        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 6, 2012

             STATE OF TENNESSEE v. PAUL ALLEN ST. CLAIR

                Appeal from the Criminal Court for Trousdale County
                  No. 10-61-E-112     David Earl Durham, Judge


                 No. M2012-00578-CCA-R3-CD - Filed April 16, 2013


The defendant, Paul Allen St. Clair, was convicted by a jury of one count of the sale of
between 14.175 grams and 4,535 grams of a Schedule VI substance identified as marijuana,
a Class E felony, and one count of the sale of a Schedule IV drug, a Class D felony. The trial
court sentenced the defendant to four years’ incarceration as a Range II offender on count
one and to eight years’ incarceration as a Range II offender on count two, to be served
consecutively. The trial court also fined the defendant two thousand dollars for each count
and two hundred and fifty dollars to go to the Drug Testing Fund for each count. The
defendant appeals, asserting that the trial court improperly weighed the mitigating factors in
assigning a sentence within the range. The defendant also contests the fines, which he argues
are unconstitutional because they were determined by the trial court rather than the jury.
After a careful review of the record, we conclude that the trial court did not abuse its
discretion in determining the length of the defendant’s sentences. However, because the
fines were assessed in violation of the Tennessee Constitution, we vacate the fines and
remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
                     Part and Vacated and Remanded in Part

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN, J., joined. JERRY L. SMITH, J., filed a separate opinion concurring in part and
dissenting in part.

Gregory D. Smith (on appeal); and Comer L. Donnell, District Public Defender, and Michael
Taylor, Assistant Public Defender (at trial) , for the appellant, Paul Allen St. Clair.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Tom
P. Thompson, District Attorney General; and Jason Lawson, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                          OPINION




                            I. Factual and Procedural History




        A confidential informant working with the Trousdale County Sheriff’s Department
made two “controlled buys” from the defendant in late 2009 and early 2010. On December
3, 2009, the confidential informant met the defendant and his girlfriend near their home and
purchased 26.6 grams of marijuana. The confidential informant testified that the defendant’s
girlfriend handed her the drugs and took her money and that the girlfriend then handed the
money to the defendant, who proceeded to count it. An audio and video recording of
variable quality captures some of the interaction between the defendant, his girlfriend, and
the confidential informant. On February 12, 2010, the defendant and his then-pregnant
girlfriend met the confidential informant in a grocery store parking lot and sold her diazepam,
or generic Valium pills. Again, the defendant’s girlfriend handed the drugs to the informant
and took the money. The informant testified that the defendant’s girlfriend then gave the
money to the defendant and that he went into the grocery store to get change. The defendant
offered to sell the confidential informant other pills as he returned to his car. The February
12, 2010 sale was also recorded.

        The jury convicted the defendant of one count of the sale of between 14.175 grams
and 4,535 grams of marijuana and one count of the sale of diazepam, a Schedule IV
substance. The jury’s verdict form did not reflect that any fine was assessed; however, the
trial court fined the defendant $2,000 in each count, with a $250 fine in each count to be paid
into the Drug Testing Fund.

       The defendant’s presentencing report reflects that he acknowledged committing the
crimes but stated he sold drugs to get money for food for his pregnant girlfriend. The
defendant self-reported mental health issues for which he received treatment as a youth and
reported that his step-father taught him to use marijuana at age five. He reported sporadic
employment and stated he owed $28,000 in child support. An affidavit of complaint against
the defendant charging that he had committed domestic assault against his girlfriend was also
introduced at the sentencing hearing.

         At the hearing, the trial court stated on the record that it considered the evidence at
trial, the presentence report, the purpose and intent of sentencing encapsulated in Tennessee
Code Annotated section 40-35-102 (2010), the defendant’s eligibility for alternative

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sentencing, and the conduct involved. The trial court found that the defendant was a Range
II offender with respect to both convictions and that the defendant had thirteen misdemeanors
in addition to three felony convictions. The court found as a mitigating factor that the
defendant’s conduct did not cause or threaten serious bodily injury, and also accepted that
he was not a professional criminal and that he could benefit from drug treatment programs.
The trial court summed up that it had found “one, one and a half mitigating factors.” The
trial court found as enhancement factors that the defendant had a previous history of criminal
convictions beyond those necessary to establish the range and that he was the leader in an
offense involving two criminal actors. The trial court concluded that the enhancement
factors “greatly outweighed” the mitigating factors, and the court sentenced the defendant
to four years for count one and eight years for count two, the highest sentences within the
range for the two convictions. The trial court also found that the defendant had an extensive
record of criminal activity, and it ordered the sentences to be run consecutively.

       The defendant moved for a new trial on various theories,1 including that the trial court
erred in sentencing the defendant to the maximum sentence within his range on each count
when it had found that one to one and a half mitigators applied. The defendant also moved
for a reduction in his sentence, asserting that the sentences were greater than deserved,
disproportionate, and not the least restrictive measure necessary to achieve the purposes for
which the sentences were imposed.

       On appeal, the defendant asserts that it was error for the trial court to sentence him to
the maximum in the range when it had found a near balance in the number of mitigating and
enhancing factors. The defendant also argues that the $2,000 fines were assessed by the trial
court in violation of article VI, section 14 of the Tennessee Constitution. The defendant
contends that, as he has been found indigent for the purposes of legal representation, the fines
should be waived.

                                               II. Analysis

                                         A. Length of Sentence

       Under Tennessee Code Annotated section 40-35-210(c), a trial court must impose a
sentence within the appropriate range, and “the court shall consider, but is not bound by,”
certain advisory sentencing guidelines. T.C.A. § 40-35-210(c). The guidelines direct the
court to impose the minimum sentence and to adjust the length according to the presence or
absence of enhancing and mitigating factors. T.C.A. § 40-35-210(c)(1), (c)(2). The
defendant essentially contends that the trial court erred in weighing the mitigating and

       1
           The defendant appeals only his sentences, not his convictions.

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enhancing factors when it imposed his sentence.

         A defendant may appeal the may appeal from the length, range or the manner of
service of a sentence. T.C.A. § 40-35-401(a). Previously, our standard of review when
confronting a challenge to the length of a sentence was de novo upon the record with a
presumption of correctness; however, if the trial court failed to undertake the proper
considerations, review was de novo with no presumption of correctness. See State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). In State v. Bise, the Tennessee Supreme Court
concluded that the 2005 amendments to the Sentencing Act abrogated the de novo standard
of review. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Accordingly, we now review
a trial court’s decision regarding the length of a sentence for an abuse of discretion, granting
a presumption of reasonableness to within-range decisions that reflect a proper application
of the purposes and principles of the Sentencing Act. Id. In fact, “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 Sentencing Act. 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 by the trial court within the appropriate range should
be upheld.” Id.

       The defendant acknowledges that the sentences fall within the appropriate ranges, but
avers that they do not adhere to Tennessee Code Annotated section 40-35-103(2) and (4)’s
requirement that the sentences should be “no greater than that deserved for the offense
committed” and “the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” He further argues that, as the court imposed the maximum sentences
within the ranges, he did not receive “credit” for the mitigating factors found by the court and
that the court’s decision was contrary to Tennessee Code Annotated section 40-35-113,
which lists possible mitigating factors.

        Under the new standard of review outlined in Bise, we conclude that there was no
error in determining the length of the defendant’s sentences. Under Bise, “sentences should
be upheld so long as the statutory purposes and principles, along with any applicable
enhancement and mitigating factors, have been properly addressed.” Bise, 380 S.W.3d at
706. In fact “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. Here, the trial court properly considered the factors enumerated in
Tennessee Code Annotated section 40-35-210. The court did not err by refusing to
mathematically offset the enhancing factors against the mitigators it found, and the defendant
offers no argument to demonstrate that the trial court failed to adhere to the principles
described in Tennessee Code Annotated section 40-35-103. Accordingly, we conclude there
was no abuse of discretion.

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                                  B. Unconstitutional Fines

       The defendant next asserts that the fines imposed on him violate article VI, section
14 of the Tennessee Constitution. The State argues that any error in imposing the fines was
waived, and absent waiver, that it was harmless beyond a reasonable doubt.

        Issues not raised before the trial court are typically waived on appeal. See Tenn.R.
App. P. 3(e); State v. Maddin, 192 S.W.3d 558, 561 (Tenn. Crim. App. 2005). Nevertheless,
an appellate court may consider whether the trial court committed plain error under
Tennessee Rule of Appellate Procedure 36(b). “When necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial rights of a party at any
time, even though the error was not raised in the motion for a new trial or assigned as error
on appeal.” Tenn. R. App. P. 36(b). Plain error review is appropriate when five factors have
been established: (1) the record must clearly establish what occurred in the trial court; (2) a
clear and unequivocal rule of law must have been breached; (3) a substantial right of the
defendant must have been adversely affected; (4) the accused must not have waived the issue
for tactical reasons; and (5) consideration of the error must be necessary to do substantial
justice. State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000); State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994). We conclude that the factors listed are established here.


         Article VI, Section 14 of the Tennessee Constitution prohibits the assessment of a fine
in excess of fifty dollars unless imposed by a jury. The procedure to be followed in the
imposition of a fine in excess of fifty dollars is that “[t]he jury shall report such fine with a
verdict of guilty. When imposing sentence, after the sentencing hearing, the court shall
impose a fine, if any, not to exceed the fine fixed by the jury.” T.C.A. § 40-35-301(b). There
are two exceptions to the rule that only a jury may fix such a fine: (1) the defendant may
waive his right for a jury to determine the amount; and (2) such a fine may be imposed when
it is “statutorily specified and allows no judicial discretion in its imposition.” State v. Martin,
940 S.W.2d 567, 570 (Tenn. 1997). The jury fixed no fine in this case, and the defendant did
not waive his right to have a jury specify the fine. Tennessee Code Annotated section
39-17-428(b)(9) sets the “minimum mandatory fine” for a first felony conviction for a drug
offense involving a scheduled controlled substance at $2,000. The defendant’s fine was
therefore the mandatory minimum required by statute. In State v. Martin, the Tennessee
Supreme Court concluded that because “the statute prescribes only a minimum fine,” “the
trial judge exercised some measure of discretion.” Martin, 940 S.W.2d at 570. Accordingly,
the fine in Tennessee Code Annotated section 39-17-428, which prescribes only a minimum,
allows for judicial discretion and may only be imposed by a jury.

       In State v. Martin, after concluding that the fine was imposed in error absent a jury

                                                -5-
determination, the Tennessee Supreme Court refused to replace the amount imposed by the
trial court with the mandatory minimum fine; instead, it remanded for a jury to determine the
amount of the fine. Id. at 570-71. The Court reasoned that even the imposition of the
statutory minimum was an exercise of judicial discretion in violation of the State
Constitution. Id. at 571.

        There is some precedent supporting the proposition that the error may be deemed
harmless. In State v. Green, 167 S.W. 867, 868 (Tenn. 1914) the Tennessee Supreme Court
concluded that “[w]hile it was error for the court to assess the fine without submitting the
question of its amount to the jury, it is not reversible error, because he exercised his assumed
power for the benefit of the plaintiff in error,” and ultimately determined it “would be useless
to reverse and remand.” See also State v. McCobb, No. W2006-01517-CCA-R3-CD, 2007
WL 2822921, at *8-9 (Tenn. Crim. App. Sept. 26, 2007) (reducing non-statutory fine
imposed in violation of the constitutional provision to fifty dollars). However, the weight
of authority has required a remand to allow a jury to determine the fine. In Upchurch v.
State, 281 S.W. 462, 463-64 (Tenn. 1926) the Tennessee Supreme Court concluded that
imposition of statutory minimum fine required remand and disapproved of the result in State
v. Green. See also State v. Wallace, No. W2005-02477-CCA-R3-CD, 2006 WL 3085505,
at *4-5 (Tenn. Crim. App. Oct. 31, 2006) (remanding to allow jury to determine non-statutory
fine); State v. Reid, No. M2000-02026-CCA-R3-CD, 2001 WL 1028815, at *5-6 (Tenn.
Crim. App. Sept. 7, 2001) (remanding for determination of statutory fine). In State v. Holt,
No. M2008-00047-CCA-R3-CD, 2009 WL 736665, at *9-10 (Tenn. Crim. App. Mar. 19,
2009), the court was faced with the situation at bar: the trial court had imposed the statutory
minimum fine in violation of the Tennessee Constitution. The court remanded so that a new
jury could be empaneled to fix the fine. Id. at *10. We conclude that a remand is necessary.

        The defendant proposes that his fines be waived due to his indigence. Tennessee
Code Annotated section 39-17-428(d)(1) allows the trial court to waive or reduce a fine in
certain circumstances, including indigence. “However, a finding of indigence does not
preclude a trial court from imposing the mandatory minimum fine.” State v. McCracken, No.
E2008-00361-CCA-R3-CD, 2008 WL 5330462, at *4 (Tenn. Crim. App. Dec. 22, 2008); see
also State v. Crawford, No. 03C01-9611-CR-00397, 1998 WL 6930, at *5 (Tenn. Crim. App.
Jan. 8, 1998) (“A declaration of indigency, standing alone, does not immunize the defendant
from fines. It is merely one factor to be taken into account.”). While we decline the
defendant’s invitation to waive the fine, we note that on remand, the trial court, considering
the principles and factors of the Sentencing Act, may – if it chooses – exercise its discretion
with regard to waiver of the fine. See McCracken, 2008 WL 5330462, at *4-5. If the trial
court chooses not to waive the fine due to the defendant’s indigence and the defendant
likewise chooses not to waive his right to have a jury impose the fine, a new jury must be
empaneled to determine the proper amount of the fine.

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                                      CONCLUSION

       Because we conclude that the trial court did not abuse its discretion with regard to the
length of the defendant’s sentences, we affirm the length of the sentences. However, because
the $2,000 fines were assessed in violation of the Tennessee Constitution, we vacate the fines
and remand for further proceedings consistent with this opinion.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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