        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               February 16, 2010 Session

         STATE OF TENNESSEE v. KENNETH GREGORY ALLEN

              Direct Appeal from the Circuit Court for Marshall County
                        No. 17714     Robert Crigler, Judge


                No. M2009-00070-CCA-R3-CD - Filed August 24, 2010


The defendant, Kenneth Gregory Allen, was convicted of two counts of the sale of less than
.5 grams of cocaine base and two counts of delivery of less than .5 grams of cocaine base,
both Class C felonies; and sale of more than .5 grams of cocaine base, delivery of more than
.5 grams of cocaine base, possession of more than .5 grams of cocaine with the intent to sell,
and possession of more than .5 grams of cocaine with the intent to deliver, all Class B
felonies. The trial court merged the delivery convictions with the convictions for the sale of
cocaine. The defendant was sentenced to serve thirty years at sixty percent for the conviction
for sale of more than .5 grams of cocaine and for the possession with the intent to sell. He
was sentenced to serve fifteen years at sixty percent for the two convictions for the sale of
less than .5 grams of cocaine. The sentences were ordered to run concurrently with each
other but to run consecutively to case 16510, also a drug conviction, and “any unexpired
sentence.” This resulted in an aggregate forty-year sentence. On appeal, the defendant
argues that the trial court imposed an improper sentence. After careful review, we affirm the
judgments from the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and R OBERT W. W EDEMEYER, JJ., joined.

S. Jason Whatley, Columbia, Tennessee, for the appellant, Kenneth Gregory Allen.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard
and Todd Shugart, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                          OPINION

       The facts underlying this case involve the defendant selling cocaine to a police
informant on multiple occasions. The informant talked to the defendant and arranged to
purchase cocaine from him on April 25, May 9, and May 18, 2007. On each of these
occasions, the informant purchased cocaine from the defendant with money provided by the
Seventeenth Judicial District Drug Task Force. Following each purchase, the informant
immediately went to members of the drug task force to turn over the drugs. On July 6, 2007,
the informant scheduled a drug purchase with the defendant. This meeting was cancelled
because of a delay. The defendant called the informant and told her that he was at the
arranged meeting place, and she reported the call to the drug task force. Members of the
drug task force then went to the arranged meeting place and arrested the defendant.

        At trial, a Tennessee Bureau of Investigation forensic scientist specializing in the
identification of controlled substances testified that the substances purchased from the
defendant by the informant were cocaine bases, also known as crack cocaine. The substances
he tested weighed .38, .39, .99, and .82 grams, respectively.

       During the sentencing hearing, the trial court was notified that the defendant had six
prior Class B felony convictions which would qualify him as a career offender. A Probation
and Parole employee testified that when the defendant committed the underlying crimes, he
was on probation for convictions on case 16510. The ten-year sentences imposed on July 6,
2005, for the drug-related convictions in case 16510, included the following Class B felonies:
possession with intent to sell, possession with intent to deliver, sale of cocaine, and delivery
of cocaine.

        The defendant also testified at the sentencing hearing that he maintained full-time
employment from the time he graduated high school until he was arrested for the drug
charges in 2004. He said he was remorseful when he received the ten-year sentence, but he
experienced hard times and made a bad decision to sell drugs to make money. He testified
that he has three children by three women and that he pays court ordered child support to two
of the mothers. He testified that, after paying child support and taxes, he had thirty to forty
dollars remaining each week. The defendant explained that he began selling crack cocaine
again because people seeking drugs approached him. He said he was sorry that he became
involved in selling drugs.

        The State asked the trial court to run his pending sentences concurrent with each other
but consecutive to his prior convictions. At the conclusion of the hearing, the trial court
made findings that, based on his prior convictions, the defendant was a career offender. The
trial court merged some of his convictions and imposed a sentence of thirty years as a career

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offender. The court also addressed the issue of consecutive sentencing by finding that the
defendant was on probation when he committed the most recent crimes. The court also
found that the defendant was an offender with an extensive record of criminal activity
because he had six prior felony convictions that occurred on different occasions. The trial
court reasoned that ordering concurrent sentences for offenses committed while a defendant
was on probation would depreciate the purpose of probation and ordered the sentences from
the present trial to run concurrent with each other but consecutive to his previous ten-year
sentence.

                                           Analysis

       The defendant raises three issues on appeal with regard to the sentencing for his
underlying convictions. He contends that the trial court erred in classifying him as a career
offender and in ordering that his most recent sentences run consecutively to his earlier
sentence. He also argues that the controlled purchases constitute entrapment by law
enforcement and should not serve as separate criminal activity so as to make him a career
offender.

       The defendant argues that the aggregate length of the forty-year sentence is excessive.
The State argues that because the defendant had six prior Class B felony convictions and was
convicted of four Class B felonies and four Class C felonies in the instant case, the trial court
was required to sentence him to the maximum in his range, thirty years, pursuant to
Tennessee Code Annotated section 40-35-108(c). We agree. The defendant was properly
considered a career offender for sentencing purposes. Therefore, the issue to consider is
whether the trial court properly ordered his sentence to run consecutively to his previous ten-
year sentence.

       When an accused challenges the length, range, or manner of service of a sentence, this
court will conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. T.C.A. § 40-35-401(d) (2006). This
presumption “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 weight to be afforded an enhancement or
mitigating factor is left to the trial court’s discretion so long as its use complies with the
purposes and principles of the 1989 Sentencing Act and the court’s findings are adequately
supported by the record. T.C.A. § 40-35-210(d)-(f) (2006); State v. Carter, 254 S.W.3d 335,
342-43 (Tenn. 2008). The burden of showing that a sentence is improper is upon the
appellant. Ashby, 823 S.W.2d at 169; see also T.C.A. § 40-35-401 (2006).

       When conducting a de novo review of a sentence, this court must consider: (1) the

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evidence received at 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 offered by the parties on the
enhancement and mitigating factors; (6) any statement the defendant wishes to make in his
own behalf about sentencing; and (7) the potential for rehabilitation or treatment. T.C.A. §
40-35-210 (2006). Pursuant to Tennessee Code Annotated section 40-35-115(b), a trial court
may impose consecutive sentences if it finds by a preponderance of the evidence that at least
one of following statutory criteria applies: (2) the defendant is an offender whose record of
criminal activity is extensive; [or] (6) the defendant is sentenced for an offense committed
while on probation. T.C.A. § 40-35-115(b) (2), (6). The general principles of sentencing
require that the length of the sentence be “justly deserved in relation to the seriousness of the
offense” and “be no greater than that deserved for the offense committed.” T.C.A. §§ 40-35-
102(1), -103(2); State v. Imfield, 70 S.W.3d 698, 708 (Tenn. 2002).

       The defendant argues that the trial court abused its discretion in concluding that he
had an extensive criminal record. Specifically, he argues that these convictions were his
second conviction for selling crack cocaine as a street-level dealer, with a total of ten
occurrences. He further argues that his convictions do not suggest that he is a danger to
society or the public in need of a forty-year sentence of confinement.

        The trial court properly found that the length of the sentence was justly deserved in
relation to the seriousness of the offenses and, under the circumstances, was no greater than
deserved. The record reflects that the trial court considered the sentencing principles and all
relevant facts and circumstances before imposing sentence. The court noted that if the
defendant’s sentence were to run concurrently with his ten-year sentence for which he
received probation, this would depreciate the purpose of probation. Generally, it is within
the discretion of the trial court to impose consecutive sentences if it finds by a preponderance
of the evidence that at least one of following statutory criteria applies: (2) [t]he defendant is
an offender whose record of criminal activity is extensive; [or] (6) [t]he defendant is
sentenced for an offense committed while on probation. T.C.A. § 40-35-115(b). The
defendant committed the underlying offenses while he was on probation; therefore, the trial
court did not abuse its discretion in setting the sentence in this case.

        Next, the defendant argues that he was entrapped by the drug task force for multiple
counts and that these counts served to enhance his sentence. In support of his argument, he
refers to this court’s opinion in State v. John Derrick Martin, No. 01C01-9502-CR-00043,
1995 Tenn. Crim. App. LEXIS 984, at *14 (Tenn. Crim. App. at Nashville, Dec. 19, 1995).
The defendant in Martin was convicted of multiple drug offenses stemming from controlled
purchases from a police informant. The Martin case is similar to the defendant’s case
because the drug sales were controlled buys and the officers of the drug task force dictated

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the number of counts. The court in Martin also ran the defendant’s sentences consecutive
to an existing, unfinished sentence but this court modified the defendant’s forty-year sentence
to twenty years because it concluded that the sentence was not reasonably related to the
severity of the crimes. Here, the trial court was required to sentence the defendant to thirty
years for a single conviction. The defendant’s multiple counts of selling to the police
informant had no impact on the defendant’s thirty-year sentence. The trial court chose to run
the defendant’s sentences concurrently with each other. As previously stated, because the
defendant was on probation when the instant crimes occurred, it was within the trial court’s
discretion to run the sentences consecutively.

                                         Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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