        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 23, 2012

           STATE OF TENNESSEE v. LATROY LEE ROBERTSON

                Appeal from the Criminal Court for Davidson County
               Nos. 2006-C-2088, 2007-A-794    Steve R. Dozier, Judge




                No. M2011-00424-CCA-R3-CD - Filed March 15, 2012


In this delayed appeal, the defendant contends that the trial court erred by imposing a fully-
incarcerative sentence of 12 years following his pleas of guilty to three counts of the sale of
.5 grams or more of cocaine and three counts of the sale of 26 grams or more of cocaine.
Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and J EFFREY S. B IVINS, JJ., joined.

William E. Griffith (on appeal); and Thomas A. Longaberger (at plea and sentencing),
Nashville, Tennessee, for the appellant, Latroy Lee Robertson.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Pamela Sue Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                On August 16, 2007, the defendant entered pleas of guilty to three counts of
the sale of .5 grams or more of cocaine and three counts of the sale of 26 grams or more of
cocaine. According to the facts as summarized by the State during the plea submission
hearing, the defendant sold varying amounts of crack cocaine to a confidential informant on
September 12, September 18, October 12, October 19, November 3, and November 7, 2006.
Under the terms of the plea agreement, the State agreed to concurrent service of the sentences
with the trial court to set the length of the sentence for each conviction between ten and 12
years and determine the manner of service of the total effective sentence. The agreement
also provided that the trial court would determine whether the defendant would serve a two-
year sentence for a probation violation concurrently with or consecutively to the 12-year
sentence imposed in this case.

              At the sentencing hearing, Metropolitan Nashville Police Department Officer
Yannick Deslauriers recounted each of the defendant’s cocaine sales in detail. Officer
Deslauriers testified that officers found $6,047 in cash, three sets of electronic scales with
cocaine residue, two loaded nine millimeter handguns, a loaded .22 caliber revolver, and a
number of plastic bags during their search of the defendant’s vehicle and residences that he
frequented.

               The defendant’s mother, Catherine Robertson, testified that the defendant lived
with her sometimes and his girlfriend sometimes. She said that the defendant provided
financial assistance to his girlfriend for the care of their two young children and that he often
took the children to daycare while their mother worked. She recalled that he had worked at
both Krystal and Burger King, but she could not remember the length of his employment.
Ms. Robertson said she was aware that the defendant had smoked marijuana, having smelled
it on him in the past, but she denied any knowledge of his having been convicted of any drug
offenses. She was, however, aware that the defendant had been convicted of domestic
assault and vandalism for an incident involving his girlfriend. Ms. Robertson acknowledged
that authorities found a gun in the defendant’s bedroom in her home but claimed that she did
not know it was there.

               Danielle Mitchell, the defendant’s girlfriend, testified that she and the
defendant began dating as teenagers and that they had a four-year-old son and a ten-month-
old daughter. She said that the defendant paid $200 per month in court-ordered child support
and that he provided an extra $800 per month in financial assistance to her and the children.
Ms. Mitchell conceded that she knew the defendant made money by selling drugs. She said,
however, that the defendant intended to get his graduate equivalency diploma (“GED”) and
go to barber school should he be given a sentence involving release into the community. Ms.
Mitchell acknowledged the defendant’s drug addiction and promised that she would make
every effort to help the defendant “stay straight.” Ms. Mitchell denied knowing that the
defendant had two loaded handguns in her residence, with one in reach of her young son.

              The 24-year-old defendant acknowledged selling drugs to the confidential
informant and admitted that selling drugs was his only source of income. He said he had
been encouraged to enter the drug trade by his supplier, Terrence Reams, and that he bought
and sold a quarter of a kilogram of cocaine every three to four weeks. The defendant laid
partial blame for his lifestyle on his own drug addiction and expressed a desire to enter drug
treatment. The defendant said that he had begun GED classes while in jail and that he

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wanted to attend barber school so that he could obtain a job.

               The defendant admitted that he continued to use drugs while on bond on the
charges in this case and that he garnered a new conviction for selling drugs while on bond.
He acknowledged that he continued to sell drugs despite being on both bond and probation
until he was eventually incarcerated.

              The presentence report, which was exhibited to the sentencing hearing,
established that the defendant had convictions of marijuana possession, vandalism, and
domestic violence. The defendant also had juvenile adjudications for offenses that would
have been felonies if committed by an adult. The report confirmed that the defendant had
no source of income other than selling drugs at the time of his arrest and that he committed
another drug offense while on bond for the charges in this case.

               At the conclusion of the hearing, the trial court revoked the defendant’s
probation on his two-year sentence and ordered that sentence be served in confinement. The
court took the remaining case under advisement. In a later-filed, written order the trial court
imposed a sentence of 12 years for each conviction, the maximum within the range, finding
that the defendant had a previous history of criminal convictions in addition to that necessary
to establish the range, see T.C.A. § 40-35-114(1) (2006); that the defendant had failed to
comply with the conditions of a sentence involving release into the community, see id. § 40-
35-114(8); and that the defendant had juvenile adjudications that would have been felonies
if committed by an adult, see id. § 40-35-114(16). Observing that the defendant was not
eligible for probation, the trial court denied all other forms of alternative sentencing based
upon the defendant’s unsuccessful attempt at probation, his lack of amenability to correction,
the large amount of cocaine involved, and his prior convictions for drug offenses.

               In this appeal, the defendant challenges both the length and the manner of
service of the sentence.1 When considering challenges to the length and manner of service
of a sentence this court conducts a de novo review with a presumption that the
determinations of the trial court are correct. T.C.A. § 40-35-401(d) (2006). This
presumption, however, “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). The appealing party, in this case the
defendant, bears the burden of establishing impropriety in the sentence. T.C.A. § 40-35-401,
Sentencing Comm’n Comments; see also Ashby, 823 S.W.2d at 169. If our review of the
sentence establishes that the trial court duly considered “the factors and principles which are


        1
         This case comes to this court following the trial court’s grant of post-conviction relief in the form
of a delayed direct appeal.

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relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, the trial court was required to consider:

              (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
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;
              (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 the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

               The record establishes that the trial court considered all relevant sentencing
principles. The court appropriately applied the three enhancement factors, and those factors
support the 12-year sentence imposed in each count. Additionally, the record supports the
trial court’s denial of alternative sentencing based upon the defendant’s previous
unsuccessful attempt at probation. See id. § 40-35-103(1)(C). Moreover, the presentence
report confirmed that the defendant had a history of drug convictions, and the record
established that his sole source of income was the sale of cocaine. Despite his claim that he
wanted to begin a better life for himself, the defendant admitted that he sold and used drugs
the entire time he was on bond in this case.

              Accordingly, the judgments of the trial court are affirmed.



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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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