         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 6, 2003

                  STATE OF TENNESSEE v. DARWIN TREECE

                  Direct Appeal from the Circuit Court for McNairy County
                          No. 1547B Jon Kerry Blackwood, Judge



                   No. W2002-02738-CCA-R3-CD - Filed October 15, 2003


The defendant pled guilty to one count of delivering a Schedule II controlled substance
(Hydromorphone). He was sentenced to 50 months to be served with Corrections Management
Corporation, a community-based alternative, after service of 180 days in the county jail. The
defendant appealed the sentence, contending that it was excessive. We hold that the trial court
properly rejected mitigating factor one because drug dealing inherently involves the risk of bodily
injury and that the defendant’s prior criminal behavior justified the sentence imposed. Finding no
error, the judgment is affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE
G. RILEY, JJ., joined.

Gary F. Antrican, District Public Defender, and Rickey W. Griggs, Assistant Public Defender, for
the appellant, Darwin Treece.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

        On June 10, 2002, the McNairy County Grand Jury returned a four-count indictment against
the defendant, Darwin Treece. He was charged with one count of delivering a Schedule II controlled
substance (Hydromorphone), two counts of possessing a Schedule II controlled substance
(Hydromorphone) with intent to deliver, and one count of possessing a Schedule IV controlled
substance (Alprazolam) with intent to deliver. On July 11, 2002, the defendant pled guilty to one
count of delivering a Schedule II controlled substance (a Class C felony), and the other charges were
dismissed.
                                                Facts

         A sentencing hearing was held at which the presentence investigation report was entered and
the trial court heard argument from the defense that two mitigating factors should be applied. The
defendant requested mitigation of his sentence, contending that his conduct neither caused nor
threatened serious bodily injury and that he had accepted responsibility for his actions. The trial
court found that the defendant’s prior history of criminal behavior outweighed his admission of guilt
and rejected the serious bodily injury mitigation factor. The defendant requested that he be given
probation or house arrest. The trial court sentenced the defendant to 50 months to be served with
Corrections Management Corporation, a community-based alternative, after service of 180 days in
the county jail. The defendant filed a timely notice of appeal, claiming that the sentence was
excessive.

                                               Analysis

        A defendant who challenges his or her sentence has the burden of proving that the sentence
imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). When a defendant appeals the
length, range, or manner of service of his or her sentence, it is the duty of this Court to conduct a
de novo review of the record with a presumption the trial court’s determinations are correct. Tenn.
Code Ann. § 40-35-401(d). The presumption of correctness 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999).

        The sentencing range for a standard offender convicted of a Class C felony is not less than
three years nor more than six years. Tenn. Code Ann. § 40-35-112. When both enhancing and
mitigating factors are present, the court must start at the minimum sentence, enhance as appropriate
within the range for the enhancement factors, then reduce the sentence within the range as
appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). We disagree with the
defendant’s contention that the trial court erred in failing to find that his actions neither caused nor
threatened serious bodily injury. The potential for serious bodily injury is inherent in the nature of
drug dealing. State v. Holston, 94 S.W.3d 507, 512 (Tenn. Crim. App. 2002). Thus, mitigating
factor one (neither caused nor threatened serious bodily injury) was properly rejected by the trial
court.

        The trial court found that the defendant’s prior history of criminal behavior outweighed his
admission of guilt, and we agree. The defendant has three prior drug-related convictions, seven
driving while under the influence convictions, two assault convictions, and five other various
convictions. The application of the prior criminal behavior enhancement factor is supported by the
record. The defendant has been convicted of three prior drug offenses, and yet he continues to
offend. The trial court’s sentence of fourteen months above the minimum was not excessive.




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                                   Conclusion

We affirm the judgment of the trial court.




                                              ___________________________________
                                              JOHN EVERETT WILLIAMS, JUDGE




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