        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 6, 2003

           STATE OF TENNESSEE v. JAMES ADMERAL YANDAL

                   Direct Appeal from the Circuit Court for Obion County
                           No. 2-68  William B. Acree, Jr., Judge



                   No. W2002-01521-CCA-R3-CD - Filed October 8, 2003


The defendant appeals his conviction and sentence for selling a Schedule VI drug over one-half
ounce, a violation of Tennessee Code Annotated section 39-17-417(a)(3), a Class E felony. The
defendant alleges that the delay between the offense date and his conviction was a due process
violation and that his four-year sentence as a Range II offender was excessive. We conclude that
neither issue is meritorious and affirm the judgment from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE
G. RILEY, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P. Atnip, District Public
Defender, and William K. Randolph, Assistant Public Defender (at trial and on appeal), for the
appellant, James Admeral Yandal.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin D. Alpin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

                                              Facts

       In July of 2000, the Union City Police Department was conducting an undercover operation
under the direction of Lieutenant Rick Kelly. Kelly was utilizing an undercover agent, Deborah
Huffman, to make drug purchases. On July 21, 2000, Huffman arranged to buy a quarter of a pound
of marijuana from Kenyatta Reaves, a co-defendant. After receiving purchase money from Kelly
and being wired with a transmitter, Huffman proceeded to Reaves’ residence. Initially, Reaves did
not have the drugs, but a black male, later identified as the defendant, arrived with the packaged
marijuana. Huffman paid Reaves $325, and the defendant handed Huffman the drugs. The
defendant was identified through a trace of his vehicle license plate and a subsequent photo
identification by Huffman. Testing by the Tennessee Bureau of Investigation revealed the drugs to
be 107.3 grams of marijuana. .

       The presentence report reflected that this thirty-six-year-old defendant was a high school
graduate. He was married and had two daughters, but was currently separated from his wife. He had
worked at Goodyear Tire & Rubber from 1989 to 2000, but had been fired and was currently
unemployed.

        In 2000, the defendant had been convicted for possession of a weapon, a Class E felony,
contemporaneously with a conviction for possession of Schedule VI drugs, a Class E felony, and in
1996, for reckless endangerment, a Class E felony. Also, the presentence report showed convictions
for five misdemeanors, which did not include the defendant’s traffic offense convictions.

                                            Due Process

        The offense was committed on July 21, 2000. An arrest warrant was issued on October 12,
2001, and the defendant was arrested on October 30, 2001. The defendant was tried and convicted
in the Circuit Court of Obion County on May 24, 2002. A motion to dismiss the indictment due to
delay in prosecution was filed on April 17, 2002, and overruled on April 23, 2002.

        The defendant asserts that the delay of more than fourteen months between the commission
of the offense and commencement of prosecution was a violation of his due process rights. We do
not interpret the defendant’s argument as raising a speedy trial issue and do not believe that such an
issue could be sustained. It is only after formal grand jury action or actual restraint of arrest that
triggers a speedy trial analysis. State v. Utley, 956 S.W.2d 489, 493 (Tenn. 1997); State v. Wood,
924 S.W.2d 342, 345 (Tenn. 1996); State v. Baker, 614 S.W.2d 352, 353 (Tenn. 1981).

        A delay between the date of the offense and arrest or indictment may, however, implicate due
process concerns under the Fifth and Fourteenth Amendments to the United States Constitution and
Article I, § 9 of the Tennessee Constitution. The standard for evaluation of pre-accusatorial delays
as violative of due process was proclaimed in State v. Gray, 917 S.W.2d 668, 673 (Tenn. 1996). We
are instructed therein to consider (1) the length of delay; (2) the reason for delay; and (3) the degree
of prejudice, if any, to the accused.

        The test adopted in Gray was later limited to cases in which the State was not knowledgeable
that an offense had been committed. In cases where the State has awareness of the offense, the
standard is that set forth in U.S. v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).
That test is whether the delay caused prejudice to the defendant’s right to a fair trial and whether the
delay was caused by the State to obtain an advantage. State v. Utley, 956 S.W.2d 489, 495 (Tenn.
1997); see also State v. Carico, 968 S.W.2d 280, 284-85 (Tenn. 1998).




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        In the case before us, the delay between the date of the offense and instigation of the
accusatorial process was slightly in excess of fourteen months. This delay does not approach the
periods of delay in Gray (42 years), Utley (5 years), or Carico (7 years). Further, the State’s reason
for delay was to protect the identity of the undercover agent, thereby allowing the operation she was
conducting to continue. The defendant has failed to demonstrate prejudice or any effort by the State
to gain a tactical advantage by delay. The defendant complains of his personal lack of memory, but
does not allege the existence of any witnesses who were unavailable due to the delay. It will not
avail the defendant to complain that the State preserved records of the offense by means of written
notes or tape recordings. The undercover agent’s testimony was forthright, and her recall was
unimpeached. We conclude that the defendant’s claim of a due process violation is defeated by his
failure to demonstrate prejudice due to the delay in beginning the prosecution.

                                              Sentence

        The defendant contends that his sentence was excessive and that an alternative sentence was
proper. This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

      The trial court herein followed the statutory directives, and our review is de novo with a
presumption of correctness. The defendant, as the appealing party, must show that the sentence is
improper. See Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Comments.

        Having been previously convicted of two felonies, the defendant was sentenced as a Range
II, multiple offender. See Tenn. Code Ann. § 40-35-106.

        The defendant had received a suspended sentence of one year on each count on his prior
felony convictions. On the date of this offense, the defendant was on supervised probation stemming
from his convictions entered in 2000 for possession of a weapon and possession of Schedule VI
drugs with intent to sell.

       The trial court applied three enhancement factors: (1) the defendant had a previous history
of criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range; (8) the defendant had “a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community;” and (13)(C) this felony was committed
while on probation from the felony convictions in 2000. See Tenn. Code Ann. §40-35-114(8),
(13)(C) (1997). The trial court next expressed a need for general deterrence, applying Tennessee
Code Annotated section 40-35-102(3)(A), based on the trial judge’s observation that the sale of
drugs was a serious crime in the community. The trial judge noted that the defendant’s crime was



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based on intentional conduct for financial gain and that the defendant had previously engaged in
similar conduct, all of which the trial court deemed as a need for a deterrent sentence.

        Next, the trial court looked to sentencing considerations of Tennessee Code Annotated
section 40-35-103(1)(A), (B), and (C), and found that confinement was necessary due to the
defendant’s long history of criminal conduct and for deterrence purposes, and that less restrictive
measures had been ineffective as applied to the defendant. As a Range II, multiple offender, the
defendant was not presumed a favorable candidate for alternative sentencing. See Tenn. Code Ann.
§ 40-35-102(6). The defendant had advanced as a mitigating factor that the defendant’s conduct
neither caused nor threatened bodily injury. The trial judge did not recognize this as a mitigating
factor but stated that if it were, it would not affect the sentence. Based on the trial evidence,
sentencing hearing, presentence report, statements of the defendant, arguments by counsel, principles
of the sentencing act and the enhancing factors, the trial court enhanced the presumptive sentence
of two years to the maximum of four years and imposed a $3000 fine.

        From our review of the record, particularly the pre-sentence report, we conclude that
application of enhancement factor of Tennessee Code Annotated section 40-35-114(8) (1997) was
in error. The commission of the present offense for which a defendant is being sentenced may not
be used to make factor (8) applicable. State v. Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App.
1995). Although the record reveals the defendant was placed on supervised probation for a
conviction in 1994, there is no indication of any failure to comply with the probation terms.

        Having concluded that factor (8) was improperly applied, there remains two enhancement
factors. The weight to be afforded these factors is left to the trial court’s discretion so long as it
complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported on the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        As previously noted, the defendant was not a presumptively favorable candidate for
alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). However, since the sentence imposed
was less than eight years, the defendant was eligible for probation. Tenn. Code Ann. § 40-35-303(a)
(2000). The trial court considered both the need for deterrence and the defendant’s long record of
criminal conduct and found that the defendant had not demonstrated that probation would best serve
his or the public’s interests. We affirm the sentence as imposed.




                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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