         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 14, 2001

             STATE OF TENNESSEE v. THORSTEN JOHN BOGER

                Direct Appeal from the Circuit Court for Montgomery County
                     No. 36977 & 40325     John H. Gasaway, III, Judge



                     No. M1999-02476-CCA-R3-CD - Filed April 4, 2001


Thorsten John Boger appeals from the sentencing decision of the Montgomery County Circuit Court
following his guilty pleas to two counts of class B felony sale of cocaine. Boger was sentenced to
nine years in the Department of Correction on each count, with the sentences to be served
concurrently. On appeal, he argues that he should have received the minimum sentence of eight
years. Finding no error, we affirm.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Thorsten John Boger.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Angele M.
Gregory, Assistant Attorney General, John Wesley Carney, Jr., District Attorney General, and C.
Daniel Brollier, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

        On July 27, 1999, the Appellant, Thorsten John Boger, pled guilty to two counts of sale of
cocaine, class B felonies, and was sentenced to concurrent nine year sentences on each count. On
the date these offenses were committed, the Appellant was on probation as a result of his placement
on judicial diversion. In October of 1996, the Appellant had been granted judicial diversion
following his guilty pleas to the offenses of criminal trespass and class C aggravated assault.
Adjudication of guilt was deferred for a period of three years. Following entry of his July 1999
guilty pleas for the sale of cocaine, the Appellant’s diversion status was terminated. Accordingly,
adjudication of guilt was entered for the past offenses of criminal trespass and aggravated assault and
the Appellant received an effective three year sentence for the offenses. This three year sentence
was ordered to be served consecutively to his nine year sentences for the sale of cocaine for an
effective sentence of twelve years. The Appellant does not appeal imposition of his sentences for
aggravated assault and criminal trespass. Instead, he argues that he should have received the
minimum sentence of eight years for each of his class B felony convictions. After review, we affirm
the judgment of the Montgomery County Circuit Court.


                                        Standard of Review

        At the time of the sentencing hearing, the Appellant was twenty-six years of age and single.
He is the father of four children and currently resides with his girlfriend. He dropped out of high
school but did obtain a GED. His employment history is, at best, sporadic. He currently is employed
with a roofing company. He pays child support to two of his four children and is currently in arrears
in the sum of $9,000. His first encounters with the law began when he was a juvenile. His first adult
conviction occurred when he was eighteen. His criminal history includes ten or eleven prior
offenses, including the felony offense of aggravated assault and two prior misdemeanor drug
offenses. The Appellant has been granted probation on five prior occasions, which obviously has
proved unsuccessful.

        The trial court found two enhancement factors: (1) the defendant has a previous history of
criminal convictions in addition to those necessary to establish the appropriate range; and (2) the
felony was committed while the defendant was on release status. See Tenn. Code Ann. § 40-35-
114(1) & (13). The trial court also applied as a non enumerated factor that the defendant voluntarily
entered a plea of guilty and has expressed remorse for his conduct. See Tenn. Code Ann. § 40-35-
113(13). The Appellant does not contest the application of these enhancement and mitigating
factors. Instead, the Appellant only argues that the trial court erred in ordering a sentence of nine
years instead of the presumptive minimum sentence of eight years.

        The weight to be afforded an existing factor is left to the trial court’s discretion so long as
the court complies with the purposes and principles of the 1989 Sentencing act and its findings are
adequately supported by the record. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996).
The weight to be afforded mitigating and enhancement factors derives from balancing relative
degrees of culpability within the totality of the circumstances of the case involved. Boggs, 932
S.W.2d at 476; See also State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993). The
record clearly supports the trial court’s decision to enhance the Appellant’s sentence based on his
prior criminal history and commission of a felony while on release status. Accordingly, we find the
trial court’s imposition of the nine-year sentences for the sale of cocaine to be clearly justified.




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                                        CONCLUSION

       Following a de novo review, we find the nine-year sentences imposed for the sale of cocaine
to be appropriate in the present case. Accordingly, we affirm the judgment of the Montgomery
County Circuit Court.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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