        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 9, 2012

               STATE OF TENNESSEE v. VINCENT D. STEELE

               Appeal from the Circuit Court for Montgomery County
                     No. 41100300      Michael R. Jones, Judge


                  No. M2011-02330-CCA-R3-CD - Filed May 31, 2012


Following his guilty pleas to reckless aggravated assault, assault, and possession with intent
to sell .5 grams or more of cocaine, the Montgomery County Circuit Court sentenced the
defendant, Vincent D. Steele, as a Range I, standard offender to concurrent terms of four
years, 11 month and 29 days, and 11 years’ imprisonment, respectively, to be served
consecutively to a previously-imposed sentence. On appeal, the defendant argues that the
sentence imposed was excessive both in length and manner of service. Discerning no error,
we affirm the judgments of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Roger E. Nell, District Public Defender (on appeal); and Crystal Myers, Assistant Public
Defender (at plea and sentencing), for the appellant, Vincent D. Steele.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Daniel Brollier, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On March 8, 2011, the Montgomery County grand jury charged the defendant
with evading arrest, resisting arrest, reckless aggravated assault, simple assault, driving on
a revoked license, simple possession of marijuana, possession of drug paraphernalia,
possession with intent to sell .5 grams or more of cocaine, and possession with intent to
deliver .5 grams or more of cocaine all occurring during a single episode on January 5, 2011.
On August 5, 2011, the defendant pleaded guilty to reckless aggravated assault, assault, and
possession with intent to sell .5 grams or more of cocaine. Pursuant to the plea agreement,
the parties agreed that the defendant would be sentenced as a Range I, standard offender, that
the sentences would be served concurrently with one another but consecutively to a
previously-imposed sentence and that the remaining six counts of the indictment would be
dismissed.1 Thus, the plea agreement left to the trial court’s discretion the length and manner
of service of the sentences.

                At the plea submission hearing, the State offered the following facts in support
of the pleas:

                [T]he facts are that there was a shooting reported, as officers
                respond[ed] to that shooting . . . the [d]efendant was seen
                leaving the area where the shooting occurred . . . [and] the
                officers observed his vehicle cross the yellow line continuously
                . . . [so] the officer[s] stopped the vehicle at that point.
                Immediately, as they approached the vehicle, they noticed a bag
                containing what appeared to be marijuana . . . on the console of
                the vehicle. The [d]efendant was asked to get out of the vehicle.
                He did. He fled at that point. The officer[s] tried to restrain him
                and he fought with them. Officer Scudd[er] was injured,
                suffered a broken finger as a result of that. That injury actually
                required surgery and some long-term disability for Officer
                Scudd[er]. In a search incident to that arrest, they did find
                cocaine in the vehicle . . . .

               At the September 29, 2011 sentencing hearing, Clarksville Police Department
(“CPD”) Officer Llin Scudder testified that a fight occurred while trying to arrest the
defendant. She said that “sometime during the fight[,] my ring finger broke.” Officer
Scudder testified that her injury required surgery during which two pins were placed in her
finger. She also required physical therapy and was restricted to “light duty for approximately
three months.” Officer Scudder testified that she continued to experience stiffness in the
finger and that “it’s been over six months now and I still can’t close my hand completely.”




        1
           Prior to entry of the guilty pleas, the State had filed notice of its intention to seek enhanced
punishment and sentencing of the defendant as a Range II, multiple offender. The notice indicates that the
defendant was previously convicted in 1997 of facilitation of the sale of 26 grams of more of cocaine and
facilitation of the sale of .5 grams or more of cocaine in a drug-free school zone. The notice also indicates
that the defendant was previously convicted in 2005 of sale of .5 grams or more of cocaine, the conviction
for which the defendant was on parole at the time the present offenses were committed.

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             CPD Officer David Johnson testified that he suffered a black eye, bloody nose,
and swollen hand from the scuffle during the defendant’s arrest.

               CPD Officer Gregory Beebe testified that a search of the defendant’s vehicle
incident to the arrest revealed “a plastic bag that contained a crystalline rock like substance,”
“a small plastic bag that contained a white powder substance,” “a plastic bag that contained
a green plant like material,” over $4,000, and “a set of digital scales with light residue.”
Laboratory tests confirmed the “crystalline” substance was 54.1 grams of crack cocaine, the
“green plant material” was 2.8 grams of marijuana, and the “white powder substance” was
.07 grams of cocaine.

              In addition to the conviction history listed in the presentence report, the parties
agreed that the defendant had been convicted in October 2005 of simple possession of
marijuana and possession with intent to sell .5 grams or more of cocaine.

              In determining the length of the defendant’s sentences, the trial court
considered as mitigation that the defendant “did enter pleas of guilty, he was working, [and]
he does have children.” See T.C.A. § 40-35-113(13). As enhancement, the trial court “gave
great weight” to the defendant’s “three [prior] Class B felony convictions” and the
defendant’s parole status at the time the present offenses were committed. See T.C.A. § 40-
35-114(1), (13). The trial court imposed sentences of four years for the reckless aggravated
assault, 11 months and 29 days for the assault, and 11 years for the cocaine offense. In
consideration of the defendant’s parole status at the time the present offenses were
committed, the trial court ordered service of the sentences in confinement.

                On appeal, the defendant challenges the length of the sentences imposed and
the trial court’s denial of a sentence less than confinement. Notably, the defendant does not
contest the trial court’s application of any enhancement or sentencing factors, only the length
of the sentences imposed, particularly the 11-year sentence, which he argues precluded the
trial court’s imposition of a probationary sentence. He makes no specific argument, however,
concerning his suitability for a sentence less than confinement. The State argues that the
record fully supports the trial court’s sentencing decision in this case.

              When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “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). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n

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Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration” to the appropriate “factors and principles which are
relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). Since the 2005 revisions to our sentencing act rendered enhancement and mitigating
factors advisory, appellate review does not extend to the weight afforded mitigating and
enhancement factors by the trial court. State v. Carter, 254 S.W.3d 335, 345-46 (Tenn.
2008). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, the trial court was required to 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) Evidence and information offered by the parties on the
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;

              (6) Any statistical information provided by the administrative
              office of the courts as to sentencing practices for similar
              offenses in Tennessee; and

              (7) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

             The defendant argues that “there is no available remedy, there is no right to
appeal” an excessive sentence. He contends that the appellate courts “have eviscerated the

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statutory right [to appeal provided in T.C.A. § 40-35-401(b)(2)] by [a] restrictive standard
of review . . . and [a] self-imposed restriction upon disturbing the sentence of the trial court.”
Despite the defendant’s argument that the appellate courts have “eviscerated” the defendant’s
right to appeal the trial court’s sentencing determination, our appellate review, as previously
outlined, reveals that the record in this case reflects that the trial court considered the
sentencing principles and all relevant facts and circumstances in arriving at the length of
sentences. Furthermore, as conceded by the defendant, the trial court applied appropriate
enhancement and mitigating factors. As previously stated, since the 2005 revisions to our
sentencing act rendered enhancement and mitigating factors advisory, appellate review does
not extend to the weight afforded mitigating and enhancement factors by the trial court.
Carter, 254 S.W.3d at 345-46. In that sense, when the only challenge to the sentence is to
the weight afforded by the trial court to enhancement and mitigating factors, we agree that
we are precluded from disturbing the sentence of the trial court.

              That being said, in this case the defendant was convicted previously of two
Class B felony cocaine offenses for which he received placement on community corrections.
During that time, the defendant garnered convictions for criminal trespassing, two driving
on a revoked license offenses, and cruelty to animals. In 2005, the defendant garnered a third
Class B cocaine conviction and was on parole from that offense at the time of the
commission of the present offenses. The defendant’s prolific history of cocaine convictions
fully supports the lengths of sentences imposed by the trial court in this case.


               Accordingly, we affirm the judgments of the trial court.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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