        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 19, 2012

              STATE OF TENNESSEE v. WINSTON C. MCCLAIN

              Direct Appeal from the Circuit Court for Marshall County
                      No. 2011-CR-83     Robert Crigler, Judge


               No. M2012-00252-CCA-R3-CD - Filed December 13, 2012


The defendant, Winston C. McClain, appeals the sentencing decision of the Marshall County
Circuit Court. After entering an open plea agreement, and following merger, the defendant
stands convicted of: (1) sale of less than .5 grams of a Schedule II controlled substance, a
Class C felony; (2) possession with intent to sell .5 grams or more of a Schedule II controlled
substance, a Class B felony; (3) simple possession of marijuana, a Class A misdemeanor; (4)
unlawful possession of drug paraphernalia, a Class A misdemeanor; (5) evading arrest, a
Class A misdemeanor; and (6) resisting arrest, a Class B misdemeanor. Following a
sentencing hearing, the defendant was sentenced to an effective term of twelve years in the
Department of Correction. On appeal, he contends that the sentence is excessive and
contrary to law. Following review, we affirm the sentence as imposed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Donna Orr Hargrove, District Public Defender; and William J. Harold, Assistant District
Public Defender, for the appellant, Winston C. McClain.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Bernard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                      Procedural History and Factual Background
       The relevant facts underlying the defendant’s multiple convictions, as recited by the
State at the guilty plea hearing, are as follow:

              On July 22, 2011, agents of the Drug Task Force were working with a
       confidential informant in the Lewisburg, Marshall County area. The
       confidential informant indicated that the CI could purchase crack cocaine from
       a black male that went by the name of Chad and gave a description. Said that
       Chad was currently staying at a room at the Walking Horse Lodge here in
       Lewisburg. The CI indicated that the CI owed for a prior drug purchase in the
       amount of $200 and would have to pay that before being able to purchase
       anymore crack from the defendant. I believe there were a series of recorded
       telephone calls between the CI and the defendant about purchasing crack
       cocaine and paying the prior drug debt. So the purchase was going to be $150
       worth and was supposed to weigh approximately 3 and a half grams.
       Ultimately, the CI was searched and taken to an area near the Walking Horse
       Lodge. Was let out of the vehicle and watched as the CI went to that particular
       room.

              The CI then entered the room; made contact with the defendant; paid
       the $200 prior drug deal; and paid the $150 for the purchase; received crack
       cocaine from the defendant and left; and returned to the Task Force agents.

              When the dope was turned over to them, they immediately noticed that
       it appeared to be substantially less than 3 and a half grams, so I think they
       actually had the CI call the defendant and complain about the weight. And the
       defendant said, Well, just tell you what, just bring it back.

              Of course, they did not do that. They took that into evidence. . . .

             Later that same day, the agents maintained surveillance on the motel
       room. They observed the defendant leaving the room. I believe he had a white
       female and perhaps, I believe, some children with him. They entered a vehicle
       and began to leave.

             The Task Force agents attempted to conduct a traffic stop of the vehicle
       occupied by the defendant. The defendant didn’t just immediately stop in
       response to the blue lights. They ultimately made contact with the defendant.
       They conducted a search of him and discovered, I believe it was $680 on his
       person, $350 of which matched the money used by the confidential informant
       working for the Task Force in the transaction that I just described.

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              They obtained permission from the defendant to go back to the motel
       room. And in the motel room, they discovered additional crack cocaine; scales
       and baggies; and also, a small amount of marijuana, which, of course, was all
       taken into evidence.

              The crack cocaine that was recovered from the room weighed, I believe
       it was over 21 grams. The defendant did admit that he had been involved in
       the distribution of crack cocaine in the Lewisburg area and had been
       purchasing multiple ounces and reselling it.

After being indicted by a Marshall County grand jury, the defendant began negotiating with
the State, which eventually led to the defendant entering an open plea with the court.

       A sentencing hearing was held on January 9, 2012. The State called Crystal Gray, an
employee of the Probation and Parole Department, who prepared the defendant’s pre-
sentence report. She noted that the twenty-five-year old defendant, who was a confirmed
member of the Crips gang, maintained that he had committed the crimes to support his fiancé
and her children. The defendant stated to her that he “ha[d] never been given a chance.” Ms.
Gray testified, however, that the defendant had been on probation multiple times as a juvenile
and once as an adult. In fact, the defendant was on probation at the time the instant crimes
were committed. Ms. Gray detailed the litany of infractions committed by the defendant,
which began when he was ten years old and included aggravated assault, unruly conduct,
weapons offenses, escape, possession of drugs, and violations of probation. In 2002, at the
age of fifteen, the defendant committed aggravated robbery and was tried and sentenced, as
an adult, to eleven years. Because of numerous infractions committed while in the
Department of Correction, the defendant was repeatedly denied parole. These infractions
included indecent exposure, fighting, refusing direct orders, violations of prison policy,
creating disturbances, possession of contraband, showing disrespect, provoking staff and
inmates, using intoxicants, sexually harassing others, larceny, and assault. He was released
from custody on November 21, 2010, only a few months prior to committing the instant
crimes.

        The defendant acknowledged that he smoked marijuana and used cocaine upon his
release from prison. He indicated that he smoked marijuana daily and used cocaine about
once a week during this period. The defendant also was not employed prior to committing
the instant offenses.

        Ms. Gray also testified about the circumstances of the defendant’s arrest. On the day
of the drug sale and the subsequent search of his motel room, the defendant agreed to assist
task force officers. He acknowledged to the officers that he had been involved in the

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distribution of crack cocaine in the area, and he gave them the name of his supplier. The
defendant indicated that he purchased multiple ounces of cocaine at a time. Because of the
defendant’s agreement to help them, the officers did not arrest him that day. However, the
defendant failed to contact them or provide any further assistance. Thereafter, the officers
obtained a warrant for the defendant’s arrest. When they attempted to take him into custody,
the defendant ran.

       The State also called Lieutenant Shane Daugherty with the 17th Judicial District Drug
Task Force who was involved in the defendant’s case and arrest. He acknowledged that the
defendant had provided the name of his supplier and certain other details, which were
corroborated by information the task force already had. However, the defendant did not
participate in any controlled buys with the task force. Lieutenant Daugherty also testified
that cocaine and crack cocaine usage was a major problem in Marshall County and that
incarceration for these type of offenses was absolutely a deterrent to the distribution of crack
cocaine.

       After hearing the evidence presented, the trial court imposed sentence on the
defendant, as a Range I offender. The court noted that the sale and delivery offenses in
Counts 1-4 were alternative charges and merged Count 2 into 1 and Count 4 into 3.
Thereafter the court sentenced the defendant as follows: (1) six years for the sale of less than
.5 grams; (2) twelve years for the possession with intent to sell; (3) eleven months and
twenty-nine days each for the simple possession, unlawful possession of drug paraphernalia,
and the evading arrest; and (4) six months for the resisting arrest. All sentences were ordered
to be served concurrently for an effective sentence of twelve years, although the court ran
these sentences consecutively to an unexpired sentence from the Lewisburg City Court.
Moreover, the court ordered that the sentence be served in the Department of Correction.
The defendant has filed a timely notice of appeal from the sentencing decision.

                                           Analysis

       On appeal, the defendant contends that his sentence is excessive and contrary to the
law. Our review of a defendant’s challenge to the length, range, or manner of service of a
sentence, has been 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) (2010). In a recent opinion, our supreme court provided a thorough review of the
more recent developments in our sentencing laws and adopted a new standard of review for
sentencing in light of these changes. State v. Bise, ___ S.W.3d ___, No. E2011-00005-SC-
R11-CD (Tenn., Sept. 26, 2012). In announcing the new standard of review, the Bise court
reasoned:



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       [W]hen the 2005 amendments vested the trial court with broad discretionary
       authority in the imposition of sentences, de novo appellate review and the
       “presumption of correctness” ceased to be relevant. Instead, sentences
       imposed by the trial court within the appropriate statutory range are to be
       reviewed under an abuse of discretion standard with a “presumption of
       reasonableness.”

Id. Therefore, we review the defendant’s sentencing challenge under an abuse of discretion
standard with a “presumption of reasonableness.” Id.

       In setting the sentence length in this case, the trial court made the following detailed
findings:

              As to mitigating and enhancing factors, the defendant’s adult record is
       a criminal trespass conviction. . . .

              ....

             Then he had a probation violation on that . . . and was ordered to serve
       30 days. That is his adult record.

               His juvenile record is as bad as any I have ever seen, but I will get to
       that in just a minute. . . .

              Enhancing factors are criminal convictions or criminal conduct as an
       adult. But in addition to those criminal convictions, as an adult, . . . there is
       evidence of criminal conduct . . . in which the defendant, when he was initially
       arrested said he had been involved in the distribution of crack cocaine in the
       Lewisburg area. [The defendant] identified his source of supply and stated he
       was purchasing multiple ounces of cocaine at one time.

              ....

              [T]he defendant admits to other criminal conduct in his use of drugs.

               He stated he used cocaine one or two times before he was incarcerated
       in TDOC. Started using it again the first night he was released from TDOC
       . . . . His last use was about a week . . . before he was arrested on these
       charges.



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              ....

               Also, I find enhancing factor number 16 in two respects: That is, that
       he had convictions as a juvenile that would have been felonies as an adult, . .
       . the aggravated robbery - - well, actually, I take that back. That was an adult
       conviction . . . because he was transferred.

              He has an aggravated assault [as well]. So the aggravated robbery . .
       . would go to enhancing factor 1 rather than 16. . . .

              The aggravated assault conviction . . . is a felony, so that would be an
       enhancing factor because it was a conviction for aggravated assault while he
       was a juvenile.

              As to mitigating factors, there’s been a lot made about him naming his
       source.

              It certainly would be entitled to more weight if he assisted the Task
       Force in setting somebody up or providing more information. But
       nevertheless, he gave a source, gave some detail about it that proved to be
       accurate. He is entitled to some consideration for that, albeit not what it would
       be had he assisted the Task Force.

              He also entered an open plea. So that is some mitigation there, is
       mitigating factor number 13.

              Nevertheless, the weight I am giving to those enhancing factors is such
       that I am going to impose a 12-year sentence on Count 3, which is the
       maximum; 6 on Count 1; 11/29 on the A misdemeanors, at 75 percent; 6
       months at 75 percent on resisting arrest.

The trial court declined the State’s request to run the sentences consecutively and the
defendant’s request for alternative sentencing. The court noted the defendant’s “atrocious”
history of behavior while he served his eleven-year sentence and observed that the defendant
had been in the juvenile system since he was ten years old. Based on those facts, the trial
court found that the defendant’s potential for rehabilitation was slight.

      On appeal, the defendant contends that the trial court did not comply with the
purposes and principles of sentencing when weighing enhancement and mitigating factors.
He argues that the sentence is not appropriate because he had a limited adult criminal record,

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saved the State the expense of a trial, and was trying to financially provide for his fiancé and
her children.

       The Criminal Sentencing Act of 1989 and its amendments describe the process for
determining the appropriate length of a defendant’s sentence. Under the Act, a trial court
may impose a sentence within the applicable range as long as the imposed sentence is
consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2) and (d); see also
State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). In order to ensure “fair and consistent
sentencing,” the trial court must “place on the record” what, if any, enhancement and
mitigating factors it considered as well as its “reasons for the sentence.” T.C.A. § 40-35-
210(e). Before the 2005 amendments to the Sentencing Act, both the State and a defendant
could appeal the manner in which a trial court weighed enhancement and mitigating factors
it found to apply to the defendant. T.C.A. § 40-35-401(b)(2) (2004). However, the 2005
amendments deleted as grounds for appeal, a claim that the trial court did not properly weigh
the enhancement and mitigating factors. See 2005 Tenn. Pub. Acts ch. 353, §§ 8, 9.

        As noted above, the defendant’s entire argument rests upon his assertion that “the
weight given [the enhancement and mitigating] factors did not comply with the ‘purposes and
principles’ of the act.” The defendant does not contest that the factors were inappropriately
applied, only that they were improperly weighed. As noted, “[m]ere disagreement with how
the trial court weighted enhancing and mitigating factors is not an adequate basis for
reversing a sentence.” State v. Banks, 271 S.W.3d 90, 146 (Tenn. 2008) (citing Carter, 254
S.W.3d at 345-46). Regardless, our view of the record would reveal no abuse of discretion
on the part of the trial court in setting the sentence length in this case. The court considered
the appropriate principles of sentencing, noted the factors which it found, expressed them
clearly upon the record, and imposed a sentence within the applicable range. The defendant
is entitled to no relief.

                                       CONCLUSION

      Based upon the foregoing, the judgments of conviction and resulting sentences are
affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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