         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 23, 2002

              STATE OF TENNESSEE v. WILLIE LEE DAVIDSON

                   Direct Appeal from the Circuit Court for Sevier County
                         No. 7673 & 7674    Rex Henry Ogle, Judge



                                  No. E2001-02659-CCA-R3-CD
                                          May 16, 2003

The appellant, Willie Lee Davidson, pled guilty to the offenses of hindering a secured creditor and
the sale of cocaine. As part of the plea agreement the appellant agreed to a sentence of two years for
the former offense and three years for the latter. By agreement the sentences were to run
concurrently, with the manner of service to be left to the trial court. The trial court denied any form
of alternative service of the appellant’s effective three-year sentence and ordered the appellant to
serve his sentence in incarceration. From this decision the appellant brings this appeal. After
reviewing the record and applicable authorities, we hold there is no reversible error in this case. The
judgment of the trial court is therefore AFFIRMED.


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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G. RILEY,
JJ., joined.

Edward C. Miller, Public Defender, Dandridge, Tennessee, for appellant, Willie Lee Davidson.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General;
Al Schmutzer, Jr., District Attorney General; and Steve Hawkins, Assistant District Attorney
General, for appellee, State of Tennessee.

                                             OPINION

                                        Factual Background

        Following entry of the appellant’s guilty pleas, a hearing was held on the appellant’s request
for alternative sentencing. At that hearing the appellant, who is now 63 years old, testified that he
has numerous significant health problems for which he requires fifteen medications. He is often
confined to a wheelchair, but also can walk occasionally with the assistance of a walker. The
appellant admitted his participation in the sale of cocaine.
        The stipulated proof at the sentencing hearing was that the appellant and a co-defendant sold
a motorcycle they owned and then reported the vehicle stolen in order to claim insurance proceeds.
It was also stipulated that the defendant had sold 0.4 grams of cocaine to an undercover police
officer. The record reflects that the appellant had a prior drug related conviction in 1993 and had
received an alternative sentence of split confinement followed by community corrections. The
community corrections portion of that sentence had ended only months before the appellant’s arrest
on the instant charges.


                                  Appropriateness of Confinement

        The defendant essentially presents two arguments with regard to his sentence of confinement.
First, he maintains that, although there is a mandatory duty to do so, the trial court failed to consider
applicable enhancement and mitigating factors at his alternative sentencing hearing. Secondly, he
maintains that his serious health problems outweigh any societal need to confine him in prison and
that therefore the trial judge should have ordered some form of service of the sentence that did not
involve incarceration. We must respectfully disagree with both of these assertions.

        It is true that Tennessee Code Annotated section 40-35-210(b)(5) mandates that in setting
both the specific sentence term and the appropriate manner of service a trial court “shall” consider
the “evidence and information offered by the parties on the enhancement and mitigating factors in
§§ 40-35-113 and 40-35-114 . . .”. However, in the instant case the length of the sentences was
agreed upon by the parties. As a result no proof was offered as to any specific statutory enhancing
or mitigating factor. We know of no authority requiring trial judges to take judicial notice of such
factors. Nevertheless, we will consider the applicability of the mitigating factors the appellant
suggests are apparent of record.
        In the instant case the appellant suggests that the trial judge should have applied the
mitigating factor found at Tennessee Code Annotated section 40-35-113(1), to wit: that the
defendant’s conduct neither caused nor threatened serious bodily injury. He also suggests that
mitigating factors found at section 40-35-113(6) and (8) are applicable. The first of these mitigates
a sentence if the defendant’s age compromises his judgment in committing the offense. The latter
relates to the defendant having a mental or physical condition that reduces his culpability for the
offense committed. We will address each of these factors in turn and discuss their application to the
appellant.
        This Court, until recently, had often held that the mitigating factor relating to the defendant’s
actions having neither caused nor threatened serious bodily injury had no application in cases
involving cocaine. See, e.g. State v. Vanderford, 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997).
However, in the case of State v. Ross, 49 S.W.3d 833 (Tenn. 2001), the supreme court of this state
held that such a per se exclusion of this mitigating factor in a case involving constructive felonious
possession of cocaine was not consistent with the individualized sentencing scheme of the 1989
Criminal Sentencing Reform Act. Id. at 848-49. It is debatable, however, as to whether Ross is
limited to the particular facts presented, or whether the decision stands for the broader proposition



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that the per se exclusion of a particular mitigating factor to an entire class of offenses is always
erroneous. Id.
        In any case the record before us in this case is bereft of any information regarding the specific
circumstances of either of the crimes committed by the appellant. While it is unlikely that the crime
of hindering a secured creditor carried with it any potential for physical harm, it is often the case that
sales of narcotics, even in controlled buys, is fraught with peril. Some of the participants in these
transactions are often armed and under the influence of alcohol, a controlled substance, or both.
Given that there is a lack of evidence in the record as to the specific circumstances of the appellant’s
crimes, we are unwilling to say the trial court erred in not sua sponte considering this mitigating
factor.
        With respect to the mitigating factors involving the appellant’s age and physical condition,
it appears that these factors are applicable when they somehow lessen the criminal defendant’s
culpability for the offense committed. In the instant case there is nothing to suggest that the
appellant’s age or physical condition lessen his responsibility for the offenses he committed. Rather,
his argument is that his age and physical condition will make incarceration more difficult for him
than for a younger, abler individual. Under these circumstances the trial judge was not under any
command, other than that of his sense of mercy, to consider the appellant’s age or physical condition.
Indeed, it does appear that the trial court considered the appellant’s health problems and correctly
noted they had not prevented the criminal acts to which appellant pled guilty. Moreover, as the trial
court noted, medical services are available within the Department of Correction.
        The record shows the appellant had only months before the instant offenses completed a
community corrections sentence on a narcotics conviction. Thus, the trial court correctly concluded
that the appellant was an offender for whom measures less restrictive than confinement had recently
been applied unsuccessfully. This is an appropriate factor for the denial of an alternative sentence.
Tenn. Code Ann. § 40-35-103(1)(C). We therefore find no reversible error regarding the decision
to incarcerate the appellant.


                                              Conclusion

        For the foregoing reasons, the judgment of the trial court is AFFIRMED.




                                                         ___________________________________
                                                         JERRY L. SMITH, JUDGE




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