        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 20, 2011

         STATE OF TENNESSEE v. SALWILLEL THOMAS FIELDS

                Appeal from the Circuit Court for Montgomery County
                    No. 40500194 John H. Gasaway, III, Judge




                 No. M2011-00088-CCA-R3-CD - Filed August 1,, 2011



In February 2005, a 14-count indictment was returned against the Defendant, Salwillel
Thomas Fields. In exchange for concurrent sentencing, the Defendant pled guilty to
possession with intent to sell over 300 grams of cocaine, a Class A felony; possession with
intent to sell more than one half ounce but less than ten pounds of marijuana, a Class E
felony; possession of a machine gun, a Class E felony; and three counts of unlawful
possession of a weapon, a Class E felony. The parties agreed to the Defendant’s sentencing
range for each of the convictions but left the length of the sentences to the trial court’s
discretion. The remaining counts were dismissed. The trial court sentenced the Defendant
as a Range II, multiple offender to 38 years for the Class A felony and as a Range III,
persistent offender to 5-years for each of the Class E felonies. In this appeal as of right, the
Defendant contends that the trial court erred in setting the length of his Class A felony
sentence. Following our 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.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Edward E. DeWerff, Clarskville, Tennessee, for the appellant, Salwillel Thomas Fields.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and John E. Finklea,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

        At the guilty plea submission hearing held on October 25, 2010, the State asserted that
a search warrant was executed on April 24, 2004, at the Defendant’s residence that he shared
with his wife. The officers found cocaine “in various bedrooms of the house, some under the
couch, [and] some in the car out in front of the house.” The officers also found a weapon and
approximately $4,000 in cash inside the residence and three weapons in a bag in a car outside
the residence.

        At the sentencing hearing held on December 16, 2010, the State submitted that the
Defendant was a “man who ha[d] dedicated his life to crime” and “ha[d] lived his life with
nothing but crime.” The State argued that the presentence report listed 17 convictions, 7 of
which were felonies involving drugs and violence and that the Defendant was presently
serving another sentence in the federal penitentiary for 2 additional felonies. The State said
that given the amount of cocaine and the fact that the Defendant had a machine gun, the
Defendant was clearly living his life as a “violent drug dealer.” The State requested that the
trial court sentence him to 40 years in the Tennessee Department of Correction for the Class
A felony conviction.

       In response, defense counsel stated that the cocaine and weapons were found
throughout the residence and not on the Defendant’s person and that the machine gun was
found in the trunk of a car outside the residence. Citing the merger doctrine, defense counsel
asked the trial court to merge the three convictions of unlawful possession of a weapon.
Defense counsel stated that the statute involving that offense focused on the fact that a felon
who was in possession of a weapon was “potentially a more dangerous person with that
weapon.” Defense counsel argued that proceeding with three separate convictions for the
offense of being a felon in possession of three separate weapons was unnecessary and
contrary to the purpose of the statute.

        Following the arguments of the State and defense counsel, the trial court found that
the Defendant had “a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range” and applied that enhancement
factor to each of the Defendant’s six felony convictions. Tenn. Code Ann. § 40-35-114(1).
The court also found and applied as mitigating factors that the Defendant’s “criminal conduct
neither caused nor threatened serious bodily injury” and that under the “catch-all” mitigating
factor, the Defendant had eliminated the “necessity of a trial and the associated time, effort
and expenses” by pleading guilty. Tenn. Code Ann. § 40-35-113(1), (13). In so finding, the
trial court sentenced the Defendant to 38 years for the Class A felony and to 5 years for each
of the Class E felonies. The trial court rejected defense counsel’s merger argument. The trial
court concluded that proceeding with separate convictions for these offenses was proper
because each offense involved a different weapon, namely a Ruger 9 millimeter, a “Llama

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45,” and an “E-A 45” and because the Defendant had already pled guilty to each count
without any discussion as to whether these counts would be merged.

                                               ANALYSIS

        The Defendant contends that the trial court erred in setting the length of his sentence
for his Class A felony conviction. The Defendant asserts that a 38-year sentence for that
conviction was excessive and that the trial court failed to state on the record its reasons for
setting the length of the sentence. The State responds that the Defendant has waived review
of his sentence because he failed to include the transcript of the guilty plea hearing in the
record on appeal.1 The State alternatively responds that the trial court’s sentencing decision
is supported by the record.


        The Defendant committed the offense on April 24, 2004, but he was not sentenced
until December 16, 2010. Therefore, he could have elected to be sentenced pursuant to the
2005 revisions to the Criminal Sentencing Act. See 2005 Tenn. Pub. Act ch. 353, § 18
(providing that for offenses committed before the July 7, 2005 enactment of the revised
Sentencing Act, the former act applies unless the defendant executes a waiver permitting
sentencing under the new act). We will review the Defendant’s sentence pursuant to the pre-
2005 Sentencing Act because no waiver appears in the record. See State v. James Albert
Taylor, No. E2007-02878-CCA-R3-CD, 2009 WL 396076, at *7 (Tenn. Crim. App. Feb. 17,
2009). While the Defendant waived his right to a jury trial by pleading guilty, he did not
waive his right to a jury determination of any facts used to increase his sentence beyond the
statutory minimum. See Vincent Tracy Morton v. State, No. M2007-00900-CCA-R3-CD,
2008 WL 2053071 (Tenn. Crim. App. May 14, 2008) (stating that the defendant had waived
his right to a jury determination of enhancement factors by signing a waiver of rights related
to sentencing), perm. app. denied (Tenn. Dec. 22, 2008).

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2003).
As the Sentencing Commission Comments to this section note, on appeal the burden is on
the defendant to show that the sentence is improper. If review of the record reflects that the
trial court properly considered all relevant factors, gave due consideration and weight to each
factor, and its findings of fact are adequately supported by the record, this court must affirm
the sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Should the
record fail to demonstrate the required considerations by the trial court, then appellate review



1
 Following the filing of the State’s brief, the record was supplemented to include the transcript of the guilty
plea hearing.
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of the sentence is purely de novo. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In
this respect, for the purpose of meaningful appellate review, the trial court must “place on
the record, either orally or in writing, what enhancement and mitigating factors were
considered, if any, as well as the reasons for the sentence.” Tenn. Code Ann. § 40-35-210(e).


        In conducting its de novo review with a presumption of correctness, the appellate
court must consider (1) the evidence, if any, received at the trial and 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, (5) any mitigating or
statutory enhancement factors, (6) any statement that the defendant made on his own behalf,
(7) the potential for rehabilitation or treatment, and (8) any statistical information provided
by the Administrative Office of the Courts as to sentencing practices for similar offenses in
Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; State
v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

         Under the former law, the presumptive sentence to be imposed for a Class A felony
was the midpoint in the range if there were no enhancement or mitigating factors. Tenn.
Code Ann. § 40-35-210(c) (2003). The pre-2005 Sentencing Act provided that, procedurally,
the trial court was to increase the sentence within the range for a Class A felony based on the
existence of enhancement factors and then reduce the sentence as appropriate for any
mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e) (2003). The Tennessee Supreme
Court has held that in sentences imposed pursuant to Tennessee’s former Sentencing Act, the
trial court’s enhancement of a defendant’s sentence based on factors that had not been found
by a jury beyond a reasonable doubt violated a defendant’s Sixth Amendment right to a jury
trial as interpreted by the Supreme Court. State v. Gomez, 239 S.W.3d 733, 740-41 (Tenn.
2007) (“Gomez II”) (citing Cunningham v. California, 549 U.S. 270, 275 (2007)). However,
a trial court may still consider a defendant’s prior convictions as an enhancement factor
pursuant to Gomez II. Id. at 739-41.

        Here, the sentencing range for the Defendant’s Class A felony conviction was “not
less than twenty-five (25) nor more than forty (40) years.” Tenn. Code Ann. § 40-35-112(b)
(2003). Thus, the presumptive sentence for the Defendant’s conviction was 32.5 years.
Tenn. Code Ann. § 40-35-210(c) (2003). Contrary to the Defendant’s assertion, the trial
court stated its reason for setting the length of the Defendant’s sentence. Indeed, the trial
court applied one enhancement factor and two mitigating factors in setting the length of the
Defendant’s sentence at 38 years. The Defendant’s lengthy criminal history spanned from
1988 to 2003 and consisted of convictions of several driving offenses, disorderly conduct,
aggravated assault, unlawful possession of a weapon, possession of cocaine, burglary,
criminal trespass, and assault and battery. The Defendant was also serving a 20-year federal

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sentence when he was sentenced for the instant offenses. Additionally, the amount of
cocaine involved in this case, more than 300 grams, was extremely significant. Following
our review, we conclude that the record supports the trial court’s sentencing decision and that
the effective sentence length of 38 years complies with the purposes and principles of the
applicable Sentencing Act. Accordingly, we affirm the trial court’s sentencing decision.

                                       CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.


                                           _______________________________________
                                           D. KELLY THOMAS, JR., JUDGE




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