            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE               FILED
                          FEBRUARY 1997 SESSION
                                                           July 31, 1997

                                                      Cecil W. Crowson
ROGER D. PULLEY,              *                      Appellate Court Clerk
                                    C.C.A. # 01C01-9605-CC-00217

             Appellant,       *     WAYNE COUNTY

VS.                           *     Hon. Jim T. Hamilton, Judge

STATE OF TENNESSEE,           *     (Sale of Cocaine--5 Counts)

             Appellee.        *



For Appellant:                      For Appellee:

Robert D. Massey                    Charles W. Burson
209 West Madison                    Attorney General & Reporter
P.O. Box 409
Pulaski, TN 38478                   Peter Coughlan
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Mike Bottoms
                                    District Attorney General
                                    P.O. Box 459
                                    Lawrenceburg, TN 38464

                                    Stella Hargrove
                                    Assistant District Attorney General
                                    10 Public Square
                                    P.O. Box 1619
                                    Columbia, TN 38402-1619




OPINION FILED:_____________________



AFFIRMED AS MODIFIED



GARY R. WADE, JUDGE


                                  OPINION
               The defendant, Roger D. Pulley, was convicted of five counts of selling

cocaine; all were Class B felonies. The trial judge sentenced the defendant to ten

years on each offense and ordered all five sentences to be served consecutively, for

an effective sentence of fifty years. On direct appeal, this court reduced counts one

and two to Class C because the charging language in the indictment did not include

the amount of cocaine involved. State v. Roger D. Pulley, No. 01C01-9501-CC-

00013, slip op. at 9 (Tenn. Crim. App., at Nashville, Sept. 20, 1995). Because the

trial judge failed to state on the record the rationale for ordering all five sentences to

be served consecutively, there was a remand for resentencing. Id. At the second

sentencing hearing, the state presented no additional proof. Thereafter, the trial

judge sentenced the defendant to six years each on counts one and two and twelve

years each on counts three, four, and five. Counts one and two are concurrent with

each other; counts three and four are consecutive to each other as well as counts

one and two. Count five is concurrent with count four. Thus, the effective sentence

is thirty years.



               In this appeal, the defendant complains that the trial court erred by

misapplying certain of the enhancement factors and by ordering consecutive

sentences. We modify each of the three twelve-year sentences to ten-year

sentences. We also modify each of the six-year sentences to five-year sentences.

We otherwise affirm the judgment of the trial court. The effective sentence is,

therefore, twenty-five years.



               The defendant was found guilty by a jury of selling cocaine on five

different occasions:

               (1) 3.5 grams on January 26, 1993;

               (2) 5.8 grams on February 12, 1993;


                                            2
              (3) 26.8 grams on February 17, 1993;

              (4) 51.7 grams on February 23, 1993; and

              (5) 92 grams on March 19, 1993.

See Roger D. Pulley, slip op. at 2-4.



              At the first sentencing hearing, Danny Mathis and Gary Matthews

testified as character witnesses for the defendant; both had worked with the

defendant occasionally and described him as a good worker. The presentence

report indicates that the forty-seven-year-old defendant, who has neither completed

high school nor acquired a G.E.D., is a self-employed painter, roofer, and brick

mason. He has worked for one owner consistently for the last three years and "on

and off" for the last five to seven years. W.F. Guire, a minister, testified that the

defendant had become more active at church since the offenses and that he had

expressed a desire to change his life for the better.



              The presentence report shows the following criminal record: a 1987

conviction for DUI, a 1987 conviction for failure to yield to blue lights, a 1984

conviction for public intoxication, two 1981 convictions for traffic offenses, a 1980

conviction for passing worthless checks, a 1976 conviction for assault and battery, a

1974 conviction requiring the defendant to carry his license and exhibit it on

demand, a 1973 conviction for driving on a revoked license, a 1970 conviction for

burglary other than a habitation, a 1967 conviction for a traffic offense, and a 1967

conviction for being disobedient to police officers. At the time of the first sentencing

hearing, the defendant had the following charges "pending": five counts of sale of

Schedule II drugs, assault, first degree burglary, and arson.



              At the initial sentencing hearing, the trial judge failed to state on the


                                            3
record which, if any, enhancement factors were applicable. On appeal, the state

had argued that two enhancement factors were warranted: the defendant's prior

criminal history and the commission of these offenses while on bond. Tenn. Code

Ann. § 40-35-114(1), (13). Our court ruled that the prior criminal history factor had

been established; however, this court ruled that the second enhancement factor

could not be considered as to these offenses unless the defendant was actually

convicted of the felonies for which he was on bail. Because the record was silent on

that issue, this court ordered that "the applicability of this factor may be determined

by the trial judge on remand." Roger D. Pulley, slip op. at 7.



              At the second sentencing hearing, the state presented no new

evidence. There were no supplements to the presentence report.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). 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); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)


                                           4
any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              At the time of this offense, the presumptive sentence was the

minimum in the range if there were no enhancement and mitigating factors. Tenn.

Code Ann. § 40-35-210 (amended in 1995 changing the presumptive sentence for a

Class A felony to the midpoint in the range). Should the trial court find mitigating

and enhancement factors, it must start at the minimum sentence in the range and

enhance the sentence based upon any applicable enhancement factors, and then

reduce the sentence based upon any appropriate mitigating factors. Tenn. Code

Ann. § 40-35-210(e). The weight given to each factor is within the trial court's

discretion provided that the record supports its findings and it complies with the

Sentencing Act. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The trial

court should, however, make specific findings on the record which indicate its

application of the sentencing principles. Tenn. Code Ann. §§ 40-35-209 and -210.



              The trial court found the following factors applicable:

              [T]he enhancement factors, of course, that the Court
              found ... were the number of sales involved, the
              openness of those sales, the amount of money involved,
              the amount of drugs involved, the fact that cocaine itself,
              is destroying this country.

                      Wayne County, especially, has a bad cocaine
              problem, as [do] the other three counties in this district.
              The Court is considering any deterrent effect this might
              have on that type of criminal activity in this judicial
              [district].

The following exchange then occurred between the state and the court:

              Assistant District Attorney General: And for the record, is
              Your Honor also considering the two enhancement
              factors that were considered at the first sentencing
              hearing.

                                            5
                 The Court: Yes, ma'am.

                 Assistant District Attorney General: All right. And as
                 addressed in page seven of the opinion.

                 The Court: Right.



                 The trial court erred by its obvious reliance on nonstatutory

enhancement factors. Courts have consistently held that the enhancement factors

contained in Tenn. Code Ann. § 40-35-114 "are the exclusive factors which may be

considered in setting the length of a sentence within a given range." State v. Dykes,

803 S.W.2d 250, 258 (Tenn. Crim. App. 1990). See also Roger D. Pulley, slip op. at

8. Because the trial court neglected to follow the statutory procedure, our review

must be de novo without the presumption of correctness. See State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992) ("If the trial court applies inappropriate

factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of

correctness falls.").



                 On remand, the state failed to prove that the charges for which the

defendant was on bail resulted in conviction. The state's appellate brief makes no

mention of the applicability of this enhancement factor. The state chose to rely on

the original presentence report, which was not updated for the resentencing

procedure. The report merely shows that the offenses were "pending"; there is no

indication of the final disposition. We must, therefore, resolve this matter favorably

for the defendant.1



                 The defendant's prior criminal record is well established. No other


        1
          During argument, counsel for the state comm ented the defendant "was still out on bail for
those [offenses] ... per the presentence report." At one point, defense counsel implies that the "on
bail" factor should be ap plied. In the absen ce of a stipulation, however, "argum ents of coun sel ... are
not eviden ce." State v. Ro berts , 755 S.W .2d 833, 836 (T enn . Crim . App . 1988).

                                                     6
factors appear to be applicable. Yet the defendant argues that the trial court erred

by failing to consider as a mitigating circumstance that he is an alcoholic and that he

has a limited work history. He also argues the trial court erred in resentencing him

to twelve years for the Class B felonies, where the initial sentence was ten years

each. He argues, "[i]t does not make ... sense to now find the defendant

appropriate for a twelve ... year sentence when the previous sentence had been ten

... years ...."2



                   In reviewing the propriety of the sentence on a de novo basis, we tend

to concur with the trial judge's initial assessment that an enhanced sentence is

warranted. A single enhancement factor, however, rather than the two cited on

remand, is applicable. Moreover, the trial judge based the twelve-year sentences, at

least in part, on several nonstatutory aggravating circumstances. Under these

circumstances, a mid-range, ten-year sentence, rather than the maximum, would be

warranted by the content of the appellate record. The same rationale applies to the

propriety of the two six-year sentences. In our view, the defendant's prior criminal

record, standing alone, did warrant an enhanced sentence. The range for the Class

C offenses is between three and six years. Tenn. Code Ann. § 40-35-112(a)(3).

Mid-range sentences of five years are appropriate.



                   We now address the appropriateness of consecutive sentences. Prior

to the enactment of the Criminal Sentencing Reform Act of 1989, the limited

classifications for the imposition of consecutive sentences were set out in Gray v.

State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court ruled that



        2
           Although the issue ha s not been raised by either party, the imp osition of a more s evere
sen tenc e up on re sen tenc ing m ay violate due proc ess . See North Carolina v. Pearce, 395 U.S. 711
(1969). In this case, however, the defendant does not argue that his sentence is the result of
vindictiveness; we hesitate to make the argument for him. The defendant only addresses whether the
trial court app ropriately followe d the 198 9 Se nten cing Reform Act.

                                                   7
aggravating circumstances must be present before placement in any one of the

classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the court

established an additional category for those defendants convicted of two or more

statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution: "[C]onsecutive sentences should not routinely be

imposed . . . and . . . the aggregate maximum of consecutive terms must be

reasonably related to the severity of the offenses involved." Taylor, 739 S.W.2d at

230. The Sentencing Commission Comments adopted the cautionary language.

Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the

holdings in Gray and Taylor; consecutive sentences may be imposed in the

discretion of the trial court only upon a determination that one or more of the

following criteria3 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself to criminal acts as a major
                 source of livelihood;

                  (2) The defendant is an offender whose record of
                  criminal activity is extensive;

                 (3) The defendant is a dangerous mentally abnormal
                 person so declared by a competent psychiatrist who
                 concludes as a result of an investigation prior to
                 sentencing that the defendant's criminal conduct has
                 been characterized by a pattern of repetitive or
                 compulsive behavior with heedless indifference to
                 consequences;

                  (4) The defendant is a dangerous offender whose
                  behavior indicates little or no regard for human life, and
                  no hesitation about committing a crime in which the risk
                  to human life is high;

                  (5) The defendant is convicted of two (2) or more
                  statutory offenses involving sexual abuse of a minor with
                  consideration of the aggravating circumstances arising
                  from the relationship between the defendant and victim
                  or victims, the time span of defendant's undetected


         3
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felon y convictions , m ay enh anc e the sen tenc e ran ge b ut is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Com mission Comm ents.

                                                       8
              sexual activity, the nature and scope of the sexual acts
              and the extent of the residual, physical and mental
              damage to the victim or victims;

              (6) The defendant is sentenced for an offense
              committed while on probation;

              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



              In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, as now defined by subsection

(b)(4) in the statute, other conditions must be present: (a) that the crimes involved

aggravating circumstances; (b) that consecutive sentences are a necessary means

to protect the public from the defendant; and (c) that the term reasonably relates to

the severity of the offenses.



              More recently, in State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.

1995), our high court reaffirmed those principles, holding that consecutive

sentences cannot be required of the dangerous offender "unless the terms

reasonably relate to the severity of the offenses committed and are necessary in

order to protect the public (society) from further criminal acts by those persons who

resort to aggravated criminal conduct." The Wilkerson decision, which modified

somewhat the strict factual guidelines for consecutive sentencing adopted in State v.

Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a

"human process that neither can nor should be reduced to a set of fixed and

mechanical rules." Wilkerson, 905 S.W.2d at 938.



              In imposing the consecutive sentences in this case, the trial court

observed as follows:

                     [T]he Court finds that the defendant, Mr. Pulley,

                                           9
             has knowingly devoted himself to criminal acts as a
             major source of his livelihood. He has extensive criminal
             activity in his past. These convictions show a criminal
             conduct characterized by a pattern of repetitive or
             compulsive behavior by the defendant, with no regard to
             the consequences.

                    The Court is considering that the defendant was
             out on bail at the time -- out of jail on bail at the time the
             offenses were committed. The Court also is considering
             the fact that the defendant's behavior indicates little or no
             regard for human life. He didn't hesitate about
             committing these crimes over a period of about a month's
             time.

                     He was paid some $9250.00 for the sale of
             cocaine. And the Court finds this crime does place a
             high risk on human life.

                     The Court finds it's necessary to protect society
             from the defendant's unwillingness to lead a productive
             life, and his antisocietal lifestyle.

                    And the Court finds that the [aggregate] length of
             these consecutive sentences ... do reasonably relate to
             the offenses for which the defendant stands convicted.

                    The Court is unable to find a definition for the
             word, "aggravated circumstances." The Gray case
             doesn't really define it. I don't find it defined in this Taylor
             case.

                                           ***

                     I'm just simply going to find fulfillment of that
             criteria that the circumstances surrounding these offense
             were aggravated by the way the drugs were sold, the
             persistent sale of the drugs, and the amount of money,
             and the amount of drugs that were involved.

             So with that in mind, the Court will fix the sentence for 30
             years.



             We cannot disagree with this assessment. Consecutive sentences are

warranted. The trial court's determination that the defendant is a "professional

criminal who has ... devoted himself to criminal acts as a major source of livelihood"

is supported by the fact that he was paid almost $10,000 for the cocaine sales that

occurred in slightly over a month's time. See Tenn. Code Ann. § 40-35-115(b)(1).

                                           10
The presentence report, which was uncontested, also shows that the defendant had

operated a garage; during a raid in 1990, police discovered several baggies of

cocaine in the garage. This indicates a packaging process for resale. The number

of offenses over the period of time involved in these cases tends to substantiate the

conclusion the defendant regularly sold cocaine as a livelihood.



             Moreover, the defendant's extensive criminal record also warrants

consecutive sentencing. See Tenn. Code Ann. § 40-35-115(b)(2). Forty-four years

of age at the time the presentence report was prepared, the defendant has engaged

in criminal conduct beginning at the age of seventeen. He sold progressively larger

amounts of cocaine. Our conclusion is that the aggregate length of the sentences is

necessary to protect society from the defendant's propensity to break the law.



             Accordingly, the judgment is affirmed, except that each of the twelve-

year sentences are modified to ten-year sentences and the two six-year sentences

are modified to five years. Thus, the effective sentence is twenty-five years.

                                         __________________________________
                                         Gary R. Wade, Judge

CONCUR:



________________________________
David G. Hayes, Judge



__________________________________
Curwood Witt, Judge




                                          11
