         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                      Assigned on Briefs May 19, 2009 at Knoxville

          STATE OF TENNESSEE v. DELARIE KATRICE PURNELL

                      Appeal from the Circuit Court for Marshall County
                             No. 08CR43 Robert Crigler, Judge



                    No. M2008-02333-CCA-R3-CD - Filed October 27, 2009



The Defendant, Delarie Katrice Purnell, pled guilty to sale and delivery of a Schedule VI controlled
substance (counts 1 and 2), sale and delivery of a Schedule II controlled substance (counts 3 and 4),
sale and delivery of a Schedule I controlled substance (counts 5 and 6), speeding (count 7), and
simple possession of a Schedule VI controlled substance (count 8). At the sentencing hearing, the
trial court denied alternative sentencing. The Defendant appeals, arguing that her sentence is
excessive and contrary to law. Citing the Defendant’s previous criminal convictions and criminal
conduct, the court ordered the Defendant to serve an effective sentence of ten years as a Range I
Standard Offender. After reviewing the record, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and NORMA MCGEE OGLE , JJ., joined.

Donna Orr Hargrove, District Public Defender; Michael J. Collins and William Harold, Assistant
District Public Defenders, attorneys for appellant, Delarie Katrice Purnell.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, attorneys for appellee, State of Tennessee.

                                              OPINION

        The facts are not in dispute. The Defendant stated, in a written statement after her arrest, that
she traveled from Indianapolis to Houston, Texas with a friend from work. Upon arriving in
Houston, the friend rented a car and they went to a hotel in Houston for the night. The next day, a
Monday, the Defendant left her friend to meet a man named Rob at the Kentucky Fried Chicken next
to the hotel. The Defendant bought two pounds of marijuana and fifteen ecstasy pills from Rob. On
Tuesday, the Defendant met Rob at a liquor store and purchased a small amount of cocaine for her
cousin. Her cousin wired her five hundred dollars to cover his share of the marijuana purchase. On
their drive back to Indianapolis, the Defendant was pulled over by Tennessee Highway Patrol
Trooper Wayne Dunkleman for speeding.

        Trooper Dunkleman testified at the sentencing hearing. According to Trooper Dunkleman,
he stopped the Defendant on Interstate I-65 for going 82 miles per hour in a 70 mile per hour speed
zone. He stated that he smelled what “he believed to be a burned marijuana smell” emanating from
the car and from the Defendant. After talking to the passengers, he allowed his canine to circle the
vehicle. The canine reacted to the smell of marijuana on the “driver’s side door and the left trunk
area of the vehicle.” Upon noticing the canine’s reaction, he told the occupants, including the
passenger who had rented the car in her name, that he “already had probable cause to search the
vehicle.” At that point, the passenger said “go ahead and search whatever you want.” Trooper
Dunkleman asked the Defendant if there was any marijuana in the car. He testified that the
Defendant “stated that there was a marijuana blunt in the ashtray and she would show it to me if I
would let her go home.” He refused and advised the Defendant of her Miranda rights. The
Defendant then began “kicking stones” and “cussing loudly.”

        Trooper Dunkleman stated that he noticed that the passenger was shivering. While retrieving
a jacket from the trunk for the passenger, he noticed a “very strong odor of what [he] believed to be
raw marijuana.” When Deputy Lindsay Cook of the Marshall County Sheriff’s Department arrived,
Trooper Dunkleman and Deputy Cook searched the vehicle and found a marijuana blunt in the
ashtray, three packages of marijuana in a blue, Nike duffle bag, a plastic bag containing cocaine, and
thirteen Ecstasy pills.

         Therese Frazier of the State of Tennessee’s Department of Probation and Parole also testified
at the sentencing hearing. She stated that the Defendant had two prior felony convictions of burglary
and received a four year sentence. She was ordered to serve 210 days before being released on
probation. According to Ms. Frazier, the Defendant had been to two treatment programs for her
addiction to cocaine.

                                             ANALYSIS

         The Defendant’s sole issue on appeal is that the trial court imposed an excessive sentence.
An appellate court’s review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2005). The appealing party
has the burden of showing that the imposed sentence is improper. Id. If review of the record reflects
that the trial court properly considered all relevant factors, gave due consideration and proper weight
to each factor, and its findings of fact are adequately supported by the record, this court must affirm
the sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Should the record
fail to demonstrate the required considerations by the trial court, then appellate review of the
sentence is purely de novo. Ashby, 823 S.W.2d at 169. In this respect, for the purpose of
meaningful appellate review,



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       [T]he 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. Tenn. Code Ann. § 40-35-210(f) (1990).

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

       In conducting its de novo review, the appellate court 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 her own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d
229, 236-37 (Tenn. 1986).

        The Defendant committed this offense on February 27, 2008; thus, she was sentenced under
the revised sentencing act as enacted by the Tennessee General Assembly in 2005. The act provides:

       (c) The court shall impose a sentence within the range of punishment, determined
       by whether the defendant is a mitigated, standard, persistent, career, or repeat violent
       offender. In imposing a specific sentence within the range of punishment, the court
       shall consider, but is not bound by, the following advisory sentencing guidelines:

               (1) The minimum sentence within the range of punishment is the
               sentence that should be imposed, because the general assembly set the
               minimum length of sentence for each felony class to reflect the
               relative seriousness of each criminal offense in the felony
               classifications; and
               (2) The sentence length within the range should be adjusted, as
               appropriate, by the presence or absence of mitigating and
               enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2) (2006).

        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. Id. § (d)-(f); State v. Carter, 254
S.W.3d 335, 342-43 (Tenn. 2008). “An appellate court is therefore bound by a trial court’s decision
as to the length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in . . . the Sentencing Act.” Carter, 254 S.W.3d at 346. Accordingly,
on appeal we may only review whether the enhancement and mitigating factors were supported by
the record and their application was not otherwise barred by statute. See id.


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        In imposing a sentence, the trial court may only consider enhancement factors that are
“appropriate for the offense” and “not already . . . essential element[s] of the offense.” Tenn. Code
Ann. § 40-35-114 (2006). These limitations exclude enhancement factors “based on facts which are
used to prove the offense” or “[f]acts which establish the elements of the offense charged.” State
v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994). Our supreme court has stated that “[t]he purpose of
the limitations is to avoid enhancing the length of sentences based on factors the legislature took into
consideration when establishing the range of punishment for the offense.” State v. Poole, 945
S.W.2d 93, 98 (Tenn. 1997); Jones, 883 S.W.2d at 601.

         After reviewing the record, we conclude that the trial court considered the necessary
sentencing principles and the relevant facts and circumstances in this particular case. Therefore, we
will conduct a de novo review on the record, with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d).

        At the sentencing hearing, the State proposed the following enhancement factor: “The
[D]efendant has a previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range.” Tenn. Code Ann. § 40-35-114. In return, the
Defendant proposed one mitigating factor: “The [D]efendant’s criminal conduct neither caused nor
threatened serious bodily injury.” Tenn. Code Ann. § 40-35-113(1). The court noted the
Defendant’s criminal convictions and past criminal conduct and applied enhancement factor number
one. Before making its final determination, the court considered and applied mitigating factor
number thirteen (that the Defendant pled guilty without any agreement, sparing the State the cost and
expense of a trial).

        Finding that the sentences should be served concurrently, the court sentenced the Defendant
as follows:

 Count                Charge                                          Disposition & Sentence
 1                    Possession with intent to sell a Schedule       Merged with Count 2
                      VI controlled substance
 2                    Possession with intent to deliver a             1 and ½ years
                      Schedule VI controlled substance
 3                    Possession with intent to sell a Schedule       Merged with Count 4
                      II controlled substance
 4                    Possession with intent to deliver a             10 years
                      Schedule II controlled substance
 5                    Possession with intent to sell a Schedule I     Merged with Count 6
                      controlled substance
 6                    Possession with intent to deliver a             10 years


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                      Schedule I controlled substance
 7                    Speeding                                      30 days
 8                    Simple possession of a Schedule VI            Merged with Count 2
                      controlled substance

        The record establishes that the trial court considered and weighed each factor in the case
before making its final decision. The enhancement and mitigating factors are supported by the
record. Accordingly, we conclude that the record supports the trial court’s sentencing decision in
this case.

                                         CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                      ___________________________________
                                                      D. KELLY THOMAS, JR., JUDGE




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