         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 16, 2005

        STATE OF TENNESSEE v. CHRISTOPHER LYNN HOOSIER

                    Appeal from the Circuit Court for Montgomery County
                            No. 39924   John H. Gasaway, Judge



                  No. M2004-03054-CCA-R3-CD - Filed September 13, 2005


A Montgomery County Circuit Court jury convicted the defendant, Christopher Lynn Hoosier, of
possession with the intent to sell one-half gram or more of cocaine, a Class B felony, simple
possession of marijuana, a Class A misdemeanor, and possession of drug paraphernalia, a Class A
misdemeanor, and the trial court sentenced him as a Range II, multiple offender to concurrent terms
of twenty years for the cocaine conviction and eleven months and twenty-nine days for each of the
misdemeanor convictions. The defendant appeals, claiming the trial court erred in sentencing him
by finding enhancement factors that were not submitted to a jury or proven beyond a reasonable
doubt and by failing to apply a factor in mitigation. We affirm the judgments of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which THOMAS T. WOODA LL, J., joined.
ROBERT W. WEDEMEYER , J., not participating.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Christopher Lynn Hoosier.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr. and Arthur F. Bieber,
Assistant District Attorneys General, for the appellant, State of Tennessee.

                                             OPINION

       At trial, the evidence showed that officers of the Clarksville Police Department’s Major
Crimes Unit executed a search warrant at the defendant’s home, where he lived with his girlfriend
and their three children. The search revealed the presence of 43.6 ounces of crack cocaine, a small
amount of marijuana, drug paraphernalia, $8025 in cash, handguns, and electronic scales.

        At the sentencing hearing, the defendant testified that he was thirty-three years old and that
he had three minor children. He said he did not use the weapons police found in his home for
protecting his drugs. He said that his work history was sporadic, that his last full-time job was at
State Stove, where he worked for five years, and that after he quit his job at State Stove, he worked
with his uncle on a tobacco farm. The defendant explained that he was selling drugs in order to
support his family. He said he was also using drugs.

       On cross-examination, the defendant said the weapons found at his home were not his. He
admitted, however, that the weapons were found “in the utility room with the crack cocaine.” He
acknowledged that the $8000 the police found at his home was his. He said that during the ten years
before his arrest, he had no disability which would have prevented him from working.

        Following the defendant’s testimony, the state submitted the defendant’s presentence report
into evidence, which showed the defendant had three prior felony convictions and sixteen prior
misdemeanor convictions. The trial court found the defendant to be a Range II, multiple offender
based upon his three prior felony convictions. Considering enhancement of the defendant’s sentence
within Range II, the trial court found that the defendant had a previous history of criminal
convictions in addition to those necessary to establish the appropriate range, that the defendant had
a previous history of unwillingness to comply with conditions involving release into the community,
and that the defendant committed the present offenses while on probation from a prior felony
conviction. See T.C.A. § 40-35-114(2), (9), (14)(C) (2003).1 The trial court then enhanced the
defendant’s sentence from twelve years, the minimum within the range, to twenty years, the
maximum. The trial court found no applicable mitigating factors.

                                        I. EXCESSIVE SENTENCE

        The defendant contends that the trial court erred in enhancing his sentence under the rule
announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and in failing to apply
as a factor in mitigation the fact that he sold drugs to provide for his family. See T.C.A. § 40-35-
113(7). The state contends that the defendant has waived his Blakely argument by failing to object
at the sentencing hearing on Sixth Amendment grounds to the trial court’s enhancement of his
sentence, that, in any event, Tennessee’s sentencing scheme does not violate the Sixth Amendment
right to trial by jury, and that the trial court did not err in failing to apply mitigating factor (7). We
agree with the state.

        Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. T.C.A. § 40-35-401(d) (2003). As the Sentencing Commission
Comments to this section note, the burden is now on the appealing party to show that the sentencing
is improper. This means that if the trial court followed the statutory sentencing procedure, made
findings of fact that are adequately supported in the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,



         1
           W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-114,
-210, and -4 01. See 2005 Tenn. Pub. Acts ch. 353, §§ 5 , 6, 8. However, the amended co de sections are inap plicab le
to the defendant’s appeal.

                                                         -2-
we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        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 this regard, for the purpose of meaningful appellate review,

                the trial court must place on the record its reasons for arriving at the
                final sentencing decision, identify the mitigating and enhancement
                factors found, state the specific facts supporting each enhancement
                factor found, and articulate how the mitigating and enhancement
                factors have been evaluated and balanced in determining the sentence.
                T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

        Also, in conducting a de novo review, we must consider (1) the evidence, if any, received at
the trial and 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,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210
(2003); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

        The range of punishment for a Range II, Class B felon is twelve to twenty years. T.C.A. §
40-35-112(b)(2). Applicable to this case, unless there are enhancement factors present, the
presumptive sentence to be imposed is the minimum in the range for a Class B felony. T.C.A. §
40-35-210(c) (2003). Our sentencing act provides that procedurally, the trial court is to increase the
sentence within the range based on the existence of enhancement factors and, then, reduce the
sentence as appropriate for any mitigating factors. T.C.A. § 40-35-210(d), (e) (2003). The weight
to be afforded an existing factor is left to the trial court’s discretion so long as it complies with the
purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the
record. T.C.A. § 40-35-210 (2003), Sentencing Commission Comments; Moss, 727 S.W.2d at 237;
see Ashby, 823 S.W.2d at 169.


         In Blakely, the United States Supreme Court held that other than prior convictions, any facts
not reflected in the jury’s verdict and used to increase a defendant’s punishment above the
presumptive sentence must be admitted by the defendant or found by the jury beyond a reasonable
doubt. 542 U.S. at __, 124 S. Ct. at 2537. However, the Tennessee Supreme Court has held that
failure to object on Sixth Amendment grounds in the trial court waives the issue on appeal and that,
in any event, Tennessee’s sentencing procedures do not violate the Sixth Amendment right to trial
by jury as interpreted by the Supreme Court in Blakely and United States v. Booker, __ U.S. __, 125


                                                  -3-
S. Ct. 738 (2005). See State v. Gomez, 163 S.W.3d 632 (Tenn. 2005). The record reflects that the
defendant failed to object at the sentencing hearing on Sixth Amendment grounds to the trial court’s
enhancement of his sentence. Accordingly, the defendant has waived this issue. See T.R.A.P. 36(a).

        Concerning mitigation, Tennessee Code Annotated section 40-35-113(7) provides as a
mitigating factor that “[t]he defendant was motivated by a desire to provide necessities for the
defendant’s family . . . .” The defendant seeks a reduction in his sentence by claiming that he was
trafficking in drugs to provide for his family. However, the defendant testified at the sentencing
hearing that he is not disabled and has obtained gainful employment in the past. The trial court did
not err in failing to apply this factor.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE




                                                -4-
