                                                                                                                     09/15/2017
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                          Assigned on Briefs at Knoxville July 25, 2017

                STATE OF TENNESSEE v. RICO CARTER WHISNET

                     Appeal from the Circuit Court for Hardeman County
                        No. 15-CR-156      J. Weber McCraw, Judge


                                     No. W2016-02173-CCA-R3-CD


The Defendant, Rico Carter Whisnet,1 was convicted by a Hardeman County Circuit Court
jury of delivery of less than 0.5 gram cocaine, a Class C felony, and delivery of 0.5 gram or
more of cocaine, a Class B felony. See T.C.A. § 39-17-417 (2014). The trial court
sentenced the Defendant as a Range II, multiple offender to concurrent terms of eight and
sixteen years in confinement. On appeal, the Defendant contends that the trial court erred in
its application of the mitigating and enhancement factors and by imposing more than the
minimum sentence. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.

Coleman W. Garrett and Claiborne H. Ferguson, Memphis, Tennessee, for the appellant,
Rico Carter Whisnet.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Mike Dunavant, District Attorney General; and Joe VanDyke, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                   OPINION

       This case relates to two controlled drug purchases conducted by the Hardeman
County Sheriff’s Office on July 11 and July 14, 2014. At the trial, Hardeman County
Sheriff’s Office Narcotics Investigator Jason Wilson testified that he had been involved in
about 100 narcotics cases during his career and had worked with confidential informants.
Investigator Wilson and Captain Greg Moore had received complaints that the Defendant
1
 The record reflects various spellings of the Defendant’s name. We have chosen the spelling contained in the indictment
and the judgments.
was selling drugs. Investigator Wilson arranged for controlled drug purchases by an
experienced confidential informant. Investigator Wilson said that he had worked with this
confidential informant on numerous other controlled drug purchases and that the confidential
informant was reliable. The condfidential informant was paid for his assistance in each
transaction.

       The officers gave the confidential informant a video camera, hidden in a keychain, to
record the transactions. The video recordings are not included in the appellate record,
however, the recordings of both transactions were played for the jury. During the viewing of
the recordings, Investigator Wilson identified the Defendant’s car, home, and voice. In the
recording of the first transaction, the confidential informant identified the Defendant by
name and greeted the Defendant’s mother. The confidential informant returned to the
investigators with a “baggie” of what appeared to be crack cocaine. Investigator Wilson said
that during the second controlled drug purchase, the confidential informant met with the
Defendant at a designated location. The confidential informant again returned with a baggie
of what appeared to be crack cocaine. The substances were sent to the Tennessee Bureau of
Investigation (TBI) laboratory for analysis. The analyses concluded that the substances were
cocaine base.

       On cross-examination, Investigator Wilson testified that Captain Moore searched the
confidential informant before the first transaction occurred. Investigator Wilson
acknowledged that the video recording of the first transaction did not show the exchange of
drugs and money but said that the exchange was audible in the recording. Investigator
Wilson admitted that the confidential informant stopped to purchase gas on the way to meet
the Defendant and left the camera in the car while at the gas station. Investigator Wilson
said that the confidential informant stopped a second time before meeting with the Defendant
to “get his money right.” Investigator Wilson admitted that the recording did not show the
confidential informant during the second stop. Investigator Wilson said that the recording of
the second controlled drug purchase did not show the exchange of drugs and money but that
the exchange was audible in the recording.

       Hardeman County Sheriff’s Office Captain Greg Moore testified that he had assisted
Investigator Wilson during both controlled drug purchases. Captain Moore stated that he
searched the confidential informant and the confidential informant’s car before and after both
transactions and that nothing was discovered during the searches.

      The confidential informant testified that he had worked as a confidential informant for
approximately three or four years. He admitted that he had an extensive criminal history.
The confidential informant said that he had participated in about seven or eight controlled
drug purchases with Investigator Wilson. He said that he met with Investigator Wilson and
Captain Moore before the first transaction. The confidential informant said that he travelled
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to the Defendant’s home, that he purchased crack cocaine from the Defendant, and that he
placed the crack cocaine in his pocket. The confidential informant said he gave the crack
cocaine to Investigator Wilson.

        The confidential informant testified that he met the Defendant at the designated
location for the second transaction. The confidential informant stated that the Defendant was
sitting in a car when he arrived, that he got in the Defendant’s car, and that he purchased
crack cocaine. The confidential informant said he gave the crack cocaine to Investigator
Wilson.

       On cross-examination, the confidential informant testified that he was related to the
Defendant, that he had not been recruited to serve as a confidential informant, and that he
was “already working” when approached by investigators. He said that the Defendant was
known for selling drugs. The confidential informant said that he was not employed other
than as a confidential informant.

       TBI Special Agent Forensic Scientist Peter Hall testified that he analyzed the
substance submitted for analysis from one of the transactions. He said that the substance
tested positive for cocaine base and weighed 0.64 gram.

       TBI Special Agent Forensic Scientist Shalandus Garrett testified that she analyzed the
substance submitted for analysis from the other transaction. She said that the substance
tested positive for cocaine base and weighed 0.20 gram.

       Upon this evidence, the Defendant was convicted of delivery of less than 0.5 gram
of cocaine and delivery of 0.5 gram or more of cocaine. This appeal followed.

       The Defendant contends that the trial court erred by ordering more than the minimum
sentences, arguing that the court failed to consider the mitigating factors and misapplied the
enhancement factors. The Defendant asserts that the court should have applied mitigating
factors (7) and (13) because the Defendant was motivated by a desire to provide for his
family, was enticed to commit the crime by his cousin, and suffered from psychological
disabilities. See T.C.A. § 40-35-113 (7), (13) (2014) (“The defendant was motivated by a
desire to provide necessities for the defendant’s family[.]”) (“Any other factor consistent
with the purposes of this chapter.”). He also argues that the court should not have considered
the Defendant’s previous drug convictions, which occurred more than ten years before the
present offenses, in applying enhancement factor (1). See T.C.A. § 40-35-114(1) (2014)
(amended 2015, 2016, 2017) (“The defendant has a previous history of criminal convictions
or criminal behavior, in addition to those necessary to establish the appropriate range[.]”).
The State responds that the court did not abuse its discretion. We agree with the State.

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        At the sentencing hearing, the presentence report was received as an exhibit and
reflected that the Defendant was age thirty-four and had two children who did not live with
him. The Defendant’s mother reported that the Defendant had received mental health
treatment previously and that he attended a behavioral health center monthly for medication
and counseling. The Defendant reported poor physical and mental health, including
diabetes, high cholesterol, high blood pressure, acid reflux, and anxiety. He reported taking
medication for those conditions. The Defendant reported alcohol use beginning at age
seventeen and stated that he drank a “fifth” of cognac every two days. He reported that he
began using marijuana at age fourteen and cocaine at age twenty-four and that he had used
both drugs every other day until his incarceration.

       The presentence report reflected the Defendant had previous convictions for twenty-
two traffic violations, three cocaine-related convictions, two misdemeanor possession of
marijuana convictions, and an assault conviction. The report showed that the Defendant’s
probation was revoked previously in one of his cocaine-related covictions.

       The Defendant testified that he had never been employed and that he had received
Social Security Disability benefits for psychological problems for more than ten years. The
Defendant said that he had psychological problems as a child. He stated that he graduated
from high school and that he took special education courses while in school. The Defendant
said that he took Ritalin and Paxil for his psychological problems. He stated that at the time
of the offenses he lived with his mother and that he had lived with her all of his life.

       On cross-examination, the Defendant testified that he had two prior convictions for
selling narcotics. The Defendant said that he owned the car seen in the video recording of
the second transaction but that he could not drive. When asked whether he had previously
claimed in court that he was indigent, the Defendant responded, “I got a mom too. She could
have bought that vehicle.” The Defendant stated that a previous attorney represented him
without a fee and that he had not paid trial counsel in the current case.

       The trial court considered the evidence presented at the trial and the sentencing
hearing, the presentence report, the principles of sentencing, the arguments regarding
sentencing alternatives, the nature and characteristics of the criminal conduct, evidence
relative to mitigating and enhancement factors, the Defendant’s statement, and the
Defendant’s potential for rehabilitation or treatment. The court found that the Defendant was
a Range II, multiple offender. The court found that mitigating factor (1) applied based upon
the nature of the offense. See id. § 40-35-113 (1) (“The defendant’s criminal conduct neither
caused nor threatened serious bodily injury[.]”). The court found that enhancement factor (1)
applied. See T.C.A. § 40-35-114(1) (“The defendant has a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range[.]”).
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        The trial court found that although the Defendant’s criminal history was lengthy, most
of the offenses were “minor driving offenses.” The court found that consecutive sentencing
was not appropriate. In determining the length of the sentences and whether probation was
appropriate, the court considered that the Defendant had been placed on probation previously
and that it had not “been an effective deterrent.” The court sentenced the Defendant to
concurrent terms of eight and sixteen years at 35% service.

        This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report, the
principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature and
characteristics of the criminal conduct, any mitigating or statutory enhancement factors,
statistical information provided by the Administrative Office of the Courts as to sentencing
practices for similar offenses in Tennessee, any statement that the defendant made on his
own behalf, and the potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014); State v. Moss, 727
S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987));
see T.C.A. § 40-35-102 (2014).

       Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[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.” Id. at 706. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as provided
by statute, a sentence imposed . . . within the appropriate range” will be upheld on appeal.
Id.

        The record reflects that the Defendant and the State agreed that the Defendant was a
Range II, multiple offender. The trial court considered the appropriate purposes and
principles of sentencing, including the applicable mitigating and enhancement factors. The
court’s determination relative to the Defendant’s prior criminal history and enhancement
factor (1) is supported by the record. The presentence report reflects that the Defendant had
three previous cocaine-related convictions, as well as several misdemeanor drug and assault
convictions. In addition, the Defendant had previously received probation, which was later
revoked. The sentencing range for a Class B felony for a Range II offender is twelve to
twenty years, and the sentencing range for a Class C felony is six to ten years. See T.C.A.
40-35-112(b)(2), (b)(3) (2014). The Defendant’s sentences were within the appropriate
                                             -5-
range, and the court’s determinations are supported by the record. The record reflects that
the court properly applied the purposes and principles of the Sentencing Act. The Defendant
is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.




                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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