         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 7, 2006

         STATE OF TENNESSEE v. ANTHONY DEWAYNE ALSTON

                       Appeal from the Circuit Court for Tipton County
                          No. 5174 Joseph H. Walker, III, Judge



                  No. W2006-00542-CCA-R3-CD - Filed November 29, 2006


The appellant, Anthony Alston, was indicted with possession of more than .5 grams of cocaine with
the intent to deliver and felony possession of cocaine. The appellant pled guilty to the charges, but
agreed to allow the trial court to determine the length and manner of service of the sentence. After
a sentencing hearing, the trial court merged the two convictions and imposed a sentence of nine years
for possession with intent to deliver more than .5 grams of cocaine. Further, the trial court ordered
the nine-year sentence to run consecutively to a sentence for which the appellant was on Community
Corrections at the time of the current offense. The appellant appeals, arguing that the trial court
improperly enhanced his sentence. For the following reasons, we affirm the judgment of the trial
court.

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

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

Periann Houghton, Assistant Public Defender, Covington, Tennessee, for the appellant, Anthony
Dewayne Alston.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Elizabeth Rice, District Attorney General and Walt Freeland, Assistant District Attorney General,
for the appellee, State of Tennessee.



                                            OPINION

        On November 7, 2005, the Tipton County Grand Jury returned a multi-count indictment
against the appellant, charging him with possession of more than .5 grams of cocaine with the intent
to deliver and felony possession of cocaine. On December 2, 2005, the appellant pled guilty to the
charges and agreed to allow the trial court to determine the length and manner of service of the
sentence at a sentencing hearing.


        According to the presentence report, the facts underlying the offense were relayed in an
affidavit of complaint that was executed by Deputy Brandon Williams of the Tipton County Sheriff’s
Department. In the complaint, Officer Williams alleged that:

       On 3-2-05 at approx. 1809 hrs. I stopped a blue Kia bearing tag RDU083 on Hatchie
       St. @ Simonton St. for the driver not wearing his seatbelt. Upon contact with the
       vehicle the driver was identified as Christopher Williams. While speaking with
       Williams I smelled the odor of burnt marijuana coming from the vehicle. Williams
       advised me that the passenger, Anthony Alston and him just smoked a marijuana
       cigarette. Williams gave consent to search the vehicle. As Alston was exiting the
       vehicle I observed him drop a (5) five dollar bill. As I picked the bill up I observed
       a white powder substance inside the bill. Alston advised that it was cocaine and he
       claimed possession of the substance. Alston was arrested and transported to jail.
       Prior to transport I asked Alston if he had anymore [sic] narcotics on his person [H]e
       advised no. Upon arrival at the jail officer D. Keeton striped [sic] searched Alston
       and revealed a bag of white rocky substance believed to be rock cocaine in his
       rectum.

        At the sentencing hearing, the appellant testified that he was incarcerated after he was
arrested for the current charges and was also serving the remainder of a four-year sentence from
another case. The appellant stated that he was eligible for parole on the other case in 2007. The
appellant admitted that a majority of his prior convictions were drug related. The appellant also
admitted to the court that he has a drug habit.

        The appellant corroborated the facts as relayed in the affidavit, testifying that he and
Christopher Williams were smoking marijuana when they were pulled over by the police. Further,
the appellant admitted that when he stepped out of the car he dropped a five dollar bill with cocaine
on it. The appellant told the court that he planned on sniffing or snorting the cocaine and that he had
been addicted to drugs since he was thirteen or fourteen years old. The appellant informed the trial
court that he was in a drug program in jail. The appellant also informed the trial court that he had
over one gram of cocaine stuffed in his rectum when he was arrested in order to hide the cocaine
from the police.

        At the conclusion of the sentencing hearing, the trial court determined that enhancement
factors (1) and (13) applied. See Tenn. Code Ann. § 40-35-114. The trial court also determined that
the appellant’s sentence should be mitigated because the appellant’s conduct neither caused nor
threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1). As a result, the trial court
merged the appellant’s two convictions into a single conviction for possession of more than .5 grams



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of cocaine with the intent to deliver and sentenced the appellant to nine years in incarceration. The
appellant ordered the sentence to be served consecutively to the sentence he was already serving.
       The appellant filed a timely notice of appeal in order to challenge his sentence.

                                                        Analysis

        The appellant challenges his sentence on appeal. Specifically, the appellant argues that “the
court placed too much weight on the enhancements and not enough on the mitigation” and that there
were mitigation factors, such as age, that the trial court gave no weight in making a sentencing
determination. The State counters that the trial court properly sentenced the appellant.

         “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action
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). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169. In making its sentencing
determination, the trial court, at the conclusion of the sentencing hearing, determines the range of
sentence and then determines the specific sentence and the propriety of sentencing alternatives by
considering: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information provided by
the administrative office of the courts as to sentencing practices for similar offenses in Tennessee;
and (7) any statements the defendant wishes to make in the defendant’s behalf about sentencing.
Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v. Williams, 920 S.W.2d 247, 258 (Tenn.
Crim. App. 1995). In balancing these concerns, a trial court should place on the record, either orally
or in writing, what enhancement or mitigating factors were considered, if any, as well as the reasons
for the sentence, in order to ensure fair and consistent sentencing. Tenn. Code Ann. § 40-35-210(e).1


         1
          W e note that the Tennessee Supreme Court has determined that despite the ability of trial judges to set
sentences above the presumptive sentence based on the finding of enhancement factors neither found by a jury or
admitted by a defendant, Tennessee’s sentencing structure does not violate the Sixth Amendment and does not conflict
with the holdings of Blakely v. W ashington, 542 U.S. 296 (2004), United States v. Booker, 543 U.S. 220 (2005), or
United States v. FanFan, the case consolidated with Booker, because “the Reform Act [of Tennessee] authorizes a
discretionary, non-mandatory sentencing procedure and requires trial judges to consider the principles of sentencing and
to engage in a qualitative analysis of enhancement and mitigating factors . . . all of which serve to guide trial judges in
                                                                                                            (continued...)

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No particular weight for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d
116, 125 (Tenn. Crim. App. 1995). The weight given to each factor is left to the discretion of the
trial court as long as it comports with the sentencing principles and purposes of our code and as long
as its findings are supported by the record. Id.

       Turning more specifically to the facts of this case, the appellant was convicted of possession
of more than .5 grams of cocaine with the intent to deliver, a Class B felony. Tenn. Code Ann. § 39-
17-417. For felonies, the starting point for sentencing determinations is the minimum of the range.
See Tenn. Code Ann. § 40-35-210(c).2 The appellant is a Range I standard offender; thus, for
possession of cocaine with the intent to deliver, eight years is the minimum sentence and twelve
years the maximum sentence against which the trial court was to balance any mitigating and
enhancement factors must be considered. Tenn. Code Ann. § 40-35-112(a)(2).

         The trial court made the following findings at the sentencing hearing:

                 The Court recalls the testimony when the defendant entered a plea of guilty
         to the B felony of possession of a Schedule II controlled substance with intent to
         deliver five-tenths grams or more, reviewed the pre-sentence report, finds that the
         defendant should be sentenced as a standard offender.

                 Under T.C.A. 40-35-114, the Court finds enhancing factor number one
         applies; that is, the defendant has a previous history of criminal convictions or
         criminal behavior in addition to what’s necessary to establish the appropriate range;
         and that factor number thirteen applies, at the time the felony was committed the
         defendant was on the classification of community corrections.

                The Court finds that under T.C.A. 40-35-113 that mitigating factor number
         one applies; that is, that it neither caused nor threatened serious bodily injury.

                The Court finds it is a proper case to sentence defendant to an enhanced
         sentence of nine years as a standard offender. The Court further finds that under
         T.C.A. 40-28-123 that while a person convicted of a felony while released on a
         program where he enjoys the privilege of supervised release into the community that



         1
          (...continued)
exercising their discretion to select an appropriate sentence within the range set by the Legislature.” State v. Gomez,
163 S.W .3d 632, 661 (Tenn. 2005). Effective July 1, 2005, prior to the appellant’s sentencing hearing herein, the
Tennessee General Assembly amended the sentencing act to reflect the advisory nature of enhancement factors.


         2
          The Tennessee General Assembly amended this statute effective July 1, 2005, to reflect that the presumptive
sentence is the minimum sentence in the range, regardless of the class of the felony. Because the appellant in the case
herein was sentenced after July 1, 2005, the amended statute applies.

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        it is a consecutive sentence to the sentence he was serving; therefore, the Court
        sentences the defendant consecutively to Docket No. 4707.

                The defendant having been tried on release status without success, he’s
        indicated he’s in a drug treatment program under his current placement, the Court
        finds that it would not be a proper case in which to suspend or place him back on
        alternative sentencing.

        Thus, the trial court determined that enhancement factors (1) and (13) applied to the
appellant. Tenn. Code Ann. § 40-35-114(1), -114(13). Further, the trial court determined that
mitigating factor (1) applied to the appellant. Tenn. Code Ann. § 40-35-113(1). After a review of
the record, we determine that the proof supports the trial court’s application of the preceding
enhancement factors. The appellant did not dispute his prior criminal record; in fact, the appellant
admitted that the majority of his prior convictions stemmed from illegal drug use and activity.
Further, the appellant admitted that he was on Community Corrections at the time he committed the
offense herein and that, as a result, he was currently serving the remainder of a four-year sentence.
The appellant argues that his age should have been considered as a mitigating factor. At the time
of the offenses, the appellant was twenty-five years old and had previous convictions for escape,
possession of cocaine, casual exchange, possession of more than .5 grams of cocaine, tampering with
evidence, two convictions for possession of marijuana, simple assault, and disorderly conduct. This
Court has previously upheld a trial court’s refusal to apply age as a mitigation factor where a
defendant was well-acquainted with the criminal justice system and the consequences of disobeying
the law. See State v. Turner, 41 S.W.3d 663, 673-74 (Tenn. Crim. App. 2000). The appellant also
argues that the trial court should have considered his drug addiction as a justification for his conduct,
but he fails to show how this factor applies to his case. There is no proof in the record that the
appellant previously sought treatment for his addiction. Further, the voluntary use of intoxicants
cannot be considered a mitigating factor. Tenn. Code Ann. § 40-35-113(8). The trial court instead
chose to mitigate because the appellant’s actions neither caused nor threatened serious bodily injury.
However, “the weight afforded mitigating or enhancement factors derives from balancing relative
degrees of culpability within the totality of the circumstances . . . . In other words, the weight that
is given to any existing factors is left to the trial court’s discretion so long as . . . its findings are
supported by the record.” State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993). The
trial court’s sentencing determination is supported by the record. This issue is without merit.



                                              Conclusion

        For the foregoing reasons, the judgment of the trial court is affirmed.




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___________________________________
JERRY L. SMITH, JUDGE




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