            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE               FILED
                             JULY 1997 SESSION
                                                            October 30, 1997

                                                           Cecil W. Crowson
STATE OF TENNESSEE,                  )                    Appellate Court Clerk
                                     )    C.C.A. NO. 01C01-9604-CR-00140
             Appellee,               )
                                     )    Davidson County
v.                                   )
                                     )    Honorable Ann Lacy Johns
ANTHONY DARDEN,                      )
                                     )    (Poss. controlled sub. w/ int. to sell)
             Appellant.              )




For Appellant:                            For Appellee:

John E. Rodgers, Jr.                      Charles W. Burson
Lackey, Rodgers, Price & Snedeker         Attorney General and Reporter
Suite 1230, First American Center
315 Deaderick Street                      Daryl J. Brand
Nashville, TN. 37238-1230                 Assistant Attorney General
                                          Criminal Justice Division
                                          450 James Robertson Parkway
                                          Nashville, TN. 37243

                                          Victor S. Johnson III
                                          District Attorney General
                                          Suite 500,Washington Square Building
                                          222 Second Avenue North
                                          Nashville, TN. 37201

                                          Dan Hamm
                                          Assistant District Attorney General
                                          Suite 500,Washington Square Building
                                          222 Second Avenue North
                                          Nashville, TN. 37201




OPINION FILED:________________

AFFIRMED

WILLIAM M. BARKER, JUDGE

                                    OPINION
         The appellant, Anthony Darden, appeals the sentences he received in the

Criminal Court, Division III, of Davidson County. The appellant pled guilty and was

sentenced on two counts of possession with intent to sell .5 grams or more of a

substance containing cocaine, a Class B felony, and one count of selling less than .5

grams of a substance containing cocaine, a Class C felony.1 The trial court sentenced

the appellant, as a range I standard offender, to serve ten years in the Department of

Correction and to pay the minimum mandatory two thousand ($2000) dollar fine for

each count of possession with intent to sell .5 grams or more of cocaine, and to serve

five years for the selling of less than .5 grams of a substance containing cocaine. The

sentences were ordered to run consecutively for an effective sentence of twenty five

years.

         On appeal, the appellant contends that the trial court erred in its application of

several enhancement factors and in ordering his sentences to run consecutively. After

a review of the record, we find no error and affirm the judgment of the trial court.

         When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)

(1990). The burden of showing that the sentence is improper is upon the appealing

party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. The

presumption of correctness is conditioned upon an 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).

         At the sentencing hearing, the trial court applied the following enhancement

factors to the appellant’s sentences: 1) the appellant’s prior criminal history; 2) the

appellant’s leadership in the commission of a crime involving two or more criminal

actors; 3) the appellant’s lack of hesitation in committing a crime when the risk to


         1
         The a ppellant’s g uilty pleas on th ese co unts ca me p ursuan t to a plea ag reem ent with the State
in which the State agreed to drop counts one and three of the indictment in case no. 94-A-304, charging
the appellant with contributing to the delinquency of a juvenile and simple possession of marijuana.



                                                       2
human life was high; 4) the appellant’s commission of the crime under circumstances

in which the potential for bodily injury to a victim was great; and 5) the appellant’s

commission of felonies while on release by bail. See Tenn. Code Ann. § 40-35-

114(1), (2), (10), (13), and (16) (1990).

       The appellant first contends that the trial court erred in applying enhancement

factor (1). Our review of this issue is limited because the appellant’s presentence

report was not made a part of this record on appeal. The record, however, contains

evidence of the appellant’s criminal history as set forth in the Community Corrections

Assessment Plan, submitted as Exhibit I. This plan details the appellant’s past

convictions for criminal trespass, gambling, three counts of assault, and two counts of

evading arrest. Additionally, the appellant testified at the sentencing hearing that he

has made his living from the sale of drugs. Specifically, the appellant admits that he

bought an automobile from money he earned through past drug deals. From this

evidence, we find that the trial court properly applied enhancement factor (1) as to the

appellant’s prior criminal history.

       The appellant next contends that the trial court erred in using enhancement

factor (2) concerning the appellant’s role as a leader in the commission of an offense

involving two or more criminal actors. The trial court applied this enhancer to the

appellant’s drug offense committed on December 17, 1992, listed as count two in case

no. 94-A-304. We find evidence in the record that the appellant relied on a juvenile to

assist and protect him during this particular drug offense and other past drug deals.

That evidence is sufficient to support the trial court’s finding that the appellant was a

leader in the commission of a criminal offense involving two or more criminal actors.

Therefore, the application of enhancement factor (2) was not error.

       The appellant next requests this Court to review the trial court’s application of

enhancement factors (10) and (16) to his three drug offenses. Enhancement factor

(10) applies in cases where the defendant had no hesitation about committing a crime

when the risk to human life was high. See Tenn. Code Ann. § 40-35-114 (10).

                                             3
Similarly, enhancer (16) applies when the crime was committed under circumstances

under which the potential for bodily injury to a victim was great. See Tenn. Code Ann.

§ 40-35-114 (16). In the appellant’s case, the trial court apparently applied enhancers

(10) and (16) based upon “the nature and character” of cocaine. There is no evidence

that the appellant’s drug offenses involved any risk or danger of injury other than the

basic nature of cocaine itself. Although this Court considers the possession and

selling of cocaine to be abhorrent, we are unable to apply enhancement factors (10)

and (16) to these offenses without additional evidence to support a finding that the

offenses involved specific risks of danger to human life.

       This Court has previously held that “the nature and character” of cocaine alone

is not sufficient to warrant the application of enhancers (10) and (16). See State v.

Keel, 882 S.W.2d 410, 419-21 (Tenn. Crim. App. 1994), per. app. denied (Tenn.

1994); State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993), per. app.

denied (Tenn. 1993); State v. Timmy Ricker, No. 269, (Tenn. Crim. App. at Knoxville,

Jan. 4, 1989), per. app. denied (Tenn. 1989). Following these cases, this Court

recognizes that the Tennessee General Assembly has already taken into

consideration the nature and effect of cocaine when it made cocaine a Schedule II

drug and classified cocaine offenses as Class B and C felonies. See State v. Edgar

Dean Fox, No. 01-C-01-9402-CC0050 (Tenn. Crim. App., at Nashville, May 18, 1995).

Consequently, the trial court should not have applied enhancement factors (10) and

(16) to the appellant’s cocaine offenses.

       The trial court also applied enhancement factor (13) to the appellant’s

sentences. The trial court found that the appellant committed the September 1993

cocaine offense, listed in case no. 94-A-431, and the June 1994 cocaine offense,

listed in case no. 95-A-135, while he was on release by bail. The record on appeal

supports the trial court’s findings in that regard and, therefore, the trial court properly

used factor (13) to enhance the appellant’s sentence for the two post-bail counts.



                                              4
         Although we find that the trial court incorrectly applied enhancement factors

(10) and (16), given the relative strength of the three remaining appropriate

enhancement factors, we affirm the length of the appellant’s sentences.

         The appellant next contends that the trial court erred in ordering his three

sentences to run consecutively. The trial court found that the drug offenses charged

in indictments 95-A-135 and 94-A-431 were committed while the appellant was out on

bail from previous drug charges, listed in case no. 94-A-304. Furthermore, the drug

offense charged in case no. 95-A-135 was committed while the appellant was out on

bail from the drug charge in case no. 94-A-431.2

         The issue of consecutive sentencing is governed by Tennessee Code

Annotated section 40-20-111(b), which states:

         In any case in which a defendant commits a felony while such defendant
         was released on bail in accordance with the provisions of chapter 11,
         part 1 of this title, and the defendant is convicted of both such offenses,
         the trial judge shall not have discretion as to whether the sentences shall
         run concurrently or cumulatively, but shall order that such sentences be
         served cumulatively.

         This court has recently determined that this statute applies equally in cases

where defendants are convicted by juries of pre-bail and post-bail offenses and in

cases where defendants pled guilty to such offenses. See State v. Kevin Foster, No.

03C01-9510-CC-00337 (Tenn. Crim. App. At Knoxville, June 27, 1996).

         The trial court did not err in ordering consecutive sentences. The statute

mandates them. The appellant’s issue as to consecutive sentencing is without merit.

         Although not raised by either party on appeal, there remains a final issue

concerning the order in which the appellant must serve his consecutive sentences. At

the sentencing hearing, the trial court ordered the ten-year sentence in case no. 94-A-



         2
          The trial co urt found that the ap pellant wa s originally arres ted and g iven bail on tw o drug c ounts
and a count of contributing to the delinquency of a juvenile, listed in 94-A-304. While out on bail, the
appellant was arrested for the possession with intent to deliver twenty-six grams of cocaine, listed in 94-
A-431. The appellant was again released on bail and was later arrested for selling less than .5 grams of
cocaine, listed in 95-A-135. The appellant pled guilty to each of the post-bail counts in indictments 95-A-
135 and 94-A-431, and he pled guilty to the pre-bail count of possession with intent to sell .5 grams or
mor e of coc aine con tained in ca se no. 94 -A-304 .

                                                        5
304 to run consecutive to the ten-year sentence in 94-A-431 and the five-year

sentence in 95-A-135. Additionally, the trial court ordered the five-year sentence in

case no. 95-A-135 to run consecutive to the two ten-year sentences in 94-A-304 and

94-A-431. Based upon our review of the record, we find that the appellant must first

serve the ten-year sentence in case no. 94-A-304. This sentence covers the first pre-

bail offense for which the appellant was charged and convicted in this case. The ten-

year sentence in case no. 94-A-431 must run consecutive to the ten-year sentence in

94-A-304. Furthermore, we find that the trial court properly ordered the five-year

sentence to run consecutive to the two ten-year sentences. The appellant committed

the drug offense in 95-A-135, underlying the five-year sentence, while he was out on

bail for the two previous drug offenses in 94-A-304 and 94-A-431.

      Based upon the foregoing, the judgment of the trial court is affirmed. Upon

remand, the trial court shall review the judgments to ensure that the appellant serves

his consecutive sentences in the proper chronological order.




                                         _______________________________
                                         WILLIAM M. BARKER, JUDGE




CONCUR:

____________________________
JOHN H. PEAY, Judge



____________________________
JERRY L. SMITH, Judge




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