         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs April 10, 2007

                    STATE OF TENNESSEE v. HERBERT COPE

                 Direct Appeal from the Criminal Court for Overton County
                            No. 5944     Lillie Ann Sells, Judge



                     No. M2006-01058-CCA-R3-CD - Filed May 22, 2007


The defendant, Herbert Cope, was convicted by an Overton County Criminal Court jury of sale of
a Schedule II controlled substance (morphine), a Class C felony, and was sentenced by the trial court
as a Range II offender to nine years in the Department of Correction. On appeal, he argues that the
trial court imposed an excessive sentence by failing to apply applicable mitigating factors and
erroneously applying an inapplicable enhancement factor. Following our review, we affirm the
judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and DAVID
G. HAYES, J., joined.

Michael R. Giaimo, Livingston, Tennessee, for the appellant, Herbert Cope.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; William Edward Gibson, District Attorney General; and John A. Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                              FACTS

                                                Trial

        The defendant and a codefendant, Gina Ledbetter, were each indicted on one count of sale
of morphine and one count of delivery of morphine. The relevant proof at their joint trial established
that on January 14, 2005, Special Agent Danny Espinoza of the Tennessee Bureau of Investigation,
Detective Bill Randolph of the Livingston Police Department, and Agent Fred Stewart of the Drug
Task Force met with a confidential informant to arrange an undercover purchase of morphine tablets
from the defendant. The confidential informant was fitted with an electronic monitoring device, and
Agent Espinoza was given $150 in confidential funds. The two men then went to the defendant’s
residence in Livingston, where the informant introduced the undercover drug agent to the defendant.
Agent Espinoza had never seen the defendant prior to that time.

        Agent Espinoza told the defendant that he wanted to buy some morphine, and the defendant
informed him that the price ran from $20 to $25 per tablet. Agent Espinoza then gave the defendant
$100 for $100 worth of tablets, and the defendant informed him that they had to go see “Mrs.
Ledbetter.” The defendant also informed the undercover agent that he usually received an extra
tablet as payment for making the purchase. In response, Agent Espinoza told the defendant that he
would not buy an extra tablet but would pay him $20 for his services. Agent Espinoza paid the
defendant, and the three men then went to Ledbetter’s residence, but she was not home. At that
point, the defendant contacted her by cell phone to discuss the drug sale and to arrange for her to
meet the men at the defendant’s residence. She arrived on schedule and Agent Espinoza watched
as the defendant walked to her vehicle, gave her the cash, and received four morphine tablets in
exchange. She left, and the defendant gave the tablets to Agent Espinoza.

        Both Agent Espinoza and the drug agent who monitored the transaction testified at trial that
neither Agent Espinoza nor the confidential informant pressured or pleaded with the defendant to
purchase the morphine.

        The defendant testified that he was fifty-three years old, lived with his mother, had been a
bricklayer for twenty-seven years, and currently worked part-time with “Bobby Davis.” He said he
had a deteriorating disc in his back and a sleeping disorder for which his physician had prescribed
a number of medications, including sleeping pills, Avenza, and Percocet. He stated that he was
addicted to his prescription medication but did not sell drugs. The confidential informant was his
cousin, David, who lived with him during the time that the events in this case transpired. According
to the defendant, David was also addicted to prescription medication and regularly pleaded for the
defendant to sell him some of his medicine, but he always refused.

        The defendant testified that in the days preceding the January 14, 2005, drug transaction,
David had twice asked him to purchase Oxycontin tablets for himself and another man he brought
with him to the defendant’s residence. On both of those prior occasions, he had refused. The
defendant identified Agent Espinoza as the man who had accompanied his cousin on the second
occasion and stated that, although he was not positive, he believed Agent Espinoza was the person
with his cousin on the first occasion as well. The defendant testified that he had not really wanted
to purchase the morphine tablets for Agent Espinoza but had agreed to do so because he was a drug
addict and wanted some extra morphine for himself. He said he also felt sorry for his cousin, who
was addicted to prescription medication and had no other means of obtaining drugs. The defendant
stated that he would not ordinarily purchase drugs for someone else.

       The defendant testified that he had been convicted of the felony offense of cultivation of
marijuana in 1990 or 1991 and had a handgun charge in federal court, but it had been dismissed. He


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stated that he had never been convicted of buying or selling drugs. The defendant said that he was
not proud of what he had done and never intended to repeat his actions. On cross-examination, he
acknowledged he had been involved in the “drug community” since he was forty years old.

        After deliberating, the jury convicted both the defendant and his codefendant of both counts
of the indictment, setting a $10,000 fine for each count. The trial court later merged the alternate
counts into a single conviction for sale of morphine and assessed a $10,000 fine.

                                       Sentencing Hearing

         Kerry Farley, the probation and parole officer who prepared the defendant’s presentence
report, testified that the defendant currently had a case pending in Overton County General Sessions
Court for possession of drug paraphernalia. He said that the defendant’s prior record included
convictions for evading arrest, violation of the insurance law, possession of drug paraphernalia,
simple possession, possession of marijuana, public intoxication, and production of marijuana. The
defendant also had convictions in federal court for conspiracy to manufacture marijuana and the use
of a firearm in the commission of a felony, for which he had received a ten-year sentence.
Additionally, the defendant had violated his probation in 2005. Farley testified that he believed the
defendant’s evading arrest conviction had arisen out of his attempt to flee when served with the
probation violation warrant:

                He had violated the General Sessions probation by picking up a new offense
       and that was taken care of at the same time as the previous charge. As a matter of
       fact[,] I believe the previous charge of evading arrest arose when they served him
       with a warrant on the violation of probation.

        Farley testified that the defendant did not deny that he had committed the crime but expressed
the belief that he had been “set up” and that the officers involved in the undercover drug purchase
were “dirty.” He said the defendant told him he was a drug addict and became involved in the
transaction because “he was trying to help out another drug addict.” The defendant also told him that
he was sorry for the embarrassment his actions had caused his family. On cross-examination, Farley
acknowledged that the defendant had been truthful and forthcoming in his conversations with him
and had apologized in his written statement for his offense. When asked if he was certain that the
defendant’s probation violation had not been dismissed, Farley testified that he had pulled the jacket
and made a copy of the judgment. He acknowledged, however, that the handwriting on the judgment
was difficult to read.

        The trial court noted from the sentencing report that the defendant had dropped out of school
in the eighth grade but had earned his G.E.D. while incarcerated in the federal penitentiary. The
court further noted that the defendant reported a number of health problems, including high blood
pressure and back problems; admitted a past history of drug and alcohol abuse; and stated that he had
been disabled since February 2001. The defendant also stated, however, that he had twice been
denied disability benefits.


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        The trial court applied three enhancement factors to the defendant’s sentence: the defendant
had a previous history of criminal convictions or criminal behavior in addition to those necessary
to establish the appropriate range; the defendant was a leader in the commission of an offense
involving two or more criminal actors; and the defendant failed to comply with the conditions of a
sentence involving release into the community. See Tenn. Code Ann. § 40-35-114(1), (2), (8)
(2006). The trial court rejected the defendant’s proposed mitigating factors that his criminal conduct
neither caused nor threatened serious bodily injury; that he acted under strong provocation; that he
committed the offense under such unusual circumstances that it was unlikely that he was motivated
by a sustained intent to violate the law; and that he acted under duress or domination of another
person. See Tenn. Code Ann. § 40-35-113(1), (2), (11), (12) (2006). Applying great weight to
enhancement factors (2) and (8), the trial court enhanced the defendant’s sentence from six years,
the minimum sentence for a Range II offender convicted of a Class C felony, to nine years, one year
less than the maximum sentence in the range.

                                             ANALYSIS

        The defendant’s sole issue on appeal is whether the trial court imposed an excessive sentence.
When an accused challenges the length and manner of service of a sentence, it is the duty of this
court to conduct a de novo review on the record 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). This
presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). Because the record reveals that the trial court adequately considered
the sentencing principles and all relevant facts and circumstances, our review is de novo with a
presumption of correctness afforded to the trial court’s sentencing determinations. Tenn. Code
Ann. § 40-35-401(d); Ashby, 823 S.W.2d at 169.

        In conducting a de novo review, we consider (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) the
mitigating and enhancement factors; (6) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing; and (7) the defendant’s potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168. The burden
of showing that the sentence was improper falls upon the defendant. Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments.

        Effective June 7, 2005, Tennessee Code Annotated sections 40-35-114 and 40-35-210 were
rewritten in their entirety. While this defendant could have elected to be sentenced pursuant to these
new provisions, the record on appeal does not contain a waiver showing that he did so. Thus, the
revised statutes are not applicable. See Tenn. Code Ann. §§ 40-35-114, -210, Compiler’s Notes.

       The trial court is to impose a sentence within the range of punishment, as determined by the
defendant’s offender classification. Tenn. Code Ann. § 40-35-210(c). In imposing a specific


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sentence within that range, the trial court shall consider, but is not bound by, the following
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 or mitigating and enhancement factors set out in §§ 40-
       35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c). The weight to be afforded an existing factor is left to the trial
court’s discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act
and its findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing
Commission Cmts.; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see Ashby, 823 S.W.2d at
169.

        The defendant asserts that “[w]hether [he] was actually found guilty of a probation violation
is anyone’s guess based upon the record in this case.” In support, he relies solely on Farley’s
acknowledgment that the general sessions court records were confusing and the judgment form
difficult to read. In applying this enhancement factor, the trial court found as follows:

                Additionally, the court finds as to this defendant that he had a previous
       history of unwillingness to comply with the conditions of [a] sentence involving
       release into the community and that is supported on page six of his investigative
       report with the violation of probation in Overton County General Sessions. This
       occurred on January 12th, 2006, on page 6, second entry from the top, and that is a
       result of a conviction earlier in the General Sessions Court of a lesser included
       offense of a drug charge here in Overton County, according to the testimony of the
       officer and according to this report, that he was violated while he was on probation
       at least on one occasion pursuant to the report here. The court makes that finding and
       again places a great deal of weight on that enhancement factor.

         We can find no error in the trial court’s application of this enhancement factor. The
probation and parole officer who investigated the defendant’s records and prepared his presentence
report acknowledged that the general sessions court records were confusing. Nonetheless, he
determined after pulling the records that the defendant had been found in violation of his probation
in general sessions court, and he included this information in the presentence report. The defendant
presented no evidence to refute this determination. We conclude, therefore, that the record supports
the trial court’s finding that the defendant had previously failed to comply with the conditions of a
sentence involving release into the community.



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         The defendant also argues that the trial court erred by not applying as a mitigating factor the
fact that he acted under strong provocation or duress. In support of the applicability of this factor,
he points out that the confidential informant was his own cousin, with whom he had a close
relationship and who was living with him at the time of the offense. The defendant also points to
his trial testimony that his cousin had been continually pleading for the defendant to purchase drugs
for him. However, according to the drug enforcement officers who testified at trial, neither the
confidential informant nor Agent Espinoza badgered or begged the defendant to engage in the
transaction. We conclude, therefore, that the trial court did not err by refusing to apply this
mitigating factor.

         Finally, the defendant argues that the trial court erred by not applying as a mitigating factor
the fact that his offense neither caused nor threatened serious bodily injury. The State argues that
even if this factor were applicable, it was entitled to only minimal weight. In State v. Ross, 49
S.W.3d 833, 848 (Tenn. 2001), our supreme court concluded that application of this mitigating factor
“focuses not on the circumstances of the crime committed” but “upon the defendant’s conduct in
committing the crime.” Thus, the factor was applicable to a defendant who constructively possessed
a controlled substance, which was located in a room several doors down from that in which officers
found the defendant. However, the court further explained that, had the defendant sold or attempted
to sell the drug at the time of the offense, “then the dangerous nature of the drug, combined with the
dangerous nature of many drug transactions, may have indeed supported the trial court’s rejection
of this factor as constituting a threat of serious bodily injury.” Id.

         In a case involving the sale of another Schedule II controlled substance, cocaine, this court
wrote:

         Inherent within the trafficking and distribution of drugs is the potential for serious
         bodily injury. Although we recognize that not all drug deals involve violence, we do,
         however, recognize that the very nature of the act makes the potential for serious
         bodily injury ever present. Accordingly, we find that the sale of cocaine is not so
         sufficiently free from all danger such that it can be used to mitigate a seller’s
         sentence.

State v. Holston, 94 S.W.3d 507, 512 (Tenn. Crim. App. 2002) (citing State v. Vanderford, 980
S.W.2d 390, 407 (Tenn. Crim. App. 1997)). In view of the fact that this case involved the
defendant’s selling a controlled substance, application of mitigating factor (1) was not warranted.
Furthermore, even if applicable, it was entitled to very little, if any, weight. In sum, we conclude
that the enhancement factors that were appropriately applied, combined with the absence of any
meaningful mitigating factors, justify the nine-year sentence. Accordingly, we affirm the judgment
of the trial court.




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                                 CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                              ___________________________________
                                              ALAN E. GLENN, JUDGE




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