State of Tennessee v. Richard W. Shelton

09/11/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 15, 2017 at Knoxville

STATE OF TENNESSEE v. RICHARD W. SHELTON

Appeal from the Circuit Court for Marshall County
No. 2016-CR-86 Forest A. Durard, Jr., Judge
___________________________________

No. M2017-00240-CCA-R3-CD
___________________________________

Richard W. Shelton, the Defendant, was charged with one count of sale and one count of
delivery of a Schedule II controlled substance. A Marshall County jury found the
Defendant guilty as charged, and the trial court sentenced the Defendant to fifteen years
with release eligibility after service of forty-five percent of the sentence in the
Department of Correction. On appeal, the Defendant argues that there was insufficient
evidence for a rational juror to have found him guilty of the offenses beyond a reasonable
doubt and that his sentence is excessive and contrary to law. After a thorough review of
the facts and applicable case law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

William J. Harold, Lewisburg, Tennessee, for the appellant, Richard W. Shelton.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Edward Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
I. Factual and Procedural Background

On June 22, 2016, the Marshall County Grand Jury indicted the Defendant on
charges of selling and delivering a Schedule II substance, morphine.
 Jury Trial

At the Defendant’s jury trial, Shawna Love testified that she had known the
Defendant for about a month and had been messaging him on Facebook. On the morning
of March 11, 2015, she and the Defendant exchanged text messages on their telephones.
The text message exchange included the following:

[THE DEFENDANT]: Ok cool you said you was tired . . . so I was gonna
say I had a tab1 you could get . . . .

[MS. LOVE]: S**t. Wouldn’t that be amazing. I got f****d up and got
into a fight last night. F****d up my elbow and some more s**t. I’m sore
as h**l.

[THE DEFENDANT]: Well[,] hit me up when you get off we can
hangout[.] [I’]m trying to get some perks[,]2 you smoke to[o][,] right[?]3

[MS. LOVE]: Yea[,] I smoke. I gotta try and get some money before I get
off. It[’]s bill week. . . . [Y]ou know how that be.

[THE DEFENDANT]: Yep[,] I feel ya[.]

[THE DEFENDANT]: Hey[.]

[THE DEFENDANT]: I got a perk [I’]ll snort with you if you do that[.]

[MS. LOVE]: Was sup[?]

[THE DEFENDANT]: What you doing[?]

[MS. LOVE]: Just got off[,] about to do a few things then I’m free[.]

[THE DEFENDANT]: Well[,] I just got finished eating but getting in
shower now so if you hit me up before [I’]m done [I’]ll hit you right back[.]

[MS. LOVE]: Okay love.

1
It is unclear whether the “tablet” that the Defendant referred to was a legal or illegal drug.
2
Ms. Love testified that “perks” referred to Percocet.
3
Ms. Love testified that the Defendant was referring to smoking marijuana.
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 [THE DEFENDANT]: You coming over[?]

[THE DEFENDANT]: I got the house to myself and I got that perk and
some dro4 so we can smoke[.] [W]hat[’]s up[?]

[THE DEFENDANT]: I need to sell some morphine[,] [d]o you know
anyone[?]

[THE DEFENDANT]: [H]it me back when you see this[.]

[MS. LOVE]: I probably do[,] lemme see[.]

[THE DEFENDANT]: Okay[,] you gonna come chill with me . . . [?]

....

[THE DEFENDANT]: If y[’]all gonna come up to my apartment[,] come
up to the 3rd and turn left first door on right #330[.]

[MS. LOVE]: Okay love[,] we got you.

At approximately 9 p.m. that evening, Ms. Love was stopped by the Seventeenth
Judicial District Drug Task Force (“DTF”) as she drove with her brother, Jesse Marshall,
and two other passengers. The DTF found a gram of marijuana belonging to Ms. Love
and marijuana and prescription pills belonging to Mr. Marshall. The DTF asked Ms.
Love and Mr. Marshall to assist them with a controlled buy in exchange for declining to
prosecute their drug charges. Ms. Love showed the DTF the text message exchange with
the Defendant on her phone; she later identified copies of the messages in court. The
DTF gave an audio recorder to Ms. Love and $100 buy money to Mr. Marshall to use in
the controlled buy. Ms. Love called the Defendant as she, her brother, and DTF Agent
Joe Ramirez were on their way to the Defendant’s apartment “to let [the Defendant]
know [Ms. Love] was on the way and also to confirm how many morphines [sic] [the
Defendant] had to sell.” Ms. Love, Mr. Marshall, and Agent Ramirez met the Defendant
at his apartment and then drove to a nearby gas station so the Defendant could purchase
cigarettes.

During the drive back to the Defendant’s apartment complex, the group discussed
the price of drugs. Ms. Love asked to purchase five morphine pills from the Defendant.

4
Ms. Love testified that “dro” refers to marijuana.
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The Defendant told Ms. Love, Mr. Marshall, and Agent Ramirez that he normally
charged $15 per morphine tablet, but he offered to sell the tablets to the group for $10.
The Defendant and Mr. Marshall got out of the vehicle and headed to the Defendant’s
apartment. After a few minutes, Agent Ramirez realized that Ms. Love needed to witness
the sale of the morphine because she was carrying the audio recorder. Ms. Love decided
that she would knock on the Defendant’s door and ask to use his bathroom. Ms. Love did
not observe any drugs while she was on her way to the bathroom, but when she left the
bathroom, the Defendant stated that he could obtain more narcotics from his uncle. Ms.
Love, Mr. Marshall, and Agent Ramirez then left the Defendant’s apartment.

Ms. Love then identified an audio recording of her two phone calls with the
Defendant before she, Mr. Marshall, and Agent Ramirez first arrived at the Defendant’s
apartment complex. Ms. Love identified the Defendant’s voice on the recording stating
that he had “five or six” and the discussion about the price of the morphine tablets.

On cross-examination, Ms. Love testified that she was never charged for
possession of marijuana related to the search of her vehicle on March 11, 2015. Ms.
Love agreed that she could not confirm that it was the Defendant who was texting her
from the Defendant’s phone number. She also agreed that it appeared that the Defendant
was flirting with her in the text message exchange and that the Defendant had invited her
over to use Percocet with him. Ms. Love agreed that she could not remember whether
Mr. Marshall paid the Defendant for the morphine tablets in the vehicle or in the
Defendant’s apartment. On redirect examination, Ms. Love clarified that the Defendant’s
text message stating that he needed to sell some morphine was sent before she was
stopped by the DTF. She also agreed that the text message discussing the sale of
morphine was not flirtatious.

Jesse Marshall testified that he had previously met the Defendant a “time or two.”
On March 11, 2015, he and Ms. Love were stopped by the DTF. The DTF found a
couple of grams of marijuana and seven or eight “Roxie” pills on Mr. Marshall; Mr.
Marshall stated that he was not charged for possession of drugs related to this incident.
Mr. Marshall agreed to assist the DTF, but he admitted that he was reluctant to participate
with the controlled buy. Agent Ramirez gave Mr. Marshall $100 to use in the controlled
buy. Like Ms. Love, Mr. Marshall testified that he, Ms. Love, and Agent Ramirez drove
to the Defendant’s apartment complex, picked up the Defendant, and drove to a gas
station. Mr. Marshall stated that the Defendant exited the vehicle and purchased
cigarettes at the gas station, and then the group returned to the Defendant’s apartment
complex. After arriving at the complex, Mr. Marshall recalled that he paid the Defendant
$100 for the tablets while in the vehicle, and the Defendant stated that Mr. Marshall
could come up to the Defendant’s apartment to get the drugs. After the Defendant and
Mr. Marshall entered the Defendant’s apartment, the Defendant informed Mr. Marshall
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that he only had five morphine tablets. The Defendant asked Mr. Marshall if he still
wanted the drugs, and Mr. Marshall said yes. The Defendant gave Mr. Marshall the
tablets and $50 in change. By this time, Agent Ramirez and Ms. Love had entered the
Defendant’s apartment. Mr. Marshall stated that he handed the tablets and $50 to Agent
Ramirez as Ms. Love entered the Defendant’s bathroom. The Defendant then informed
Mr. Marshall that he could obtain more morphine tablets later. Ms. Love, Mr. Marshall,
and Agent Ramirez said that they would purchase more drugs later and left the
Defendant’s apartment.

On cross-examination, Mr. Marshall testified that he was initially unwilling to
cooperate with the DTF; however, Ms. Love convinced him to cooperate. Mr. Marshall
agreed that he had been charged with sale of a Schedule II drug, which occurred on the
same day as the Defendant’s current offense; he agreed that this charge was later reduced
to a misdemeanor. He testified that he was aware that Ms. Love and the Defendant had
been texting earlier that day, but he was unaware of the tone of the conversation. Mr.
Marshall stated that he thought he gave $100 to the Defendant at the gas station when the
Defendant left the vehicle to purchase cigarettes, but he stated that he was uncertain.

Agent Joe Ramirez testified that he had worked for the Marshall County Sheriff’s
Department for almost three years in the DTF, which investigates “narcotics trafficking,
narcotics production, narcotics sales and narcotics usage.” Agent Ramirez testified that
other DTF agents stopped Ms. Love and Mr. Marshall at approximately 7:45 p.m. on
March 11, 2015. Agent Ramirez met with Ms. Love and Mr. Marshall and they agreed to
assist the DTF with a controlled buy of morphine from the Defendant. Agent Ramirez
asked Ms. Love and Mr. Marshall if they knew of individuals that they could purchase
drugs from, and Ms. Love answered that she could purchase morphine from the
Defendant. Ms. Love showed Agent Ramirez her text message exchange with the
Defendant, and Agent Ramirez asked her to call the Defendant to confirm that she
wanted to purchase morphine from him. The Defendant agreed to sell morphine to Ms.
Love.

Agent Ramirez then searched Ms. Love, Mr. Marshall, and Ms. Love’s vehicle to
ensure that there was no contraband or money on their persons or in the vehicle. Agent
Ramirez gave Ms. Love a recording device and $20 to purchase cigarettes and gave Mr.
Marshall $100 for the controlled buy in marked bills. Agent Ramirez also wore a
recording device. Agent Ramirez testified that he was aware of the Defendant’s price per
morphine tablet before the group left for the Defendant’s apartment complex because he
could overhear Ms. Love’s phone conversations with the Defendant. Ms. Love then
drove her vehicle, with Agent Ramirez and Mr. Marshall as passengers, to the
Defendant’s apartment complex. The group picked up the Defendant and then drove to a
nearby gas station, where Ms. Love exited the vehicle and purchased some cigarettes for
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the Defendant. The group drove back to the Defendant’s apartment complex and
discussed purchasing morphine tablets. Agent Ramirez testified that the Defendant “was
talking to us about how he normally charges $15 a pill but that in this instance he was
going to charge us $10 a pill. He said he charged anywhere between 15 and 12 in the
past, but $10 [wa]s what he was charging us.” Agent Ramirez stated that the Defendant
informed the group that “he thought he had about [six] pills left.” He also testified that
“Mr. Marshall handed $60, three $20 bills to [the Defendant], and . . . since he was to
[Agent Ramirez’s] left, his arm reached over and handed him $60.” Mr. Marshall handed
the remaining $40 to Agent Ramirez. After Mr. Marshall gave $60 to the Defendant and
the remaining $40 to Agent Ramirez, the Defendant told Mr. Marshall to go with him to
the Defendant’s apartment to get the morphine pills. Agent Ramirez stated that the
Defendant did not invite himself or Ms. Love into the apartment at that time.

Approximately one to two minutes after the Defendant and Mr. Marshall left Ms.
Love’s vehicle, Agent Ramirez “[r]ealized that [he] had made an error in judgment and it
was best that [he] was present or could witness the transaction [him]self.” Agent
Ramirez stated that Ms. Love came up with the idea that she would ask to use the
Defendant’s bathroom. Ms. Love knocked on the Defendant’s apartment door, and the
Defendant opened the door. After Agent Ramirez entered the Defendant’s apartment,
Mr. Marshall gave him five morphine tablets and $10. Agent Ramirez asked the
Defendant if those pills were all he had, and the Defendant said yes but that he could get
more pills later that day from his uncle. Agent Ramirez, Mr. Marshall, and Ms. Love
then left the Defendant’s apartment and returned to Ms. Love’s vehicle. Agent Ramirez
then submitted the pills to the DTF evidence custodian for testing.

On cross-examination, Agent Ramirez testified that, before he issued the buy
money to Ms. Love and Mr. Marshall, he photographed the bills. He explained that he
did not give Mr. Marshall a recording device because he assumed that the Defendant had
the morphine tablets on his person and that the sale would occur in the vehicle; he was
“was not aware [that] [the Defendant] was going to go back in his apartment to go get the
pills.” Agent Ramirez stated that he did not recover the $50 buy money that Mr.
Marshall used to purchase the five morphine tablets from the Defendant because he
decided against immediately making “follow-up contact” with the Defendant. On
redirect examination, Agent Ramirez stated that he did not arrest the Defendant
immediately after the controlled buy because he wanted to continue to use Mr. Marshall
and Ms. Love as confidential informants.

Tim Lane testified that he was the Director and Evidence Custodian of the DTF.
As the Evidence Custodian, Director Lane stated that he accepts sealed evidence from
agents, logs the evidence into the evidence depository, and transports the evidence to the
Tennessee Bureau of Investigation (“TBI”) Crime Laboratory. Director Lane testified
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that he handled the evidence in this case, specifically the five morphine tablets seized by
Agent Ramirez.

Jennifer Sullivan testified that she had worked as a Special Agent Forensic
Scientist in the Forensic Chemistry Unit of the TBI Crime Laboratory for ten years.
After the trial court declared Special Agent Sullivan an expert in the field of forensic
chemistry, she stated that she tested the five tablets that Director Lane delivered to the
TBI Crime Laboratory. She testified that, based on the markings on the tablets, she
identified the tablets as “morphine [thirty] milligrams.” Special Agent Sullivan stated
that morphine is a Schedule II controlled substance. She then tested one tablet and
confirmed that the tablet contained morphine.

After the trial court conducted a Momon colloquy, the Defendant decided against
testifying. The jury found the Defendant guilty of sale and delivery of a Schedule II
controlled substance, morphine.

Sentencing Hearing

At the Defendant’s sentencing hearing on December 21, 2016, the trial court
admitted the Defendant’s presentence report and certified copies of the judgments of his
previous convictions. Katie Haynes, the Defendant’s girlfriend, testified that the
Defendant had formerly worked with her and her mother in their cleaning business and
exotic pet store. She also stated that, immediately prior to his arrest and incarceration,
the Defendant was self-employed and “was doing construction for Mr. Dan Beck.” Ms.
Haynes stated that the Defendant was good with children but noted that the Defendant
was addicted to pills. She testified that, if the Defendant received an alternative sentence,
he could live at her house in Shelbyville with her mother and brother. Ms. Haynes stated
that Mr. Beck had offered to rehire the Defendant or he could work for her again.

On cross-examination, Ms. Haynes said that she needed the Defendant to help her
raise her child and help with housework and her business. She stated that the
Defendant’s children lived with the Defendant’s aunt.

Tammy Swinney, the Defendant’s sister, testified that the Defendant lived with
her for almost two years after he was previously released from incarceration. She stated
that, while the Defendant lived with her, he did not get into trouble and attended church
regularly. She believed that the Defendant’s “problems” began when he moved in with
another woman. Ms. Swinney testified that, if the Defendant received an alternative
sentence, he could live with her, her husband, and children in Columbia. Ms. Swinney
also noted that the Defendant was good with her children and worked every day.

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 On cross-examination, Ms. Swinney testified that the Defendant did not use drugs
while he lived with her “until the last little bit [when] he had started taking pills and
sleeping a lot if he didn’t have them.” Ms. Swinney admitted that she knew that the
Defendant was taking “something,” but she did not believe that the Defendant had a drug
problem at the time because she was not sure what kind of pills the Defendant was
taking. Ms. Swinney was not aware that the Defendant owed approximately $50,000 in
child support arrearage. She explained that the Defendant had custody of his children,
although the children lived with the Defendant’s aunt.

The trial court found that the Defendant was a Range III offender due to his prior
felony convictions. The trial court noted that, besides the Defendant’s five prior felony
convictions that established his range, the Defendant had convictions for contempt,
simple possession, assault, domestic assault, contributing to the delinquency of a minor,
under-age drinking, and vandalism. The trial court also noted that the Defendant had
nine violations of orders of protection and that his alternative sentences had been revoked
numerous times. The trial court found that two enhancement factors applied, that “[t]he
defendant has a previous history of criminal convictions or criminal behavior, in addition
to those necessary to establish the appropriate range[]” and that “[t]he defendant, before
trial or sentencing, failed to comply with the conditions of a sentence involving release
into the community[.]” See Tenn. Code Ann. § 40-35-114(1), (8). The trial court gave
both of these factors heavy weight. The trial court found that no mitigating factors
applied to the Defendant’s case. The trial court stated that the Defendant’s case was
“well beyond rehab” and ordered the Defendant to serve a fifteen-year sentence with
release eligibility after service of forty-five percent of the sentence.

The trial court stated that it had considered the Defendant’s presentence report, his
social, mental, and physical history, the facts and circumstances surrounding the offense,
the Defendant’s potential of rehabilitation, whether the Defendant would abide by the
terms of alternative sentencing, and the Defendant’s risk of reoffending. The trial court
found that the Defendant had “failed miserably every time he has been placed on some
form of community release given the number of violations of probation he has [had].”
The trial court also found that the Defendant would not abide by the terms of a probation
agreement. Regarding whether the interests of society would be protected from possible
future criminal conduct if the Defendant were incarcerated, the trial court found that the
Defendant had “offended and re-offended many times.” The trial court also found that
the Defendant had “a number of unsuccessful attempts[]” at “measures less restrictive
than confinement ” and that confinement was suited to provide an effective deterrence in
this case because “incarceration should provide some deterrence.” The trial court ordered
the Defendant to serve his sentence in confinement and that his sentence would run
consecutively to any previous unserved sentences. The trial court merged count two,

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delivery of a Schedule II controlled substance, with count one, sale of a Schedule II
controlled substance. The Defendant filed a timely notice of appeal.

II. Analysis

Sufficiency of the Evidence

On appeal, the Defendant argues that the evidence introduced at trial was
insufficient for a rational juror to find him guilty of sale and delivery of a Schedule II
controlled substance beyond a reasonable doubt and that the jury should have found him
guilty of casual exchange. The State contends that “a rational jury could conclude that
the [D]efendant knowingly sold and delivered a controlled substance[]” because the
Defendant “planned and completed a drug transaction, even offering a discount and
giving his customer change based on the amount sold.”

Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

“It is an offense for a defendant to knowingly[] . . . [d]eliver a controlled
substance[] [or] [s]ell a controlled substance[.]” Tenn. Code Ann. § 39-17-417(a)(2)-(3)
(2015). The sale or delivery of morphine, a Schedule II controlled substance, see Tenn.
Code Ann. §39-17-408(b)(1)(I) (2015), “in an amount of less than point five (0.5) grams,
is a Class C felony . . . .” Tenn. Code Ann. § 39-17-417(c)(2)(A) (2015).

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 In State v. Donald L. Haynes, this court addressed the differences between a sale
and a casual exchange of drugs as the following:

A “casual exchange” is an exchange made without design. See State
v. Helton, 507 S.W.2d 117, 120 (Tenn. 1974). Such an exchange may
include a transaction in which money is involved. Id. “[A] casual
exchange is simply the transfer of drugs without the characteristics of
bargaining, pecuniary motive, and design typical of a sale. Thus, a
common example of a casual exchange is the spontaneous passing of a
small amount of drugs at a party.” State v. Edward P. Harris, No. 01C01-
9810-CR-00392, 2000 WL 19536, at *3 (Tenn. Crim. App. Jan. 13, 2000).
Whether a transfer is a casual exchange is to be determined from all the
facts and circumstances of the case. Helton, 507 S.W.2d at 120-21. Facts
and circumstances indicating that the transaction is not a casual exchange
include a lack of evidence that the defendant gave the drugs to the buyer
out of friendship or as a friendly gesture, see State v. Jack Allison, No.
01C01-9402-CC-00061, 1995 WL 60006, at *4 (Tenn. Crim. App. Feb. 14,
1995); no evidence reflecting anything other than a pecuniary motive for
the transfer of the drugs, see Harris, 2000 WL 19536, at *3; no prior
relationship between the defendant and the buyer, see id.; and no reason for
the defendant and the buyer to be together, other than for the buyer to
purchase drugs, see State v. Eric Larez, No. 03C01-9810-CR-00379, 1999
WL 997514, at *4 (Tenn. Crim. App. Nov. 4, 1999).

No. E2000-00672-CCA-R3-CD, 2001 WL 416729, at *4 (Tenn. Crim. App. Apr. 24,
2001), perm. app. denied (Tenn. Oct. 1, 2001).

When viewed in the light most favorable to the State, the evidence introduced at
trial establishes that, after texting Ms. Love about smoking marijuana and taking
Percocet, the Defendant asked if she knew anyone who wanted to purchase morphine.
Prior to the offense, Mr. Marshall had only met the Defendant a few times. Shortly after
that message exchange, Ms. Love and Mr. Marshall were stopped by the DTF, and they
agreed to assist the DTF. Ms. Love then called the Defendant to confirm that she wanted
to purchase some morphine tablets. After picking up the Defendant and stopping to
purchase cigarettes, the Defendant told Ms. Love, Mr. Marshall, and Agent Ramirez that
he normally charged $15 per morphine tablet, but he offered to sell the tablets to the
group for $10; the Defendant acted with a pecuniary motive and his offer was typical of a
sale. Mr. Marshall, who had not been communicating with the Defendant regarding
smoking marijuana or taking Percocet, paid the Defendant $60 for six morphine tablets
and accompanied the Defendant to his apartment to obtain the tablets. Mr. Marshall
testified that the Defendant gave him five morphine tablets and $10 in change. Agent
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Ramirez then realized that Mr. Marshall did not have a recording device, and he and Ms.
Love entered the Defendant’s apartment, where Mr. Marshall gave Agent Ramirez five
loose tablets and $10. While Agent Ramirez did not personally observe the Defendant
give Mr. Marshall the tablets, Mr. Marshall testified that he received the tablets from the
Defendant and immediately handed them to Agent Ramirez. Further, Ms. Love, Mr.
Marshall and Agent Ramirez all testified that the Defendant stated that he could obtain
more morphine tablets from his uncle later that day.

The jury also heard proof of the Defendant’s friendly text message exchange with
Ms. Love prior to the incident. It was within the jury’s purview to reject the Defendant’s
theory of casual exchange and to convict the Defendant of sale and delivery of a
Schedule II drug. Not only did the Defendant establish the price of the morphine tablets,
by offering the tablets for a discount, but he also sold the drugs to Mr. Marshall, who had
only met him a few times previously and did not have an established relationship with the
Defendant. The evidence introduced at trial was sufficient for a rational juror to have
found the Defendant guilty beyond a reasonable doubt of sale and delivery of a Schedule
II controlled substance. The Defendant is not entitled to relief on this ground.

Excessive Sentence

The Defendant also contends that his sentence of fifteen years with a forty-five
percent release eligibility is excessive and contrary to law. More specifically, he argues
that the trial court should have sentenced him to “something closer to the minimum for
the range and granted some form of alternative sentence, preferably one with a strong
drug rehabilitation component.” He states that “[t]he trial court erred by placing too
much weight on [the Defendant’s] record and probation violations, and not giving weight
to what the [trial] court considered to be a situation in which a guy was flirting with a girl
and the support system that has developed since the incident.” The State asserts that “the
trial court articulated a reasoned basis for imposing a within-range sentence based on
appropriate enhancement factors.”

Standard of Review

When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). “[A] trial
- 11 -
court’s misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from its sentencing determination.” Bise, 380 S.W.3d at
709. Moreover, under those circumstances, this court may not disturb the sentence even
if it had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2008).

In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210 (2015); State v. Taylor, 63 S.W.3d
400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or
lack of potential for rehabilitation or treatment of the defendant in determining the
sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103
(2015).

To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2015); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2015), Sentencing Comm’n Cmts.

Sentence Length

In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
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 Tenn. Code Ann. § 40-35-210(c) (2015).

Although the trial court should also consider enhancement and mitigating factors,
such factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2015); see also Bise,
380 S.W.3d at 699 n. 33, 704; State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). We
note that “a trial court’s weighing of various mitigating and enhancement factors [is] left
to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the
trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’”
Id. at 343. A trial court’s “misapplication of an enhancement or mitigating factor does
not invalidate the sentence imposed unless the trial court wholly departed from the 1989
Act, as amended in 2005.” Bise, 380 S.W.3d at 706. “[Appellate courts are] bound by a
trial court’s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Carter, 254 S.W.3d at 346.

Here, the Defendant was convicted of sale and delivery of a Schedule II controlled
substance, a Class C felony. See Tenn. Code Ann. § 39-17-417(c)(2)(A) (2015). The
trial court found that the Defendant was a Range III offender; a Range III sentence for a
Class C felony is “not less than ten (10) nor more than fifteen (15) years[.]” Tenn. Code
Ann. § 40-35-112(c)(3) (2015). The trial court ordered the Defendant to serve a fifteen-
year sentence. Because the trial court properly applied the purposes and principles of our
Sentencing Act and because this sentence was within the statutorily-applicable range, it is
afforded a presumption of reasonableness, and this court will not overturn it absent an
abuse of discretion.

The trial court found that two enhancement factors applied, that “[t]he defendant
has a previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range[]” and that “[t]he defendant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
community[.]” See Tenn. Code Ann. § 40-35-114(1), (8) (2015). The trial court noted
that, besides the Defendant’s five prior felony convictions that established his range, the
Defendant had convictions for contempt, simple possession, assault, domestic assault,
contributing to the delinquency of a minor, under-age drinking, and vandalism. The trial
court also noted that the Defendant had nine violations of orders of protection and that his
alternative sentences had been revoked numerous times. The trial court gave both of
these factors heavy weight and found that no mitigating factors applied.

We conclude that the trial court did not abuse its discretion by sentencing the
Defendant to fifteen years. The presentencing report clearly establishes that the
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Defendant has an extensive criminal record; the Defendant has two contempt of court
convictions, two Schedule II drug offense convictions, two assault convictions, six
domestic violence convictions, three Schedule VI drug offense convictions, and one
conviction of vandalism. The Defendant has also been convicted of contributing to the
delinquency of a minor, underage drinking, and bringing contraband into a penal facility.
The record also establishes that the Defendant has previously failed to comply with the
conditions of his release into society. The Defendant is not entitled to relief on this
ground.

Manner of Service

“A defendant shall be eligible for probation under this chapter if the sentence
actually imposed upon the defendant is ten (10) years or less . . . .” Tenn. Code Ann. §
40-35-303(a) (2015). “To be eligible for community corrections under Tenn[essee] Code
Ann[otated] [section] 40-36-106(c), a defendant must first be eligible for probation under
Tenn[essee] Code Ann[otated] [section] 40-35-303.” State v. Kendrick, 10 S.W.3d 650,
655 (Tenn. Crim. App. 1999).

Here, the trial court ordered the Defendant to serve his sentence in confinement
after finding that the interests of society would be protected from possible future criminal
conduct if the Defendant were incarcerated because the Defendant had “offended and re-
offended many times[,]” that the Defendant had “a number of unsuccessful attempts[]” at
“measures less restrictive than confinement[,]” and that confinement was suited to
provide an effective deterrence in this case because “incarceration should provide some
deterrence.”

Because the trial court ordered the Defendant to serve a sentence of fifteen years,
he was not statutorily eligible for probation or community corrections under the “special
needs” provision. The Defendant was not eligible for community corrections under
Tennessee Code Annotated section 40-36-106(a)(1) because he has a past pattern of
behavior indicating violence and he has demonstrated a pattern of committing violent
offenses, namely, his two assault convictions and six domestic violence convictions. See
State v. Noah Keith Tipton, No. E2014-02531-CCA-R3-CD, 2015 WL 9015989, at *5
(Tenn. Crim. App. Dec. 15, 2015), no perm. app. filed (the defendant’s prior assault and
domestic violence charges made him ineligible for community corrections under Tenn.
Code Ann. § 40-36-106(a)(1)(E)). The Defendant is not entitled to relief on this ground.

III. Conclusion

We conclude that the evidence was sufficient for a rational juror to have found the
Defendant guilty beyond a reasonable doubt of sale and delivery of a Schedule II
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controlled substance, morphine. We also conclude that the trial court did not err in
sentencing the Defendant to serve a sentence of fifteen years with a forty-five percent
release eligibility in the Department of Correction. For the aforementioned reasons, the
judgments of the trial court are affirmed.

____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE

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