         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE            FILED
                         JUNE, 1997 SESSION
                                                   September 9, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,         )
                            )    No. 03C01-9610-CR-00365
            Appellee,       )
                            )
vs.                         )    Sullivan County
                            )
DAVID L. MAYES,             )    Honorable Frank L. Slaughter, Judge
                            )
            Appellant.      )    (Conspiracy to sell cocaine, possession
                            )     and sale of cocaine, possession of drug
                            )     paraphernalia)



FOR THE APPELLANT:               FOR THE APPELLEE:

NAT H. THOMAS                    JOHN KNOX WALKUP
317 Shelby St.                   Attorney General & Reporter
Suite 304
Kingsport, TN 37660               SARAH M. BRANCH
                                  Counsel for the State
                                  Criminal Justice Division
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  H. GREELEY WELLS
                                  District Attorney General
                                  Blountville, TN 37660


OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                     OPINION

              The defendant, David L. Mayes, pleaded guilty on January 18,

1995 in the Criminal Court of Sullivan County to one count of conspiracy to

deliver or sell more than 26 grams of cocaine, one count of possession with the

intent to deliver or sell six ounces of cocaine, two counts of the sale of cocaine,

and the unlawful possession of drug paraphernalia.1 After a hearing, the trial

judge sentenced him to serve an effective sentence of eighteen years in the

Department of Correction as a Range I offender.      The defendant appealed his

sentences to the Tennessee Court of Criminal Appeals, and, in its opinion issued

on March 11, 1996, this court remanded the case to the trial court for

resentencing because the trial court had not placed on the record the findings

required by Tennessee Code Annotated Sections 40-35-115, -209 and -210(f).

State v. David Lewis Mayes, No. 03C01-9505-CR-00134, slip op. at 5 (Tenn.

Crim. App., Knoxville, Mar. 11, 1996). On July 26, 1996, the trial court, at the

close of the hearing, resentenced the defendant to an effective Range I

sentence of eighteen years.



              The defendant pleaded guilty to four class B felonies. As a Range

I offender, the sentencing range for each offense is from eight to twelve years.

Tenn. Code Ann. § 40-35-112 (1990). For both the conspiracy conviction and

the possession conviction he received two ten-year concurrent sentences. For

each of the two convictions for selling cocaine, he received the minimum

sentence of eight years. These sentences run concurrently with each other. The

two eight-year sentences run consecutively to the ten-year sentences. For his

misdemeanor conviction for possession of drug paraphernalia, the judge ordered




       1
              Each count represents a separate indictment.

                                         2
him to serve eleven months and twenty-nine days concurrently with the other

sentences.



              In this appeal, the defendant raises several issues concerning his

resentencing. For the purposes of this opinion, we have consolidated the issues

into two: (1) whether the ten-year sentences for conspiracy and possession with

the intent to sell or deliver are excessive,2 and (2) whether the trial court erred by

imposing consecutive sentences. For the reasons discussed below, we affirm

the sentences imposed by the trial court.



              When an accused 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)(1990). This presumption 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 defendant has the burden of demonstrating that the

sentence is improper. Id. In the event the record fails to demonstrate the

appropriate consideration by the trial court, appellate review of the sentence is

purely de novo. Id. If our review reflects that the trial court properly considered

all relevant factors and the record adequately supports its findings of fact, this

court must affirm the sentence even if we would have preferred a different result.

State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).




       2
               The defendant does not challenge the eight-year sentences for his
two convictions for sale of cocaine as they are the minimum sentences possible
for class B felonies. Nor does he challenge the eleven month and twenty-nine
day sentence he received for possession of drug paraphernalia.

                                          3
             In making its sentencing determination, the trial court, at the

conclusion of the sentencing hearing, determines the sentencing range, the

specific sentence, and the propriety of imposing a sentence involving an

alternative to total confinement. The trial court must consider (1) any evidence

presented at trial and the sentencing hearing, (2) the presentence report, (3) the

sentencing principles. (4) the arguments of counsel, (5) any statements the

defendant has made to the court, (6) the nature and characteristics of the

offense, (7) any mitigating and enhancement factors, and (8) the defendant’s

amenability to rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), and 40-35-

210(a), (b) (1990); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.

1993). The trial court must begin with a presumptive minimum sentence. Tenn.

Code Ann. § 40-35-210(c). The sentence may then be increased by any

applicable enhancement factors and reduced in the light of any applicable

mitigating factors. Tenn. Code Ann. § 40-35-210(d),(e).



              In conducting our de novo review, we must consider the evidence

at sentencing, the presentence report, the sentencing principles, the arguments

of counsel, the statements of the defendant, the nature and characteristics of the

offense, any mitigating and enhancement factors, and the defendant’s

amenability to rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1990);

State v. Ashby, 823 S.W.2d at 168.



             From the written proposed findings filed by both the state and the

defense and the evidence and testimony presented at the first sentencing

hearing, the trial judge found that three enhancement factors and two mitigating




                                        4
factors were applicable to the convictions. 3 Based on the defendant’s record of

several misdemeanor convictions and his admitted addiction to cocaine, the trial

court held that he had a history of convictions and criminal behavior in addition to

those necessary to establish the appropriate range. Tenn. Code Ann. § 40-35-

114(1)(1990). Because the defendant was on probation when the present

offenses occurred, the trial court found that the defendant had a previous history

of unwillingness to comply with the conditions of a sentence involving release

into the community. Tenn. Code Ann. § 40-35-114(8). We note that the

defendant also committed a previous offense while on a former probation.

These two factors apply to all five convictions. The trial court applied a third

factor, that the defendant possessed or employed a firearm during the

commission of the offense, only to the convictions for conspiracy and possession

with the intent to deliver or sell. Tenn. Code Ann. § 40-35-114(9). As mitigating

factors, the trial court held that the defendant’s actions neither threatened nor

caused serious bodily harm and that he had assisted the authorities in

apprehending his co-defendant. Tenn. Code Ann. §§ 40-35-113 (1), (9).4 The

trial court applied the first mitigating factor to all the sentences, the second, only

to the sentences for conspiracy and possession.



              The gravamen of the defendant’s argument is that the trial court

enhanced his sentences two years beyond the eight-year minimum and then

failed to grant any reduction warranted by the mitigating factors. See Tenn.



       3
             Neither the defense nor the state presented any new evidence at
the resentencing hearing.
       4
               The trial court also found that the fact that the defendant had no
prior felony convictions, that he confessed to his crimes and pled guilty, and that
he had skills that made him employable were not mitigating factors applicable to
sentencing. Neither the state nor the defense has challenged these findings, and
we see no reason to disturb them on appeal.

                                          5
Code Ann. § 40-35-210(e)(1990). We respectfully disagree. The existence of

mitigating factors does not automatically entitle a defendant to a reduction in

sentence. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995).

The weight afforded any existing enhancement or mitigating factor is left to the

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

sentencing and its findings are adequately supported by the record. State v.

Shropshire, 874 S.W.2d 634, 642 (Tenn. Crim. App. 1993).



              In this case, the record fully supports the ten-year sentences

imposed by the trial court. Based on this record we are unable to conclude that

the trial judge ignored the mitigating factors in imposing the sentences. The trial

court found that the enhancement factors outweighed the mitigators; therefore

some enhancement was appropriate. The record indicates that the defendant

had six prior convictions for misdemeanors. Given the fact that the defendant

admitted that he had been “dealing” cocaine on a fairly regular basis and

described those deals in some detail, we find that enhancement factor (1) alone

would be sufficient to justify enhancing the sentence from eight to ten years.

Without the presence of the mitigating factors, the trial court may well have

imposed an even lengthier sentence.5




       5
               Because of the prevalence of enhancement factor (1), when
balanced against the asserted mitigating factors, we have not attempted to
assess the appropriateness of the mitigating factors, especially mitigating factor
(1). The sentence is supported in the record even if, arguendo, this mitigating
factor applies. We note, however, this court has previously issued opinions which
hold that mitigating factor (1) is not applicable in cases of drug dealing. State v.
Thomas Gardner, No. 01C01-9302-CR-00060 (Tenn. Crim. App., Nashville,
August 12, 1993); State v. Johnny Arwood, No. 335 (Tenn. Crim. App., Knoxville,
May 9, 1991).

                                          6
              The defendant’s last challenge is to the trial court’s decision to

impose consecutive sentences because he was an offender “whose record of

criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2)(1990). The

appellant contends that his criminal record is not so extensive as to justify

consecutive sentencing.



              Consecutive sentencing may be imposed in the discretion of the

trial court upon a determination that one or more of the criteria in Tennessee

Code Annotated section 40-35-115(b) exist.6 Consecutive sentences, however,

should not be routinely imposed even for the offender whose record of criminal

activity is extensive. Tenn. Code Ann. § 40-35-115 sentencing commission




       6
                        (b) The court may order sentences to run consecutively if the
court finds by a preponderance of the evidence that:
        (1)     The defendant is a professional criminal who has knowingly
devoted himself to criminal acts as a major source of livelihood;
        (2)     The defendant is an offender whose record of criminal
        activity is extensive;
        (3)     The defendant is a dangerous mentally abnormal person so
        declared by a competent psychiatrist who concludes as a result of
        an investigation prior to sentencing that the defendant's criminal
        conduct has been characterized by a pattern of repetitive or
        compulsive behavior with heedless indifference to consequences;
        (4)     The defendant is a dangerous offender whose behavior
        indicates little or no regard for human life, and no hesitation about
        committing a crime in which the risk to human life is high;
        (5)     The defendant is convicted of two (2) or more statutory
        offenses involving sexual abuse of a minor with consideration of
        the aggravating circumstances arising from the relationship
        between the defendant and victim or victims, the time span of
        defendant's undetected sexual activity, the nature and scope of the
        sexual acts and the extent of the residual, physical and mental
        damage to the victim or victims;
        (6)     The defendant is sentenced for an offense committed while
        on probation; or
        (7)     The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).


                                          7
comments; State v. Taylor, 739 S.W.2d 227, 230 (Tenn. Crim. App. 1987); State

v. Roscoe C. Smith, No. 01C01-9502-CR-00031, slip op. at 10 (Tenn. Crim.

App., Nashville, October 12, 1995). The Sentencing Reform Act requires the

application of the sentencing principles set forth in the Act and “a principled

justification for every sentence, including, of course, consecutive sentences.”

State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). The principles of

sentencing include the notions that the sentence should reasonably relate to the

severity of the offense and that any punishment imposed should be necessary in

order to protect the public from a defendant with a lengthy history of criminal

conduct. Tenn. Code Ann. § 40-35-102(1), (3)(B) (Supp. 1996).



              In this case, the trial judge found that the defendant’s past criminal

history which included six misdemeanor convictions and the use of marijuana

and cocaine over a twenty-year period was sufficient to warrant consecutive

sentencing. Although in many instances these facts might not be sufficient to

warrant an eighteen-year sentence for these crimes, the record also indicates

that the defendant was deeply involved in drug dealing and that he continued to

sell even after he made his first statement to the police and had assisted them in

apprehending his co-defendant. A reviewing court must look at the totality of the

circumstances presented in the record to determine whether the trial court

properly imposed a sentence. State v. Moss, 727 S.W.2d 229, 235 (Tenn. Crim.

App. 1976).



              In this instance, the record establishes that the public needs to be

protected from further serious criminal activity by the defendant. The defendant




                                          8
stands convicted of four Class B felonies involving the distribution of cocaine. An

eighteen-year sentence reasonably relates to the seriousness of these offenses.



             The judgment of the trial court is in all respects affirmed.




                                         __________________________
                                         CURWOOD WITT, Judge



CONCUR:



___________________________
JOHN H. PEAY, Judge


___________________________
JOSEPH M. TIPTON, Judge




                                         9
