        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 13, 2016

             STATE OF TENNESSEE v. ROBERT C. CLANTON

                 Appeal from the Circuit Court for Bedford County
                    No. 18063 Forest A. Durard, Jr., Judge
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             No. M2015-02438-CCA-R3-CD – Filed September 21, 2016
                    ___________________________________


Defendant, Robert Carlyle Clanton, was convicted by a Bedford County jury of ten drug-
related offenses for the sale of methamphetamine to a confidential informant. The trial
court imposed a total effective sentence of twenty-three years and six months. On appeal,
Defendant‟s sole issue is that the trial court imposed an excessively lengthy sentence.
Upon our review of the record, we affirm the judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Donna Orr Hargrove, District Public Defender; James R. Tucker, Jr. (on appeal) and
Andrew Jackson Dearing III (at trial), Assistant Public Defenders, for the appellant,
Robert C. Clanton.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                          Factual and Procedural Background

       In May 2015, a Bedford County Grand Jury returned an eleven-count indictment
charging Defendant with conspiracy to sell or deliver less than .5 grams of a Schedule II
controlled substance, a Class D felony; sale and delivery of less than .5 grams of a
Schedule II controlled substance, Class C felonies; sale and delivery of more than .5
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grams of a Schedule II controlled substance, Class B felonies; possession of more than .5
grams of a Schedule II controlled substance with the intent to sell and deliver, Class B
felonies; possession of more than .5 grams of a Schedule II controlled substance with the
intent to sell and deliver in a school zone, Class A felonies; and two counts of possession
of drug paraphernalia, Class A misdemeanors. See T.C.A. § 39-12-107(c); 39-17-417(a),
(c); 39-17-425(a); 39-17-432(b). Defendant was tried before a jury and convicted in
August 2015. Because Defendant is not challenging the sufficiency of the evidence, we
will only briefly summarize the evidence adduced at trial.

       In July of 2014, officers with the 17th Judicial District Drug Task Force were
investigating Defendant, who also went by the aliases Kyle Clanton, Skinny, and Slim.
They were assisted by a confidential informant named Brian Serrett, who contacted the
Drug Task Force after being released from jail on an unrelated domestic violence charge.
Mr. Serrett was searched before and after each transaction, wore a recording device
during each transaction, and conducted each transaction under constant police
surveillance. Mr. Serrett was paid for each controlled buy in which he participated.
Audio recordings of Mr. Serrett‟s phone calls with Defendant arranging each transaction
as well as audio recordings of the actual transactions were entered into evidence.

       On July 23, 2014, Mr. Serrett went to the mobile home of Michael Bryan to buy a
morphine pill. During the course of that transaction, they discussed the purchase of
methamphetamine, also known as “crystal meth.” A subsequent controlled buy was set
up for $65 worth of crystal meth. During that transaction, Mr. Bryan took the money
from Mr. Serrett and left his home, telling Mr. Serrett that he was going to meet his
supplier, Skinny. Mr. Bryan drove to a nearby gas station where he briefly met with
Defendant. Mr. Bryan then returned to the mobile home and handed Mr. Serrett a small
plastic bag containing a crystalline substance, later determined to be .25 grams of
methamphetamine. This incident formed the basis of Count 1 of the indictment—
conspiracy to sell or deliver less than .5 grams of a Schedule II controlled substance.

       On July 30, 2014, Mr. Serrett and the Drug Task Force set up a controlled buy of
methamphetamine directly from Defendant. Mr. Serrett told the officers that earlier that
day, he had been introduced to Defendant by Mr. Bryan and that Defendant had “fronted”
him a half gram of crystal meth, meaning that payment was expected at a later time. Mr.
Serrett, at the direction of the Drug Task Force, called Defendant and told him that he had
the money and also wanted to purchase an additional half gram. Mr. Serrett got into the
passenger side of a blue PT Cruiser driven by Defendant, who then drove to a mechanic
shop belonging to a man who had been previously convicted of manufacturing
methamphetamine. Defendant and Mr. Serrett went into the shop to conduct the
transaction. No one else was in the shop. After Mr. Serrett gave Defendant the money,
Defendant went into a room and returned a few minutes later with the drugs. Mr. Serrett
then left the shop on foot and was picked up by the Drug Task Force. Mr. Serrett turned
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over the drug he purchased from Defendant, which was determined to be .33 grams of
methamphetamine. Mr. Serrett admitted on cross-examination that he did not turn over
the fronted crystal meth to the Drug Task Force but gave it to a woman in exchange for a
morphine pill. This incident formed the basis of Counts 2 and 3 of the indictment—sale
and delivery of less than .5 grams of a Schedule II controlled substance.

        Later that same day, Mr. Serrett and the Drug Task Force arranged a second
purchase from Defendant for $300 worth of crystal meth. Mr. Serrett was again picked
up by a blue PT Cruiser driven by Defendant. While Defendant drove around the block,
he and Mr. Serrett exchanged $300 for an “8 ball,” or approximately 3 grams of crystal
meth. Defendant dropped off Mr. Serrett, who then proceeded to meet with the Drug
Task Force. Other officers continued to follow Defendant‟s vehicle for a while before
initiating a traffic stop. Searches of Defendant‟s person and vehicle uncovered 1.91
grams of methamphetamine, $340 in cash (including the previously recorded buy
money), a digital scale, plastic baggies, and some Xanax tablets. Defendant was
Mirandized1 and told that the Drug Task Force was interested in his methamphetamine
suppliers. Defendant indicated he was willing to cooperate with the Drug Task Force.
Defendant admitted that he sold methamphetamine as his main source of income and
named several of his suppliers. The officers released Defendant with instructions to stay
in contact with them, but Defendant never contacted or assisted the Drug Task Force.
This incident formed the basis of Counts 4 through 8—sale and delivery of more than .5
grams of a Schedule II controlled substance, possession of more than .5 grams of a
Schedule II controlled substance to sell and deliver, and possession of drug paraphernalia.

       On September 2, 2014, Mr. Serrett again informed the Drug Task Force that he
had been in contact with Defendant. At the direction of the Drug Task Force, Mr. Serrett
arranged to buy $100 of methamphetamine from Defendant. Defendant indicated to Mr.
Serrett that he wanted guns in exchange for the drugs, and Mr. Serrett led Defendant to
believe that he could acquire some. At the prearranged meeting location, Defendant
picked up Mr. Serrett in a maroon Jeep Grand Cherokee and, at Defendant‟s suggestion,
drove to the mobile home park where Mr. Serrett lived. The mobile home park was
located less than 300 feet from the property of Learning Way Elementary School. Mr.
Serrett gave Defendant the $100 of buy money, then went into a neighboring mobile
home on the pretense of inquiring about the guns. Mr. Serrett returned to Defendant‟s
vehicle, told Defendant that the neighbor with the guns was not home, and waited while
Defendant weighed out some crystal meth on a set of digital scales. The Drug Task
Force then had an officer with the local sheriff‟s department approach Defendant to arrest
him on outstanding warrants. As the officer approached Defendant‟s vehicle, Defendant
threw several bags containing a white, crystalline substance out of the window. After
Defendant was arrested, the bags were recovered and were determined to contain a total

      1
          See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
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of 2.93 grams of methamphetamine. Defendant was also found to be in possession of
over $100 in currency (including the previously recorded buy money), a digital scale, and
a knife. This incident formed the basis of Counts 9 through 11—possession of more than
.5 grams of a Schedule II controlled substance for sale and delivery in a school zone and
possession of drug paraphernalia.

       After hearing the proof, the jury convicted Defendant as charged on all counts
except for Count 1, conspiracy to sell or deliver a controlled substance, upon which the
jury could not reach a verdict. The trial court declared a mistrial on that count and the
State subsequently dismissed it. The trial court merged Count 3, delivery of less than .5
grams of a Schedule II controlled substance, with Count 2, sale of less than .5 grams of a
Schedule II controlled substance; Count 5, delivery of more than .5 grams of a Schedule
II controlled substance, with Count 4, sale of more than .5 grams of a Schedule II
controlled substance; Count 7, possession of more than .5 grams of a Schedule II
controlled substance for delivery, with Count 6, possession of more than .5 grams of a
Schedule II controlled substance for sale; and Count 10, possession of more than .5 grams
of a Schedule II controlled substance for delivery in a school zone, with Count 9,
possession of more than .5 grams of a Schedule II controlled substance for sale in a
school zone.

       At the sentencing hearing, the State entered into evidence the presentence report
which showed that Defendant had two prior convictions for driving under the influence
and one for evading arrest as well as a ticket for a seatbelt violation. The State then
called Director Timothy Lane of the 17th Judicial District Drug Task Force to testify
about the drug activity within the district, particularly with regards to methamphetamine.
Director Lane testified that incarceration provides an effective deterrent both to those
convicted of selling methamphetamine and those considering selling it.

       Defendant testified on his own behalf. Defendant testified that he had been
addicted to methamphetamine for approximately two years. Defendant stated that he
began using to deal with his mother‟s suicide and that his use increased when he had
marital troubles and after his young cousin committed suicide. Because of his addiction,
Defendant lost his job as a truck driver and stopped spending time with his children.
Defendant testified that while using, he would often go twenty or thirty days without
sleeping and that his memory of that time would blur together. Defendant testified that
he was willing participate in a long-term drug rehabilitation program. Defendant
admitted that what he did was wrong and stated that he felt awful about it. On cross-
examination, Defendant initially stated that he could not remember the names of his
suppliers before admitting that he simply did not want to give up their names.

      Defendant also called three witnesses to testify on his behalf: his father, Robert E.
Clanton, Jr.; Jay Pope, the pastor of Lighthouse Church and director of Fresh Start
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Ministry; and Amy Star Wilson, Defendant‟s common law wife. Mr. Clanton testified
that he had spoken with Defendant numerous times since Defendant was incarcerated and
that he believed that the “old Kyle” was back. Mr. Clanton asked the trial court to show
mercy and to give Defendant the minimum sentence. Mr. Pope testified that he had
spoken to and corresponded with Defendant and would be willing to admit Defendant
into his rehabilitation program upon Defendant‟s release. Ms. Wilson testified that she
and Defendant have two children together and asked the trial court for leniency.

       The trial court found that Defendant was a Range I offender. The trial court found
that Defendant had a previous history of convictions or criminal behavior in addition to
those necessary to establish the range. The trial court did not find any mitigating factors
to exist. The trial court imposed a sentence of five years for merged Counts 2 and 3,
eleven years for merged Counts 4 and 5, twelve years for merged Counts 6 and 7, eleven
months and twenty-nine days for both Counts 8 and 11, and twenty-three years and six
months for merged Counts 9 and 10. The trial court ordered that the sentences be served
concurrently, for a total effective sentence of twenty-three years and six months.

       After the trial court denied his motion for a new trial, Defendant filed a timely
notice of appeal.

                                         Analysis

       When an accused challenges the length or manner of service of a sentence, this
Court will review the trial court‟s decision under an abuse of discretion standard with a
presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012);
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). This Court will uphold the trial court‟s
sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different
result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the
sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sent‟g
Comm‟n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        In imposing a sentence, the trial court must consider the following factors: (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 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 statement by the defendant in his
own behalf. T.C.A. § 40-35-210(b). “[A] trial court is free to select any sentence within
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the applicable range so long as the length of the sentence is „consistent with the purposes
and principles of [the Sentencing Act].‟” Carter, 254 S.W.3d at 343 (quoting T.C.A. §
40-35-210(d)). The principles of sentencing provide that the sentence should be no
greater than that deserved for the offense committed and should be the least severe
measure necessary to achieve the purposes for which the sentence is imposed. See
T.C.A. § 40-35-103(2), (4).

       To provide meaningful appellate review, the trial court must state on the record its
reasons for the sentence chosen, including the mitigating and enhancement factors it
considered. T.C.A. § 40-35-210(e). A non-exclusive list of mitigating and enhancement
factors are provided in Tennessee Code Annotated sections 40-35-113 and -114. The
weighing of both mitigating and enhancement factors is left to the trial court‟s sound
discretion, and a trial court‟s misapplication of a mitigating or enhancement factor will
not remove the presumption of reasonableness from its sentencing determination. Bise,
380 S.W.3d at 709.

       Defendant was convicted of one Class A felony, two Class B felonies, one Class C
felony, and two Class A misdemeanors. The trial court carefully considered the evidence
presented at trial and at the sentencing hearing. The trial court found one enhancement
factor applied—that Defendant had a history of criminal behavior or convictions in
addition to those necessary to establish his range. See T.C.A. § 40-35-114(1). The trial
court found that no mitigating factors applied, or if they did, gave them very little weight.
The trial court chose not to run the sentences consecutively. The trial court imposed
within-range sentences for each conviction, and the record amply supports the trial
court‟s sentencing decision. Defendant is not entitled to relief.

                                        Conclusion

       Based on the foregoing, we affirm the judgment of the trial court.


                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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