

year.

Accordingly, this factor will be weighed against the appellant.

The third factor to be considered is whether the accused asserted his right to a speedy

trial. Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Simmons, 54 S.W.3d at 760. “[A] defendant’s

assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether

the defendant [was] deprived of that right.” Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93. On

the other hand, “the failure to assert that right will make it difficult for a defendant to prove that he

was denied a speedy trial.” Id. at 532, 92 S. Ct. at 2193. As previously noted, on April 12, 1999,

the appellant filed a pro se “Motion to Dismiss Indictment and/or Fast and Speedy Trial Right for

Final Disposition.” Thus, the appellant asserted his right to a speedy trial within six weeks of being

notified of the charges pending against him. Additionally, on August 26, 2001, counsel for the

appellant filed a “Motion to Dismiss Indictment - Speedy Trial Issue,” reasserting the appellant’s

right. This factor weighs in favor of the appellant.

The final and most important factor to be considered is the prejudice suffered by the

accused. Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Simmons, 54 S.W.3d at 760. Prejudice is to

be assessed in light of the interests of the accused which the right to a speedy trial was designed to

protect: (1) to prevent undue and oppressive incarceration prior to trial; (2) to minimize the anxiety

and concern that result from being accused of a crime; and (3) to limit the risk that the defense will

be impaired. Simmons, 54 S.W.3d at 760.

In the instant case, the appellant does not claim that he suffered from anxiety and

concern or that the delay impaired his ability to prepare a defense We also conclude that the

appellant has not demonstrated that he was subject to undue and oppressive incarceration prior to

trial. As previously noted, at the time of the indictment, the appellant was in state custody for

violating parole on prior charges. Moreover, evidence at the sentencing hearing revealed that the

appellant was on parole at the time he committed the instant offenses. Accordingly, the appellant

was required to serve any sentence received for the instant offenses consecutive to the one he was

serving when indicted. See Tenn. Code Ann. § 40-28-123(a) (Supp. 2002). We conclude that the

appellant did not suffer any appreciable prejudice from the delay in trial. This factor does not weigh

in favor of the appellant.

After examining and balancing the Barker factors, we conclude that the appellant has

failed to establish a speedy trial violation. Although the appellant asserted his right to a speedy trial

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early in the case, we find that he contributed substantially to the delay while suffering no appreciable

prejudice. The appellant is not entitled to relief on this matter.

B. Motion to Sever

We review a trial court’s determination regarding the severance of offenses for an

abuse of discretion. State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). In other words, “a trial

court’s refusal to sever offenses will be reversed only when the ‘court applied an incorrect legal

standard, or reached a decision which is against logic or reasoning that caused an injustice for the

party complaining.’” Id. (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure provides that “[i]f two

or more offenses have been joined or consolidated for trial pursuant to Rule 8(b), the defendant shall

have a right to a severance of the offenses unless the offenses are part of a common scheme or plan

and the evidence of one would be admissible upon the trial of the others.” On appeal, the appellant

does not argue that the offenses were not part of a common scheme or plan. Instead, the appellant

asserts that the evidence of one offense would not be admissible at the trial of the other offenses.

To determine whether the evidence of one offense would be admissible at the trial

of the other offenses, we must look to Rule 404(b) of the Tennessee Rules of Evidence. “Evidence

of other crimes . . . is not admissible to prove the character of a person in order to show action in

conformity with the character trait.” Tenn. R. Evid. 404(b). However, such evidence may be

admissible if the evidence is relevant to a material issue other than character and its probative value

outweighs the danger of unfair prejudice. Tenn. R. Evid. 404(b)(2)-(3). Tennessee case law has

established that evidence of other crimes may be admissible to show motive, intent, guilty

knowledge, identity, absence of accident or mistake, or a common scheme or plan. State v. Hoyt,

928 S.W.2d 935, 944 (Tenn. Crim. App. 1995).

The appellant’s defense at trial was that he was not selling crack cocaine for profit,

but was “providing it for [his] friends.” Accordingly, the evidence of each offense was relevant to

prove the appellant’s intent and its probative value outweighs the danger of unfair prejudice.

Because the offenses occurred within a six week period and involved the same confidential

informant and basic procedure for purchasing the crack cocaine, the evidence was also relevant to

prove common scheme or plan. For these reasons, we conclude that the trial court did not abuse its

discretion in refusing to grant the severance. This issue is without merit.

C. Batson Challenges

Next, the appellant contends that the State used its peremptory challenges to exclude

prospective jurors based upon race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712

(1986). Specifically, the appellant asserts that “all of the prospective black jurors who made [it to

the jury panel] were struck by the State.” We note that the trial court excused two prospective

African-American jurors for cause. Thereafter, the State exercised its peremptory challenges to

exclude African-American jurors Jane Gilbert and David Garrison. The appellant challenges these

exclusions on appeal.

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A defendant seeking to raise a Batson claim must make a prima facie showing that

the State purposefully exercised its peremptory challenge on the basis of race. Batson, 476 U.S. at

93-94, 106 S. Ct. at 1721; Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 902 (Tenn.

1996). To make this prima facie showing, the defendant “must establish that a consideration of all

the relevant circumstances raises an inference of purposeful discrimination.” Woodson, 916 S.W.2d

at 903 (citing Batson, 476 U.S. at 97, 106 S. Ct. at 1723). Once the defendant has established a

prima facie case of purposeful discrimination, the burden shifts to the State to articulate a race-

neutral explanation for the challenge. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. “This explanation

must be based on something more than stereotypical assumptions, but it need not rise to the level

required to justify the exercise of a challenge for cause.” State v. Ellison, 841 S.W.2d 824, 826

(Tenn. 1992) (citing Batson, 476 U.S. at 97, 106 S. Ct. at 1723). If the State provides a race-neutral

explanation, the trial court must then consider all the facts and circumstances to determine whether

purposeful discrimination has been established. Woodson, 916 S.W.2d at 903. In making its

determination, the trial court must carefully articulate specific reasons for each of these findings on

the record. Id. at 906. The trial court’s factual findings are imperative in this context and will not

be set aside on appeal unless clearly erroneous. Id.

In the instant case, the trial court found that the State’s challenge of the prospective

jurors was not discriminatory because both of the jurors “ha[d] a kinship with the [appellant].” We

agree. During voir dire, prospective juror Gilbert related that she had known the appellant for twenty

years, lived in his neighborhood, and considered him to be a friend. Moreover, when asked by the

State if she would be uncomfortable finding the appellant guilty, Gilbert responded, “I don’t know.”

The other prospective juror, Garrison, informed the parties that he had known the appellant for over

ten years and that his wife was the appellant’s “fourth or fifth cousin.” The State’s peremptory

challenge sheet indicated that Garrison also considered the appellant to be a friend. Clearly, the State

had race-neutral bases for challenging these jurors. This issue is without merit.

D. Sentencing

Finally, the appellant contends that the sentences imposed by the trial court were

excessive. When an appellant challenges 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) (1997). However, this presumption

of correctness is “conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). The burden is on the appellant to show that the sentence is improper.

Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

In conducting our review, this court must consider (1) the evidence, if any, received

at trial and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and

the arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of

the offenses; (5) any mitigating or enhancement factors; (6) any statements made by the appellant

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on his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann.

§ 40-35-102 and -103 (1997), -210 (Supp. 2002); see also Ashby, 823 S.W.2d at 168.

The appellant was sentenced as a Range II multiple offender, for which the applicable

range for Class B felonies is twelve to twenty years and for Class C felonies is six to ten years.

Tenn. Code Ann. § 40-35-112(b)(2)-(3) (1997). The presumptive sentence for both Class B and

Class C felonies is the minimum within the applicable range if there are no enhancement or

mitigating factors. Tenn. Code Ann. § 40-35-210(c). If the trial court finds that such factors do

exist, the court must start at the presumptive sentence, enhance the sentence within the range as

appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate

for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). We note that there is no mathematical

formula for valuating factors to calculate the appropriate sentence. State v. Boggs, 932 S.W.2d 467,

475 (Tenn. Crim. App. 1996). “Rather, the weight to be afforded an existing factor is left to the trial

court’s discretion so long as the court complies with the purposes and principles of the 1989

Sentencing Act and its findings are adequately supported by the record.” Id. at 475-76.

In the present case, the record reflects that the trial court complied with the statutory

sentencing principles and procedures. The trial court considered the nature of the offenses, the

sentencing principles, the arguments of counsel, the presentence report, and the testimony presented

at trial and at sentencing, including the appellant’s own testimony. Based upon this information, the

trial court applied the following enhancement factors:

(1) the appellant has a previous history of criminal convictions;

(8) the appellant has a previous history of unwillingness to comply

with the conditions of a sentence involving release in the community;

and

(13)(B) the felony was committed while the appellant was on parole;

Tenn. Code Ann. § 40-35-114 (1997).5 The trial court also considered mitigating factor (1), that the

appellant’s criminal conduct neither caused nor threatened serious bodily injury, Tenn. Code Ann.

§ 40-35-113(1), but was uncertain that the factor applied, stating, “If that factor has any implication

in this case at all, it is being given very limited weight, maybe enough to offset the [appellant’s] . .

. prior record.” The trial court initially sentenced the appellant to sixteen years incarceration for each

Class B felony and eight years incarceration for each Class C felony with the sentences to be served

concurrently. However, upon further consideration, the trial court concluded that an effective

sentence of sixteen years was not “fair” and amended the sentences for the Class B felonies to

eighteen years, resulting in an effective sentence of eighteen years incarceration.

On appeal, the appellant contends that the trial court afforded the enhancement factors

too much weight. Specifically, the appellant asserts that “it appears that the [trial] court ultimately

gave the enhancement factors extra weight based on the fact that consecutive sentencing was not

5

W e note that the 2002 am endment to this section added present enhancement factor (1), thereby renumbering

former (1)-(22). See Tenn. Code Ann. § 40-35-114, Amendm ents. However, for the purp oses o f this opinion, we will

use the former designations applicable at the time of the appellant’s sentencing.

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appropriate in the [appellant’s] case.” According to the appellant, the trial court enhanced his

sentence based upon the “inability” to impose consecutive sentences. The appellant argues, “When

sentencing a defendant within a range, the sentence must be based only upon statutory enhancement

factors. The inability to sentence consecutively is not a statutory enhancement factor.”

After concluding that the appellant did not meet the criteria for consecutive

sentencing under Tennessee Code Annotated section 40-35-115(b) (1997), the trial court stated, “I

am not satisfied for sure, though, that 16 years is a fair sentence in this case. I am going to amend

the Class B felon[ies] to 18 years instead of 16 years and find that [the appellant] will serve all of

his sentences concurrently.” We do not interpret this language to suggest that, upon determining that

consecutive sentencing was inappropriate, the trial court afforded the enhancement factors greater

weight. Rather, this language indicates that the trial court did not feel it had properly sentenced the

appellant. As previously noted, the weight to be afforded an existing factor is left to the trial court’s

discretion so long as the court complies with the sentencing principles and its findings are adequately

supported by the record. Boggs, 932 S.W.2d at 475-76. In the instant case, after determining that

an effective sentence of sixteen years was inappropriate, the trial court, as it was free to do, simply

afforded the existing enhancement factors greater weight, sentencing the appellant to eighteen years

incarceration. This issue is without merit.

III. Conclusion

Finding no error, we affirm the judgments of the trial court.

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NORMA McGEE OGLE, JUDGE

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