        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 13, 2011

         STATE OF TENNESSEE v. DERRICK LAMONT PARRISH

              Direct Appeal from the Circuit Court for Bedford County
                         No. 16976      Lee Russell, Judge


               No. M2010-02589-CCA-R3-CD - Filed December 7, 2011


Following his guilty pleas to nine felonies, the appellant, Derrick Lamont Parrish, received
a total effective sentence of sixteen and one-half years incarceration in the Tennessee
Department of Correction. On appeal, the appellant challenges the length of the sentences
imposed by the trial court. Upon review, we affirm the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
J AMES C URWOOD W ITT, J R., JJ., joined.

LaShawn A. Williams, Memphis, Tennessee, for the appellant, Derrick Lamont Parrish.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

        The appellant was charged in counts one through six of a multi-count indictment with
aggravated assault, in count seven with possession of a handgun by a felon, in count eight
with possession of a schedule VI drug with intent to sell, and in count nine with possession
of a schedule VI drug for delivery. Subsequently, the appellant entered a best-interest guilty
plea to all counts,1 with the length and manner of service of the sentences to be determined
by the trial court.

       At the guilty plea hearing, the State said that the proof at trial would have established
that on July 14, 2009, Christa Manning went to 139 Stonefield Circle to sell “an ounce of
marijuana to one of the victims of the aggravated assault.” The victim did not pay Manning,
and she went to the appellant, who had provided her the marijuana, for assistance in
collecting the $100 the victim owed. Thereafter, Manning and the appellant went to 139
Stonefield Circle. There were six individuals in the residence. After a dispute, the appellant
pulled a revolver and fired two shots at the group of people; both shots hit the house. Police
responded to the scene. They ultimately found the perpetrators and took Manning and the
appellant into custody. Vickie Allison, who lived at 212A Cedar River Road, gave police
consent to search the residence. Allison told police that the appellant asked to leave some
things at her residence, including a revolver and two Crown Royal bags containing
marijuana. The six-shot, .357 caliber revolver had four live rounds and two shell casings.
The Crown Royal bags contained 168.4 grams of marijuana. The appellant gave a statement
“essentially admitting to” firing a gun at the residence, but he contended that “he did not
intend to actually hurt anyone.” Regardless, the State maintained that “certainly his actions
caused those individuals to fear for their safety, especially when the gun was fired.” The
appellant claimed one of the Stonefield residents had a gun.

       At the sentencing hearing, the appellant’s father, Eddie L. Parrish, a disabled Vietnam
veteran, testified that the appellant was born June 19, 1977. The appellant graduated from
high school and attended barber college. Mr. Parrish said that the appellant was very
disciplined and had no major problems in school. Mr. Parrish maintained that he and the
appellant had a close relationship.

        Mr. Parrish stated that he had never been arrested, was a devout member of his
church, and did volunteer work. He said that the appellant was influenced by Mr. Parrish’s
life and that he regularly attended church services. Mr. Parrish said that while the appellant
was in jail, the youth of Mr. Parrish’s church wrote letters to him. The appellant responded
to the letters, admitting that he was incarcerated as a consequence of his actions and asking
the youth to trust their faith.

        Mr. Parrish acknowledged that the appellant had a drug problem and had been twice


        1
            An accused who wishes to plead guilty yet assert his innocence may enter what is known as a “best
interest” guilty plea. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). A trial court may accept such
a plea if the court is satisfied that there is a factual basis for the plea. See Dortch v. State, 705 S.W.2d 687,
689 (Tenn. Crim. App. 1985).

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treated for an addiction to crack cocaine. He said the treatment helped the appellant, but he
relapsed because of stress. Mr. Parrish said that on May 8, 2008, the appellant learned that
he had an eight-year-old daughter. He also had a fiancee who was pregnant with his son. The
appellant was unable to find work because of his prior criminal history, so Mr. and Mrs.
Parrish supported the appellant’s children. Mr. Parrish said that around late June 2008, he
noticed the appellant was depressed and frustrated because of his inability to find
employment and provide for his children. Mr. Parrish believed the appellant’s frustration
caused him to relapse and begin using cocaine again.

        Mr. Parrish said that he was shocked when he learned of the appellant’s involvement
in the instant offenses, maintaining that the appellant would not hurt anyone. He said that
the appellant would not have used a weapon if he had not been using drugs.

       He said that the appellant appeared to have learned from his mistakes during his
incarceration. He opined that release into a drug treatment program would be more
beneficial than further incarceration.

       Mr. Parrish stated that the appellant had “his first encounter with the law” when he
was about eighteen years old. He conceded that the appellant’s first “weapons conviction”
occurred when he was nineteen years old. Mr. Parrish acknowledged that he had been told
by the appellant’s drug counselor that the family was “enabling” the appellant.

        The appellant’s mother, Mildred Parrish, an eighth grade English teacher, testified that
the appellant’s family had been in counseling to learn about addiction. They also learned that
they should not enable the appellant to indulge in his addiction. She said that the appellant
was close to his daughter, his son, and his stepson and that he tried to stay away from drugs
because of the children. She also stated that the appellant had benefitted from treatment. She
opined that “punishment is not the answer [and that] rehabilitation needs to be in the form
of treatment.” She maintained that all of the appellant’s criminal actions were drug-related.

        The appellant read a statement to the court, acknowledging his addiction to drugs and
alcohol. He stated that his parents gave him a wonderful upbringing but that when he was
seventeen or eighteen years old, he made a poor choice and “started messing with drugs and
alcohol.” He said that those substances “made me stop being responsible and . . . do things
I didn’t want to do.” The appellant stated that when he was twenty-three or twenty-four years
old, he admitted himself for treatment at the Samaritan Center. He said that he began to learn
about drugs, to grow up, and to become closer to Jesus.

       The appellant said that after his treatment, his life went well for six months before he
relapsed into using drugs and committing “petty crimes.” Four or five years later, he

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underwent rehabilitation at the Tony Rice Center. He said that program “was better than the
first.” Afterward, the appellant “stayed clean for about a year and a half . . . longer than I
ever stayed clean in my life.” However, the appellant stopped attending meetings and began
using drugs again.

       The appellant said that if he were given a third opportunity for treatment, he would
“learn even more this time and be even stronger.” He said that after each stint at
rehabilitation, he “stayed clean longer and longer . . . [and] didn’t get in trouble near as
much.”

       The appellant said that when he committed the instant offenses, he was “not in [his]
right mind” because of drugs and alcohol. He expressed remorse and said he had not
intended to hurt anyone. The appellant stated that since his incarceration, he had reflected
on his actions and realized his mistakes.

       The appellant stated that he was concerned about the well-being of his children and
that he wanted to be released so he could support his family. He said that he had “learned
a lot of things about good wholesome living and that [he] need[ed] to have limits and
boundaries in [his] life.”

        At the conclusion of the proof, the trial court found that the appellant was a standard,
Range I offender. The trial court merged counts eight and nine because they were alternate
theories of the same crime. The court noted that the appellant was subject to a sentence of
three to six years for each Class C felony aggravated assault. See Tenn. Code Ann. § 40-35-
112(3). The appellant was also subject to a sentence of one to two years for the Class E
felony convictions for possession of a handgun and for possession of marijuana with the
intent to sell. See Tenn. Code Ann. § 40-35-112(5).

       The trial court sentenced the appellant to five years for each Class C felony conviction
and to one and one-half years for each Class E felony conviction. The court further ordered
that counts one and two were to be served concurrently, counts three and four were to be
served concurrently, counts five and six were to be served concurrently, and counts seven and
eight were to be served concurrently. The trial court then ordered that “[e]ach of those
clusters of two” were to be served consecutively for a total effective sentence of sixteen and
one-half years. On appeal, the appellant challenges the sentences imposed by the trial court.


                                         II. Analysis

       Appellate review of the length, range or manner of service of a sentence is de novo.

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See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and 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) evidence and information offered by the parties on enhancement and mitigating factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in
his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The
burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code
Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the trial
court adequately considered sentencing principles and all relevant facts and circumstances,
this court will accord the trial court’s determinations a presumption of correctness. Id. at (d);
Ashby, 823 S.W.2d at 169.

                                   A. Length of Sentences

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

              (1) The minimum sentence within the range of punishment is the
              sentence that should be imposed, because the general assembly
              set the minimum length of sentence for each felony class to
              reflect the relative seriousness of each criminal offense in the
              felony classifications; and

              (2) The sentence length within the range should be adjusted, as
              appropriate, by the presence or absence of mitigating and
              enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

       Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; State
v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s weighing of
various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”
Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence
within the applicable range so long as the length of the sentence is ‘consistent with the
purposes and principles of [the Sentencing Act].’” Id. at 343. “[A]ppellate courts are
therefore left with a narrower set of circumstances in which they might find that a trial court


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has abused its discretion in setting the length of a defendant’s sentence . . . [and are] bound
by a trial court’s decision as to the length of the sentence imposed so long as it is imposed
in a manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 345-46.

       The court found four enhancement factors: (1) that the appellant had an extensive
prior criminal history, (8) that he had previously failed to comply with the conditions of a
sentence involving release into the community, (10) that he had no hesitation in acting when
the risk to human life was high, and (13) that the offenses were committed while the
appellant was on probation. See Tenn. Code Ann. § 40-35-114(1), (8), (10), (13)(C).

        The appellant maintains that the trial court erred by applying enhancement factor (1).
Tenn. Code Ann. § 40-35-114(1). The appellant’s presentence report reflects that since the
appellant was nineteen years old, he has amassed one prior felony conviction and numerous
prior misdemeanor convictions. Specifically, over a fourteen-year period, the appellant was
convicted of casual exchange, nine counts of theft, three counts of possession of drug
paraphernalia, driving on a revoked license, three counts of criminal impersonation, reckless
aggravated assault, possession of cocaine, possession of a schedule IV drug, three counts of
resisting arrest, evading arrest, reckless driving, and a weapons offense. Further, the
appellant reported that he began smoking marijuana and “popping pills” when he was
seventeen years old, began using powder cocaine when he was nineteen years old, and began
using crack cocaine when he was twenty-three years old. The appellant said that he was
using two to three grams of crack cocaine on a daily basis until he was incarcerated for the
instant offenses. Accordingly, we conclude that the trial court did not err in applying this
enhancement factor.

        The appellant argues that the trial court erred in applying enhancement factor (10),
that the appellant had no hesitation about committing a crime when the risk to human life
was high, asserting that this enhancement factor is inherent in the offense of aggravated
assault. Tenn. Code Ann. § 40-35-114(10). Ordinarily, an enhancement factor may be
applied “[i]f appropriate for the offense and if not already an essential element of the
offense.” See Tenn. Code Ann. § 40-35-114. The trial court applied this enhancement
factor, noting “that’s not an element of this particular version of aggravated assault.”
However, the indictments reflect that the appellant was charged with aggravated assault by
causing the victims to “reasonably fear imminent bodily injury . . . [by] use or display [of]
a deadly weapon.” As the State acknowledges, this court has previously stated that
enhancement factor (10) “is inherent in the offense of aggravated assault [because i]t is
difficult to discern a situation in which an offense committed with a deadly weapon would
not necessarily entail a risk to human life.” State v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim.
App. 1994) (internal quotations omitted). The record does not reflect that anyone other than

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the named victims was endangered by the appellant’s conduct. Accordingly, we agree with
the appellant that the trial court erred in applying this enhancement factor to the aggravated
assault convictions.

        We note that the appellant’s presentence report reflects that the appellant was
previously granted probation and that his probation was revoked on at least five separate
occasions, justifying the application of enhancement factor (8). Tenn. Code Ann. § 40-35-
114(8). Additionally, the report reflects that on January 1, 2009, the appellant was convicted
of misdemeanor theft and received a suspended sentence of eleven months and twenty-nine
days; on July 9, 2009, the appellant was convicted of casual exchange and again received a
suspended sentence of eleven months and twenty-nine days. The appellant was on probation
for both of these offenses when the instant offenses occurred on July 14, 2009. Therefore,
the trial court correctly applied enhancement factor (13)(C).

        The appellant complains that the trial court erred in failing to apply mitigating factor
(3), that substantial grounds exist tending to excuse or justify the appellant’s criminal
conduct, though failing to establish a defense; mitigating factor (7), that the appellant was
motivated by a desire to provide necessities for the his family or himself; mitigating factor
(8), that the appellant was suffering from a mental or physical condition that significantly
reduced his culpability for the offense, and mitigating factor (13), that the appellant
expressed remorse and accepted responsibility for his crimes. Tenn. Code Ann. § 40-35-
113(3), (7), (8) and (13).

       The appellant contends that “mitigating factors (3) and (8) [are applicable] based upon
the Appellant’s drug addiction and mental state at the time of the commission of the offense.”
The trial court found that the appellant’s addiction to cocaine did not justify or excuse his
conduct. We agree. Further, the court noted that by statute, “the voluntary use of intoxicants
does not fall within the purview of [mitigating] factor [(8)].” See Tenn. Code Ann. § 40-35-
113(8). We conclude that the trial court did not err in refusing to apply mitigating factors (3)
and (8) based upon the appellant’s drug addiction.

        Regarding mitigating factor (7), that the appellant was motivated by a desire to
provide necessities for his family or himself, the appellant contends that the record reflects
that he sought odd jobs at the time of the offenses and was earning approximately $100 per
week by cutting hair. Tenn. Code Ann. § 40-35-113(7). He maintains that his guilty plea to
possessing drugs for resale and Mr. Parrish’s testimony that the appellant was frustrated by
his inability to get a job to support his family established his motivation to support his family.
However, the record belies the appellant’s contention. The appellant’s father testified that
he believed the appellant’s frustration in failing to obtain employment led the appellant to
relapse and start using drugs again. Mr. Parrish at no time testified that the appellant was

                                               -7-
selling drugs to support his family. The court found that there was no proof in the record that
the appellant committed the assaults or sold drugs “to provide necessities for his children.”
We conclude that the trial court did not err in finding that this mitigating factor was not
applicable.

        The appellant maintains that the trial court should have applied mitigating factor (13),
the “catch all factor,” because the appellant was remorseful and accepted responsibility for
his actions. Tenn. Code Ann. § 40-35-113(13). This court has previously stated that genuine
remorse may be entitled to consideration under mitigating factor (13). See State v.
Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995). In the instant case, the trial court
made no explicit finding regarding the appellant’s remorse. Regardless, given the strength
of the three enhancement factors that were correctly applied, we conclude the trial court did
not err in sentencing the appellant to five years for each Class C felony conviction and to one
and one-half years for each Class E felony conviction.

                                 B. Consecutive Sentencing

       Finally, the appellant argues that trial counsel erred in imposing consecutive
sentencing. Generally, “[w]hether sentences are to be served concurrently or consecutively
is a matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d
224, 230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b)
contains the discretionary criteria for imposing consecutive sentencing. See also State v.
Wilkerson, 905 S.W.2d 933, 936 (Tenn. 1995).

        In the instant case, the trial court found that the appellant was an offender whose
record of criminal activity is extensive, that the appellant is a dangerous offender, and that
the offenses were committed while on probation. See Tenn. Code Ann. § 40-35-115(2), (4),
and (6). The appellant complains that the record does not support the trial court’s finding
that his record of criminal activity is extensive. We disagree. The record demonstrates that
the appellant has a fourteen-year history of criminal activity, which includes one felony and
numerous misdemeanor convictions. Tenn. Code Ann. § 40-35-115(2). Additionally, there
is proof in the record that the appellant was on probation for theft offenses when the instant
offense was committed. Tenn. Code Ann. § 40-35-115(6). We conclude that the record
supports the imposition of consecutive sentencing.

        In order to find that a defendant is a dangerous offender, a court must also find that
(1) the sentences are necessary in order to protect the public from further misconduct by the
defendant and that (2) the terms are reasonably related to the severity of the offenses.
Wilkerson, 905 S.W.2d at 938; see also State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). In
the instant case, the trial court found that the appellant had an extensive history of violating
the law and that “[t]he shooting incident suggests that he just . . . isn’t concerning himself

                                              -8-
with the safety of folks whose lives he’s putting in danger.” The court also found that
ordering all of the sentences to be served consecutively would be excessive, thereby
supporting a finding that the terms it imposed were reasonably related to the severity of the
offenses. Accordingly, the appellant is not entitled to relief on this basis.

       Finally, the appellant argues that the trial court should not have imposed consecutive
sentencing for his aggravated assault convictions because the offenses were committed
within a twenty-four hour time period. In support of this contention, the appellant quotes the
language of Tennessee Code Annotated section 40-35-106(b)(4), which provides that
“convictions for multiple felonies committed within the same twenty-four-hour period
constitute one (1) conviction for the purpose of determining prior convictions.” However,
this provision is used to determine a defendant’s offender classification. See State v.
Lawrence Hailey, No. W2009-00759-CCA-R3-CD, 2010 WL 2219574, at *11 (Tenn. Crim.
App. at Jackson, May 24, 2010). Further, our courts have specifically held that “the single
criminal episode concept . . . is irrelevant to a determination of whether to impose
consecutive sentencing.” Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976); see also State
v. Darius Jones, No. W2010-01080-CCA-R3-CD, 2011 WL 2162986, at *4 (Tenn. Crim.
App. at Jackson, May 26, 2011), perm. to appeal denied, (Tenn. 2011).

                                      III. Conclusion

      In sum, we conclude that the trial court did not err in sentencing the appellant. The
judgments of the trial court are affirmed.


                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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