        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 17, 2008

          STATE OF TENNESSEE v. IWANDA ANITA BUCHANAN

                  Direct Appeal from the Circuit Court for Bedford County
                      Nos. 16309, 16322-16324 Robert Crigler, Judges




                No. M2007-02870-CCA-R3-CD          - Filed October 6, 2008

The Defendant pled guilty to four counts of selling .5 grams or more of a Schedule II drug and one
count of possession of .5 grams or more of a Schedule II drug for resale. The trial court sentenced
her as a Range II, multiple offender to an effective twenty-seven year sentence. On appeal, the
Defendant argues that the trial court erred by sentencing her as a Range II offender. We affirm the
judgment of the trial court.


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


ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR. and J.C. MCLIN , JJ., joined.


Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the Appellant, Iwanda Anita Buchanan.


Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Benjamin A. Ball, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General;
Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                           OPINION


                                             I. Facts


                                    A. Guilty Plea Hearing


       At the plea acceptance hearing, the State recited the following facts as the basis for the
Defendant’s guilty plea:


       First in case 16309 those event occurred on April 18, 2007. Agents of the Drug Task
       Force met with the confidential informant who indicated that the confidential
       informant or the confidential informant indicated that an individual known by the
       street name Pumpkin, who is the defendant, she knew her as Iwanda Buchanan but
       she goes by the street name Pumpkin was involved in the illegal distribution of crack
       cocaine.


               The confidential informant agreed to assist the Drug Task Force in a targeting
       effort against the defendant. On that date, first a recorded telephone call was placed
       to the defendant propositioning her to sell $100 worth of crack cocaine. A time and
       place was set up for that transaction to occur. Agents of the Drug Task Force as well
       as city police officers then set up surveillance on the defendant’s residence. They
       actually observed her come home a short time before the transaction occurred. They
       then observed the confidential informant arrive. I will say the confidential informant
       was searched before the transaction and the vehicle that was to be used by the
       confidential informant was searched and that met with negative results.


               The confidential informant was provided a transmitter and $100 in Drug Task
       Force funds. The confidential informant went into the defendant’s residence and
       handed the defendant $100. Received in exchange a quantity of crack cocaine. The
       confidential informant then departed and met back up with the task force agents and
       turned that over to them. That was sent to the lab. It was crack cocaine weighing one
       gram.


              In case number 16322, those events occurred on April 20, 2007. Again this
       was a confidential informant working with agents of the Drug Task Force. They had
       the confidential informant place a recorded and monitored telephone call to the
       defendant about a possible drug transaction and a time and place was set up for that
       to occur. They then searched the informant and the informant’s vehicle and that met
       with negative results. They then provided the informant with $100 in prerecorded
       funds and a transmitter to record the transaction.


              The events actually occurred and took place at the Magic Spray Car Wash on
       Colloredo Boulevard. The defendant went through the car wash but as soon as the
       vehicle came through the car wash she got out, the confidential informant
       approached, or excuse me. The defendant stayed in the vehicle and the confidential
       informant approached the driver’s side of the defendant’s vehicle wherein the
       confidential informant handed $100 to the defendant. The defendant handed back

                                                 2
a quantity of suspected crack cocaine. The confidential informant noticed that the
crack cocaine came from a larger piece of crack cocaine that the defendant had in her
possession. The confidential informant returned to the task force agents and
relinquished to them the drugs that had just been purchased. That was sent to the lab
and it weighed 6 tenths of a gram.


        In case number 1632[3], those events occurred on April 25, 2007. Again,
much like the other events, the agents met with a confidential informant; a monitored
and recorded telephone call was placed to the defendant to set up a drug deal at the
time for $100. They searched – and this time the transaction was to take place in the
confidential informant’s home. The agents searched the confidential informant and
the area around the confidential informant. That met with negative results.


        They then provided her with $100 and a transmitter. Agents then took up
various surveillance positions including inside the confidential informant’s residence.
They were actually able to see the defendant walk away from her residence to the
CI’s residence. They were actually able to see the defendant enter. She was carrying
a small child in her arms. The defendant then produced a quantity of crack cocaine
from a pocket and broke off a piece of it. Set it on a table and received $100 in return
and the defendant and her child then walked back to their residence. The agents of
course then stepped out and took possession of the crack cocaine involved in that
transaction. It was sent to the lab. It weighed five tenths of a gram.


        Lastly in case number 16324, these events took place on April 27, 2007. The
agents again met with the confidential informant. The confidential informant had
already had some conversation with the defendant about a drug transaction. They
then had the confidential informant place an additional telephone call to confirm that.
They then searched the confidential informant and the confidential informant’s
vehicle and that met with negative results. They provided a transmitter. They
provided $100 in prerecorded funds. The confidential informant then under the
surveillance of the agents went to the area around what we call the GoodWill store
and the Dollar Store. And the defendant was observed entering the confidential
informant’s vehicle.


       The defendant received $100 from the confidential informant and the
defendant handed over to the confidential informant a quantity of crack cocaine. The
defendant was then observed exiting the confidential informant’s vehicle. The
confidential informant then met back up with the task force agents; the agents
received the drugs that had been involved in the transaction. They had been – they
were sent to the lab. They weighed seven tenths of a gram. That is as to count 1 of
16324.

                                           3
               Later on that same day agents of the Drug Task Force observed the defendant
       driving her Nissan Altima. I think in almost all of these transactions they had seen
       the Nissan Altima. Perhaps except for the one where the defendant and her child
       came to the CI’s residence. They were familiar with her vehicle. They see her. They
       are familiar with her. They actually conducted a traffic stop of her in order to arrest
       her for all of these previous sales. As they approached her vehicle, they got her out
       of the vehicle. They also removed a purse from inside of her vehicle and she actually
       attempted to grab that away from them. And there turns out there were two plastic
       bags in the purse. There was a little bit of a struggle for the purse. She was
       immediately handcuffed and the plastic bags, one contained a quantity of crack
       cocaine and the other one contained a quantity of marijuana. They also seized from
       her person $1002 in US currency and they also seized an additional $200 from inside
       of the vehicle for a total of $1202.


              They had a search warrant for her home. They conducted a search at her
       home that day. I believe they used Officer Tracy Nelson and her K-9, and believe
       another quantity of crack cocaine was seized from her person. There was a marijuana
       grinder; a marijuana smoking pipe and a small amount of marijuana was seized from
       her house.


                They interviewed the defendant first by administering her Miranda rights.
       She understood those and waived those. She indicated to the task force agents that
       she had been selling crack cocaine on a regular basis for approximately the last four
       to six months. She normally purchased quarter ounce or half ounce quantities from
       her source. She would then sell the crack in much smaller quantities to customers
       at the street level. She indicated she could normally make a profit of $400 for each
       half ounce of crack that she purchased. She gave the name of her source of supply.
       She indicated that she had been renting vehicles and in fact the Nissan Altima was
       a rental. She indicated she normally made about $800 per week selling crack
       cocaine. She said just that day she had already made $400 selling crack cocaine. She
       was asked if she had any other employment at that time and she indicated sometimes
       she cuts hair and makes a little bit of money from doing that. She was asked if she
       had a filed a federal tax return for 2006; she indicated she did not.


        The Defendant agreed that these facts were true and pled guilty to four counts of selling .5
grams or more of a Schedule II drug and to one count of possessing .5 grams or more of a Schedule
II drug with the intent to resell.

                                     B. Sentencing Hearing

       At the sentencing hearing, the following evidence was presented: Timothy Lane, the Director

                                                 4
of the 17th Drug Task Force, testified that his agency investigates and prosecutes drug crimes. He
stated that crack cocaine was the main problem that his agency faced.

        The Defendant testified that she was forty-four years old and was living by herself when she
was arrested. She said she earned some income from braiding and cutting hair. The Defendant
admitted being addicted to crack cocaine for “about 18 years.” She said she “changed [her] life”
three years before the sentencing hearing and began going to church. The Defendant acknowledged
that her addiction to crack cocaine was life-long. She did not graduate from high school and said
she was laid off from work due to high blood pressure. The Defendant said she would like to not
be in jail because she was “tired” and would like to teach her grandson to not be in jail.

       On cross-examination, the Defendant clarified that she had not used crack cocaine in three
years. She admitted to having a friend’s child with her one time when she sold crack cocaine. The
Defendant said that her son is in the Tennessee Department of Correction for selling cocaine. She
admitted being convicted of robbery and aggravated assault in 1995. After serving a period of
incarceration, she subsequently violated her parole several times. The Defendant stated, “I am not
the same person that I was then. Back then I didn’t care . . . . But today it is not like that.”

        The trial court ordered the Defendant to serve concurrent thirteen-year sentences for cases
16309, 16322, and 16323. The trial court ordered concurrent fourteen-year sentences for the two
counts in case 16324. The thirteen-year sentences were to be served consecutively to the fourteen-
year sentences, creating an effective twenty-seven-year sentence. It is from this judgment that the
Defendant now appeals.

                                            II. Analysis

        On appeal, the Defendant argues that the trial court erroneously sentenced her as a Range II,
multiple offender. Specifically, the Defendant argues that her prior convictions for robbery and
aggravated assault, which were committed on the same day, should not count as separate convictions
for purposes of establishing the range.

         When a defendant challenges the length, range or manner of service of a sentence, this Court
must conduct a de novo review on the record with a presumption that “the determinations made by
the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2006). As the
Sentencing Commission Comments to this section note, the burden is now on the appealing party
to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts. This
means that if the trial court followed the statutory sentencing procedure, made findings of facts
which are adequately supported in the record, and gave due consideration and proper weight to the
factors and principles relevant to sentencing under the 1989 Sentencing Act, T.C.A. § 40-35-103
(2006), we may not disturb the sentence even if a different result was preferred. State v. Ross, 49
S.W.3d 833, 847 (Tenn. 2001). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing a defendant or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001);


                                                  5
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929
(Tenn. Crim. App. 1994).

        The defendant argues that the trial court should have sentenced her as a Range I “standard
offender” rather than as a Range II “multiple offender.” A “standard offender” is “a defendant not
sentenced as: (1) a multiple offender.” T.C.A. § 40-35-105 (2006). “A ‘multiple offender’ is a
defendant who has received: (1) A minimum of two (2) but not more than four (4) prior felony
convictions within the conviction class, a higher class, or within the next two (2) lower felony
classes.” T.C.A. § 40-35-106(a)(1) (2006). Additionally, the Tennessee Code provides that

        In determining the number of prior convictions a defendant has received: . . . [e]xcept
        for convictions for which the statutory elements include serious bodily injury, bodily
        injury, threatened serious bodily injury, or threatened bodily injury to the victim or
        victims, convictions for multiple felonies committed within the same twenty-four-
        hour period constitute one (1) conviction for the purpose of determining prior
        convictions.

T.C.A. § 40-35-106(b)(4) (2006). The Sentencing Commission Comments shed further light on this
exception by providing the following pertinent example, “if the defendant was convicted of robbing
several people in the same store, such would constitute separate convictions for enhancement
purposes for a new violation of the law.” T.C.A. § 40-35-106. The Commission then reasoned that
separating the convictions “is in accord[ance] with the policy of giving greater “weight” to crimes
of violence.” T.C.A. § 40-35-106.

         The trial court in this case found the Defendant to be a Range II, multiple offender because
she had been convicted of aggravated assault and robbery from an event that transpired on July 1,
1994. Addressing the two prior convictions, the trial court said, “Aggravated assault either involves
a deadly weapon or infliction of serious bodily injury. Robbery certainly, the elements involved in
that, include serious bodily injury, bodily injury, threatened serious bodily injury or threatened bodily
injury to the victim or victims.” The court continued, “I believe that those two convictions,
agg[ravated] assault and robbery would constitute two under that statute and make her a Range II
offender.”

        On review, we conclude the trial court properly sentenced the Defendant as a Range II,
multiple offender. She has convictions for robbery and aggravated assault from an event on July 1,
1994. Robbery is a Class C felony, and it is defined as “the intentional or knowing theft of property
from the person of another by violence or putting the person in fear.” T.C.A. § 39-13-401 (2006).
Aggravated assault is a Class C felony and occurs when a person “intentionally or knowingly
commits an assault as defined in § 39-13-101 and: (A) causes serious bodily injury to another; or (B)
Uses or displays a deadly weapon.” T.C.A. §39-13-102 (2006). Assault is when a person “(1)
Intentionally, knowingly or recklessly causes bodily injury to another; (2) Intentionally or knowingly
causes another to reasonably fear imminent bodily injury; or (3) Intentionally or knowingly causes
physical contact with another and a reasonable person would regard the contact as extremely offense


                                                   6
or provocative.” T.C.A. § 39-13-101 (2006). Both robbery and aggravated assault contain elements
that the defendant cause or threaten to cause bodily injury. As such, even if a defendant committed
both crimes during the same transaction, they would count as separate prior convictions when
determining the Range of a defendant. While the Defendant in this case was convicted of robbery
and aggravated assault arising from the same transaction, the trial court properly counted the
convictions as separate prior convictions. Because the Defendant had two prior convictions of Class
C felonies, and her present convictions were Class B felonies, she was a Range II, multiple offender.
The Defendant is not entitled to relief on this issue.

                                         III. Conclusion

       After a thorough review of the record and the applicable law, we conclude the trial court
properly sentenced the Defendant. As such, we affirm the trial court’s judgments.


                                                           ________________________________
                                                            ROBERT W. WEDEMEYER, JUDGE




                                                 7
