        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 12, 2014

               STATE OF TENNESSEE v. GARY BRIAN BERRY

                Appeal from the Circuit Court for Hickman County
             Nos. 12-5068CR, 12-5135CRA      Timothy L. Easter, Judge




              No. M2014-00043-CCA-R3-CD - Filed September 8, 2014


The defendant, Gary Brian Berry, appeals his Hickman County Circuit Court guilty-pleaded
convictions of manufacturing methamphetamine, possession of methamphetamine with the
intent to sell, and four counts of promoting the manufacture of methamphetamine, claiming
that the 12-year sentence imposed by the trial court is excessive. We affirm the judgments
of the trial court.

            Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Richard Boehms, Duck River, Tennessee, for the appellant, Gary Brian Berry.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Sean Duddy, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              The defendant entered pleas of guilty in case number 12-5068CR to four counts
of promoting the manufacture of methamphetamine, a Class D felony, and in case number
12-5135CRA to one count of manufacturing .5 grams or more of methamphetamine, a Class
B felony, and one count of possession with intent to sell .5 grams or more of
methamphetamine, also a Class B felony. The State agreed that the sentences imposed for
each of the defendant’s convictions in both cases should be served concurrently. The State
also agreed to dismiss the remaining charges in each of the indictments and to dismiss the
charges against the defendant contained in the indictment in case number 12-5067CRB.
              At the guilty plea submission hearing, the prosecutor recited the following
statement of facts for case number 12-5068CR:

                     Your Honor, had this case proceeded to trial the State
             would show that on the 26th day of October 2011, agents with
             the . . . Drug Task Force did conduct an interview with the
             defendant while he was in custody in Hickman County Jail with
             regard to purchases of Sudafedrin [sic] that they had determined
             the defendant had been making. The agents did activate a
             digital recorder to record this interview. . . . Agent Jones asked
             the defendant if the Sudafedrin [sic] pills and other components
             used to manufacture Methamphetamine were for himself or if he
             was buying them for someone else. The defendant stated they
             were for someone else and that he could sell a box of Sudafedrin
             [sic] for $50 a box. . . . He could not recall, but he had begun
             buying these about two – two and a half years prior to this
             interview due to a developing Methamphetamine habit, and that
             on occasions instead of receiving money for the Sudafedrin [sic]
             boxes, he would actually . . . receive back a quantity of
             Mehtamphetamine. . . .

                    ....

                    . . . . Defendant did answer that the pills were delivered
             back to here in Hickman County to be used for the production
             of Methamphetamine.

                    That would amount to the State’s proof along with
             signature log showing that the defendant had, indeed, purchased
             the Sudafedrin [sic] on the dates contained in the indictment.

             The prosecutor recited the following statement of facts for case number 12-
5135CRA:

             Your Honor, had this case proceeded to trial the State would
             show that on the 3rd day of March 2012, . . . Deputy Nordan
             with the Hickman County Sheriff’s Department, had gone to the
             residence of 1694 . . . Highway 100 located here in Centerville,
             Hickman County, Tennessee, to serve a warrant on an individual
             . . . other than the defendant . . . when Deputy Nordan

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approached the door of that residence he immediately detected
an odor he knew to be consistent with the manufacture of
Methamphetamine. On knocking on the door the defendant . .
. did open the door. At that point due to the exigent danger
associated with the process for m anufacture of
Methamphetamine, Deputy Nordan did ask the . . . defendant to
step out, did detain the defendant at that point. . . . There was a
conversation with the defendant with regard to consent to a
search of the residence, that consent was granted.

       Prior to entering into the residence, Agent Ashmore . . .
did have a conversation with the defendant with regard to what
he might find in the residence. . . . The defendant told Agent
Ashmore that it was a one bottle cook and that all the items were
in the bathroom. He said he only cook[ed] with one 15-count
box of Sudafedrin [sic].

       . . . At that point the defendant did state that he had a
knife and Deputy Nordan ask[ed] if he could remove the knife
from his pocket. Removing that knife from his pocket he did
retrieve . . . a plastic bag of a white substance which was later
determined to be Methamphetamine.

       ....

        . . . . Agent Ashmore did make entry into the residence .
. . and did discover the following evidence inside the bathroom,
a gas generator in the bathtub, Coleman fuel, a partial cold pack
of ammonium nitrate, a 2-liter cook vessel, 32-ounce of liquid
lightening, Roman drain cleaner, battery containing trash which
involves strip lithium batteries and an empty Sudafedrin [sic]
box, measuring glass, filter cups, coffee filters, pliers. Agent
Ashmore also discovered digital scales, meth pipe, aluminum
foil, Zip lock bags.

               . . . . [T]he defendant stated that he was behind in
his bills and his plan was to sell the Methamphetamine for the
purpose of getting caught up on his bills.

At the sentencing hearing, neither party presented any proof, and both indicated

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an intent to rely on the findings in the presentence report. That report established that the 42-
year-old defendant had at least 15 prior convictions, most of them misdemeanors and many
for driving-related offenses. Notably, the defendant had two felony convictions and five
convictions that involved the possession of drugs. The defendant also had two probation
violations.

               In arriving at the 12-year effective sentence, the trial court applied
enhancement factors for the defendant’s previous criminal history and for his being on
probation at the time of some of the offenses. The court imposed a sentence of four years
for each of the defendant’s convictions of promoting the manufacture of methamphetamine,
a sentence of 12 years for the defendant’s conviction of manufacturing .5 grams or more of
methamphetamine, and a sentence of 12 years for the defendant’s conviction of possession
of .5 grams or more of methamphetamine with the intent to sell. The court determined that
the 12-year sentence rendered the defendant ineligible for probation. The court observed that
a community corrections sentence would be appropriate if the defendant had “an alcohol or
drug abuse problem that could be substantiated.” The court concluded, however, that
because the only evidence of the defendant’s claimed drug addiction was his own self-
serving statement contained in the presentence report, the court would “put[] very little
weight” on the defendant’s need for drug rehabilitation. The court noted that the defendant’s
previous probation revocations militated against imposing a sentence involving release into
the community. In consequence, the trial court ordered the defendant to serve the entirety
of the 12-year effective sentence in the Department of Correction.

               In this timely appeal, the defendant does not challenge the imposition of a fully
incarcerative sentence but argues that the 12-year sentence was “excessively lengthy” given
that the defendant’s conduct neither caused nor threatened serious bodily injury. We need
not labor over the defendant’s claim because “a trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” State v. Bise, 380 S.W.3d
682, 706 (Tenn. 2012). Nothing in the record suggests that the trial court in this case “wholly
departed from” the Sentencing Act. To the contrary, the record reflects that the trial court
considered all the relevant principles associated with sentencing, including all of the
enhancement and mitigating factors, when imposing the sentence in this case.

              Accordingly, the judgments of the trial court are affirmed.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE



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