         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 December 18, 2007 Session

           VINCENT TRACY MORTON V. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Williamson County
                Nos. I-8424, I-8428-B, and I-8430-C  Russ Heldman, Judge



                     No. M2007-00900-CCA-R3-CD - Filed May 14, 2008



The defendant, Vincent Tracy Morton, entered guilty pleas to three counts of delivery of more than
.5 gram of cocaine for resale, Class B felonies, and was sentenced to consecutive eleven year Range
I sentences for a total effective sentence of thirty-three years. The defendant did not appeal the
sentencing determination. Thereafter, the defendant filed a timely petition for post-conviction relief
and the court, by agreement of the parties, granted a delayed appeal pursuant to Tennessee Code
Annotated section 40-30-113. In this appeal as of right, the defendant asserts that the trial court
imposed sentences that are excessive in both length and manner of service. The state contends that
the trial court imposed appropriate sentences. Following our review, we affirm the judgments of the
trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and ALAN E. GLENN , JJ., joined.

Eugene J. Honea, Franklin, Tennessee, attorney for appellant, Vincent Tracy Morton.

Robert E. Cooper, Jr., Attorney General & Reporter; Jennifer Smith and Andrew Hamilton Smith,
Assistant Attorneys General; Ronald L. Davis, District Attorney General; Christina Goodson and
Sean B. Duddy, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.

                                             OPINION

        The record reflects that the defendant entered his guilty pleas to the June 2003 offenses on
July 14, 2004, with sentencing to be determined by the trial court at a later date. At the September
8, 2004, sentencing hearing, the trial court imposed sentences of twelve years for each count based
upon its finding of enhancement factors found in Tennessee Code Annotated section 40-35-
114(2),(9),(11), & (17) (2003). The trial court did not give any weight to the defendant’s proposed
mitigating circumstances. The trial court further found that the defendant was a professional
criminal and ordered the sentences to be served consecutively to one another, for a total effective
sentence of thirty-six years. One day later, before the filing of the judgments of conviction, the trial
court informed the parties via letter that he would reduce each sentence to eleven years upon
reconsideration of the weight to be given the defendant’s mitigating factor of remorse. The record
reflects that judgments of eleven years each to be served consecutively were filed on October 11,
2004. Counsel representing the defendant throughout the guilty plea and sentencing hearing failed
to appeal the trial court’s sentencing determination.

        On March 28, 2005, the defendant filed a timely petition for post-conviction relief alleging
the ineffective assistance of counsel. By the agreement of the parties, the post-conviction court
granted this delayed appeal on March 26, 2007. A timely notice of appeal was filed on April 3,
2007.

                                                   ANALYSIS

                                 Waiver of Jury Sentencing Determination

         Initially, a brief discussion of the history of the jurisprudence related to judicial fact-finding
at sentencing hearings is relevant to this case. At the time of the defendant’s guilty pleas, the
defendant waived his right to have a jury determine the existence of enhancement factors beyond a
reasonable doubt. Thus, the sentencing hearing in this case proceeded to a bench trial wherein the
trial court made findings beyond a reasonable doubt regarding the existence of enhancement factors
it applied to arrive at the length of the defendant’s sentences. At the time of the defendant’s
sentencing hearing in September 2004, the sentencing schemes of states employing judicial fact-
finding of enhancement factors to increase a defendant’s sentence beyond the statutory minimum had
recently undergone much scrutiny in the wake of the June 24, 2004, United States Supreme Court
decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). In Blakely, the Supreme
Court ruled that a defendant has a Sixth Amendment right to a jury determination beyond a
reasonable doubt of any facts, other than a prior conviction, used to increase the penalty of any
crime beyond the statutory minimum. Our supreme court resolved this issue as it relates specifically
to Tennessee’s sentencing scheme on October 9, 2007, in State v. Gomez, 239 S.W.3d 733 (Tenn.
2007) (“Gomez II”). Our supreme court held that the holding in Blakely is applicable to our state,
resolving the question of utilizing judicial fact-finding to enhance a defendant’s sentence beyond the
statutory minimum.1

        Relevant to the defendant’s waiver of jury determination of sentencing, the record reflects
that the defendant signed a waiver of rights related to sentencing at the time of his guilty plea. The
document notes that the defendant, “after consultation with counsel, waives whatever rights exist


         1
            In an effort to correct the potential problem in our prior sentencing scheme, on June 7, 2005, the General
Assembly amended Tennessee Code Annotated sections 40-35-102(6), -114, -210, and -401. See 2005 Tenn. Pub. Acts
ch. 353, §§ 1, 5, 6, and 8. However, these amendments are inapplicable to the defendant’s appeal because the defendant
was arrested, indicted, and sentenced prior to these amendments.

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under the Sixth Amendment and the principles announced by the Supreme Court in Blakely.” The
written waiver further specifies that the defendant waives his right to have a grand jury determine
any facts establishing a sentence as well as his right to have a jury determine beyond a reasonable
doubt the existence of any facts establishing a sentence. Furthermore, at the July 14, 2004, guilty
plea submission, the trial court questioned the defendant extensively regarding his understanding of
the waiver relative to sentencing determinations and found that the defendant had knowingly,
understandingly and voluntarily waived his right to have a jury find facts necessary to enhance his
sentences beyond the statutory minimum. Furthermore, we note that the defendant has not raised
any issue relative to Blakely on appeal. For these reasons, we conclude that the defendant’s waiver
of a jury determination of his sentences was effective.

                                Application of Enhancement Factors

        At the September 8, 2004 sentencing hearing, the trial court found beyond a reasonable doubt
the existence of the following enhancement factors found in Tennessee Code Annotated section 40-
35-114(2),(9),(11), & (17) (2003):

       (2) the defendant has a previous history of criminal convictions or criminal behavior,
       in addition to those necessary to establish the appropriate range;

       (9) the defendant, before trial or sentencing, failed to comply with the conditions of
       a sentence involving release into the community;

       (11) the defendant had no hesitation about committing a crime when the risk to
       human life was high; and

       (17) the crime was committed under circumstances in which the potential for bodily
       injury to a victim was great.

In arriving at the sentencing determination, the trial court placed considerable significance upon
enhancement factor nine in light of the defendant’s parole status when the present offenses were
committed. The trial court commented that it “place[d] great weight on that factor in light of the
prior record of the defendant and the trust he was placed on in being allowed the largess of parole.”
Additionally, the trial court found that the defendant was both a professional criminal who had
knowingly devoted his life to criminal acts as a major source of livelihood and a dangerous offender
whose behavior indicates little or no regard for human life in ordering that the eleven year sentences
were to be served consecutively to one another. Tenn. Code Ann. § 40-35-115(b)(1) and (4). On
appeal, the defendant argues that the trial court’s findings relative to both the length of sentence and
manner of service are not supported by the record. The state contends that the sentences are
appropriate.

      Typically, 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)


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(2003). As the Sentencing Commission Comments to this section note, on appeal the burden is on
the defendant to show that the sentence is improper. This means that if the trial court followed the
statutory sentencing procedure, made findings of fact that are adequately supported in the record, and
gave due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.1991). However, when as in
this case a defendant waives his right to a jury determination of facts that determine the length of his
sentence and proceeds to a bench trial on the issue of punishment, the standard for review by an
appellate court is analogous to that of determining whether there is sufficient evidence to support a
conviction itself. In other words, the appellate court must consider the application of enhancement
factors to determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the [existence of enhancement factors]
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); Tenn. R. App. P. 13(e).

        In analyzing the overall propriety of a particular sentence, “the presumption of correctness
which accompanies the trial court's action 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). In this respect, for the purpose of meaningful
appellate review:

       [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 his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-102, -103, -210 (2003); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d
229, 236-37 (Tenn.1986).

       The record reflects that the defendant’s criminal history consists of several misdemeanor
convictions. Additionally, the defendant was convicted of aggravated assault and carrying a weapon
on school property and was sentenced to four years suspended after the service of one hundred and
twenty days. Subsequently, he violated the terms of his probation by testing positive for cocaine and
marijuana and was ordered to serve his sentence. The defendant was paroled from that sentence in



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June 2002 with a sentence expiration date of July 30, 2003. Thus, the defendant was on parole when
the present offenses were committed in June 2003.

        Agent Leonardo Zollicoffer of the Williamson County Sheriff’s Department testified that he
came into contact with the defendant through his employment with the 21st Judicial District Drug
Task Force when, on three separate occasions in June 2003, Agent Zollicoffer conducted drug buys
from the defendant through a confidential informant. He stated that the defendant was “the direct
connection to the drug supply for the area.” He stated that the defendant obtained drugs from two
different dealers. Agent Zollicoffer opined that the whole neighborhood is victimized by drug
dealing because “if a drug deal go[es] bad, innocent people are shot.”

        The forty-five year old defendant testified at the sentencing hearing that he was last employed
at Centennial High School as a night janitor and worked there until he was convicted of the
aggravated assault and weapons charge. He stated that he qualified for disability benefits after being
paroled from prison and that his disability related to high blood pressure, cirrhosis of the liver, and
back pain. Relevant to the present offenses, the defendant admitted that people would come by his
house and he would “just go and try to find [drugs] for them.” He stated that he would do this about
once or twice a month. He admitted that he committed the drug offenses to “just give [him] a little
food because [his] money ran out during the month.” The defendant also expressed remorse for his
actions.

        On cross-examination, the defendant acknowledged that he was convicted of three counts of
drug dealing that occurred within the same month and attempted to explain his contrary direct
testimony by conceding that he had sold drugs “maybe three times” a month. He admitted that drug
dealing is dangerous, but he denied knowledge that any of his associates carried guns. Likewise, the
defendant admitted that selling drugs was a major source of his livelihood. However, he further
stated that he only received ten to twenty dollars for each drug transaction.

        Relative to the sufficiency of the evidence to support the trial court’s findings regarding
enhancement factors, the evidence shows that the defendant has a ten year history of criminal
convictions. After being indicted for the present offenses, the defendant was arrested and convicted
of misdemeanor possession of drug paraphernalia. There is also proof of failed attempts at probation
and the present offenses were committed while the defendant was on parole. Therefore, we conclude
that the evidence is sufficient to support the application of enhancement factors regarding the
defendant’s history of convictions and failure to comply with conditions of release. Tenn. Code
Ann. § 40-35-114(2) and (9) (2003).

        In determining the propriety of the application of factors (11) and (17), we note that this court
has held that “the nature and character” of cocaine offenses alone is not sufficient to allow
application of the enhancement factors involving “no hesitation about committing a crime when the
risk to human life was high” and “the crime was committed under circumstances in which the
potential for bodily injury was great” because the nature and character of such offenses has already
been taken into consideration by the legislature in classifying cocaine as a Schedule II drug and


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cocaine offenses as either Class A, B or C felonies. State v. Keel, 882 S.W.2d 410, 419-21 (Tenn.
Crim. App. 1994). Therefore, this court has held that “without additional evidence to support a
finding that the offenses involved specific risks” relative to these enhancement factors, the factors
should not be applied. State v. Anthony Darden, No. 01C01-9604-CR-00140, 1997 WL 672648, at
*2 (Tenn. Crim. App. Oct. 30, 1997).

        In this case, Agent Zollicoffer described that drug sales were dangerous to the entire
community due to the associated risk that drug dealers carry weapons and innocent people are
victimized when caught in “drug deals gone bad.” The evidence in this case also reflects that the
drug transactions occurred in the daylight in public areas such as the Kentucky Fried Chicken
restaurant. Although the defendant denied knowledge of any persons involved carrying weapons,
he admitted that his activities were dangerous and brought risk to those involved. We conclude that
while this additional evidence is marginal, in the light most favorable to the state, the evidence
remains sufficient to support the application of these enhancement factors. We further note that the
trial court placed substantial emphasis on the defendant’s criminal history and failed attempts at
probation and parole in arriving at the eleven year sentence for each offense. Therefore, we conclude
that the trial court’s imposition of eleven year sentences is affirmed.

        Directing our analysis to the trial court’s imposition of consecutive sentences, the record
shows that the trial court found that the defendant is a professional criminal who has knowingly
devoted his life to criminal acts as a major source of livelihood and that he is a dangerous offender.
Tenn. Code Ann. § 40-35-115(b)(1) and (4). While noting the required factors of State v. Wilkerson,
905 S.W.2d 933 (Tenn. 1995), regarding the dangerous offender finding, the trial court stated that
the evidence supported the factors but failed to make specific findings as is required by Wilkerson.
However, it is unnecessary for us to address this error because the evidence is sufficient to show, by
the defendant’s own admissions, that the defendant qualifies as a professional criminal and this
finding alone supports the imposition of consecutive sentences. Therefore, the trial court’s
imposition of consecutive sentences is affirmed.

                                          CONCLUSION

        We conclude that the defendant knowingly, understandingly and voluntarily waived a jury
determination of facts necessary to establish sentencing. We further conclude that there is sufficient
evidence to support the application of enhancement factors in this case and that all were
appropriately applied to the three counts of delivery of more than .5 gram of cocaine for resale.
Furthermore, we conclude that the trial court properly found that the defendant was a professional
criminal, warranting the imposition of consecutive sentences. Therefore, the judgments of the trial
court are affirmed.

                                                       ___________________________________
                                                       D. KELLY THOMAS, JR., JUDGE




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