        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE             FILED
                        MARCH 1999 SESSION
                                                  September 24, 1999

                                                  Cecil Crowson, Jr.
                                                 Appellate Court Clerk
WILLIE WITHERSPOON,         *    C.C.A. # 01C01-9809-CC-00363

           Appellant,       *    ROBERTSON COUNTY

VS.                         *    Honorable Robert W. Wedemeyer,
                                 Judge

STATE OF TENNESSEE,         *    (Sale of Schedule II Controlled
                                 Substance - 2 counts)
           Appellee.        *



FOR THE APPELLANT:               FOR THE APPELLEE:

MICHAEL R. JONES (On Appeal)     JOHN KNOX WALKUP
District Public Defender         Attorney General & Reporter
110 Public Square
Springfield, TN 37172            KIM R. HELPER
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 JOHN WESLEY CARNEY, JR.
                                 District Attorney General

                                 B. DENT MORRISS
                                 Assistant District Attorney
                                 500 South Main Street
                                 Springfield, TN 37172




OPINION FILED: _______________



AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                    OPINION

       The defendant, Willie Witherspoon, files this delayed appeal from a

Robertson County jury verdict convicting him of two sales of a Schedule II

controlled substance. One sale, a Class B felony, involved 0.5 or more grams of

cocaine, and the other sale, a Class C felony, involved less than 0.5 gram of

cocaine.



       The defendant was sentenced to the Department of Correction for eleven

years as a Range I standard offender for the Class B felony and nine years as a

Range II multiple offender for the Class C felony. These sentences were

consecutive to each other and consecutive to a sentence from a prior conviction.

The defendant was found guilty on August 7, 1996 and sentenced on December

6, 1996. On October 16, 1997, the defendant filed a petition for post-conviction

relief which alleged that his trial counsel had promised he would pursue a direct

appeal of his sentence. Trial counsel filed no appeal. On August 14, 1998, the

trial court entered an order granting this delayed appeal from his sentences.



                                  BACKGROUND

       The first witness at trial, Joe Macleod, was a police officer assigned to the

19th Judicial Drug Task Force (DTF). Macleod testified that the DTF had

established credibility for the confidential informant participating in the instant

case by that informant’s previous participation in over 60 other investigations.

Macleod supervised both purchases from the defendant, and his testimony

described visual surveillance and other specifics of the investigation.



       The informant testified that she ordered a gram of cocaine from the

defendant. After calling the defendant and placing the order, the informant met

the defendant in a parking lot and exchanged money for the cocaine. Several

days later, the informant called the defendant and ordered a “sixteenth,” or one-

                                          -2-
sixteenth of an ounce of cocaine. The defendant again met her at the parking lot

and exchanged the cocaine for money. The state presented both videotaped

and audiotaped evidence of the transactions to the jury.



        At the sentencing hearing, the trial court noted that the defendant had

pleaded guilty in December 1994 to a Class B cocaine felony, receiving eight

years in Community Corrections as a Range I offender. The trial court also

noted the defendant’s Class E felony conviction for a Schedule VI violation in

1981.



        Officer Lemley of the DTF testified at the sentencing hearing. He testified

that the defendant apparently held no regular jobs during Lemley’s two-year

tenure with the DTF. However, the defendant accumulated substantial assets,

including his residence and other realty; a race car; a “dually” pickup truck; a

Corvette; and approximately thirty-thousand dollars worth of tools.



        The defendant testified at the sentencing hearing and claimed that he left

his last employer in 1992 with “numerous [sic] amounts of money that [he] did

not have to have.” He performed odd jobs and sold drugs to support some of his

fourteen children. The defendant testified that he had served approximately

eleven months on Community Corrections when he was arrested for the charges

in the instant case. His own cocaine problem “played a part” in his selling

cocaine.



                                     ANALYSIS

                               Admission of Evidence

        During the trial, the state’s proof comprised:

        1. The testimony of Officer Macleod, establishing the DTF’s three-
           year investigation of the defendant;
        2. Officer Macleod’s testimony regarding procedure for
           establishing confidential informant reliability;

                                         -3-
       3. That officer’s testimony regarding the DTF policy of targeting
          drug dealers, versus users, and regarding the defendant’s
          assets; and
       4. Testimony that the defendant was responsible for all crime in
          Robertson County. 1


The defendant asserts that admission of this evidence constituted “serious,

substantial, egregious and fundamental errors which [sic] strike and destroy the

judicial proceedings,” and he also asserts that this evidence was totally irrelevant

and intended solely to “poison the jury.” See Tenn. R. Evid. 401, 402, 403. The

defendant did not, however, object to the contested evidence at trial. See Tenn.

R. App. P. 36(a) (This Court is not required to provide relief “to a party . . . who

failed to take whatever action was reasonably available to prevent or nullify the

harmful effect of an error.”); see also State v. Killibrew, 760 S.W.2d 228, 235

(Tenn. Crim. App. 1988) (applied Rule 36(a) when defendant failed to object to

the admission of evidence).



        This issue is waived. The defendant did not file a motion for new trial

within thirty days of the order entering his sentence. See Tenn. R. Crim. P.

33(b); Tenn. R. Crim. P. 45(b); State v. Martin, 940 S.W.2d 567, 569 (Tenn.

1997) (The provision for filing a timely motion for new trial is mandatory and may

not be extended). “[T]he failure to timely file a motion for a new trial results in

the waiver of those issues which may result in the granting of a new trial.” State

v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989); see also Tenn. R.

App. P. 3(e) (“Provided, however, in all cases tried by a jury, no issue presented

for review shall be predicated upon error in the admission or exclusion of

evidence . . . unless the same was specifically stated in a motion for new trial;

otherwise such issues will be treated as waived.”). Further, the trial court’s Order

granting a delayed appeal restricts that appeal to the issue of the defendant’s

sentence and bars any consideration of evidentiary issues.


   1
     The relevant testimony actually addressed the propensity for violence possessed by some of
the defe ndant’s s ons.

                                              -4-
       The defendant asserts, however, that these allegedly erroneous

admissions affected his substantial rights and thereby merit our review. See

Tenn. R. Crim. P. 52(b) (“An error which [sic] has affected the substantial right of

the accused may be noted at any time . . . where necessary to do substantial

justice.”). A panel of this Court held that such a plain error review must be

predicated on an “especially egregious error that strikes at the fairness, integrity

or public reputation of judicial proceedings.” State v. Adkisson, 899 S.W.2d 626,

639 (Tenn. Crim. App. 1994). The defendant has not demonstrated that the

contested evidence reaches this standard: This evidence was not so unfairly

prejudicial as to “destroy the judicial proceedings.”



                                   SENTENCING

       The defendant also submits two challenges to his sentence. He asserts

that the trial court both erroneously enhanced his sentence and erroneously

imposed consecutive sentencing. When an accused challenges the length or

manner of service of a sentence, this Court reviews the record de novo “with a

presumption that the determinations made by the court from which the appeal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d). The presumption of

correctness is contingent on the record indicating both the lower court’s reasons

for arriving at a sentencing decision and compliance with the statutory

sentencing guidelines and principles. See State v. Wilkerson, 905 S.W.2d 933,

934 (Tenn. 1995). The appellant bears the burden of showing that the

sentencing was improper. See Tenn. Code Ann. § 40-35-401(d) sentencing

comm’n comments; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App.

1996). The following considerations apply: (1) the evidence received at trial and

at the 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 involved; (5) any statutory mitigating or

enhancement factors; (6) any statement made by the accused on his own behalf;


                                         -5-
and (7) the potential or lack of potential for rehabilitation or treatment. See

Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863

(Tenn. Crim. App. 1987).



                               Enhancement factors

       We find no reversible error in the trial court’s application of three

enhancement factors to the defendant’s sentences: (1) “[P]revious history of

criminal conviction or criminal behavior in addition to those necessary to

establish the appropriate range”; (2) “a previous history of unwillingness to

comply with the conditions of a sentence involving release in the community”;

and (3) commission of the offenses while on release status from a prior felony

conviction. See Tenn. Code Ann. § 40-35-114 (1), (8), (13)(e). The defendant

contests the trial court’s applying enhancement factor (8), regarding “a previous

history of unwillingness to comply with the conditions of a sentence involving

release in the community.” Tenn. Code Ann. § 40-35-114(8). Commission of an

offense, and subsequent conviction for that offense, may not constitute a basis

for enhancing the sentence for that offense under factor (8). See State v.

Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995). Therefore, conviction for

the instant two offenses can not support enhancement of their sentences.



       However, the defendant testified that he had used drugs in violation of his

Community Corrections sentence. This testimony properly invokes factor (8).

Further, the defendant admitted selling drugs “many times.” These multiple

sales, independent from the two transactions in the instant case, demonstrate

unwillingness to comply with community release.



       The trial court assigned “very slight weight” to two findings: the

defendant’s testifying candidly and his providing for his family. See Tenn. Code

Ann. § 40-35-113 (13), (7). We respectfully disagree with the conclusion that


                                         -6-
these factors apply to the defendant’s benefit. First, a defendant’s testifying

under oath should not merit application of the “catch-all” mitigating factor for

speaking the truth. See Tenn. Code Ann. § 40-35-113 (13). Further, to invoke

factor (7), the statute explicitly requires that a defendant sought necessities for

his family when that defendant violated a law. The record does not establish that

Corvettes, real estate, and race cars were necessary to support the defendant’s

family.


                              Consecutive sentencing

          A trial court in its discretion may impose consecutive sentencing on

multiple convictions under certain circumstances. See Tenn. Code Ann. § 40-

35-115. The trial court found, by a required preponderance of the evidence, that

the defendant “[was] a professional criminal who has knowingly devoted such

defendant’s life to criminal acts as a major source of livelihood.” Tenn. Code

Ann. § 40-35-115(b) (1). Although the record supports this specific finding, the

Tennessee Supreme Court has imposed a proportionality requirement for

consecutive sentencing:


          [T]he imposition of consecutive sentences on an offender found to
          be a dangerous offender requires, in addition to the application of
          the general principles of sentencing, the finding that an extended
          sentence is necessary to protect the public against further criminal
          conduct by the defendant and that the consecutive sentences must
          reasonably relate to the severity of the offenses committed.


          State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). This holding

specifically addresses cases involving consecutive sentencing based on a

defendant’s classification as a dangerous offender. However, authority exists for

the proposition that these findings are necessary for consecutive sentencing on

other bases. See State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995)

(required these additional findings for consecutive sentencing based on the trial

court finding the defendant a professional criminal). But see State v. Lane, No.

03C01-9607-CC-00259 (Tenn. Crim. App. filed June 18, 1997, at Knoxville)


                                          -7-
(appeal argued before Tennessee Supreme Court, January 1999) (“It is not

cogently clear, however, that Wilkerson applies to any case other than one

involving the sentencing of a dangerous offender under § 40-35-115(b)(4). The

opinion in Wilkerson may be fairly construed to apply only to consecutive

sentencing of dangerous offenders.”)



       Because the trial court did not specifically articulate these findings, our

review is de novo regarding the Wilkerson requirements. The record contains

sufficient proof for a finding that consecutive sentencing is appropriate. The

defendant testified that he had sold cocaine on many occasions and that he was

“addicted” to selling cocaine. He continued to deal drugs while on Community

Corrections and conceded that he realized that each sale of cocaine “would

contribute to someone’s habit.” W e therefore conclude that consecutive

sentencing is necessary to protect the public from further criminal conduct by this

defendant. We further conclude that consecutive sentencing is reasonably

related to the severity of the offenses and is congruent with general principles of

sentencing. See State v. Baker, No. 01C01-9711-CC-00537 (Tenn. Crim. App.

Filed April 9, 1999, at Nashville).



                                      CONCLUSION

       We AFFIRM the trial court’s judgment.




                                           _____________________________
                                           JOHN EVERETT W ILLIAMS, Judge

CONCUR:




___________________________
DAVID H. WELLES, Judge


                                          -8-
____________________________
JOE G. RILEY, Judge




                               -9-
