### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Bri efs March 11, 2003 STATE OF TENNESSEE v. TIMOTHY M . ROBERTS Direct Appeal from the Criminal Court for Davidson County

No. 99-B-1296 Steve R. Dozier, Judge

No. M2002-00806-CCA-R3-CD - F iled March 18, 2003

The de fe nd an t o ri gi na ll y p led guilty pursuant to a plea agreement to var ious theft and forgery offenses as a Ran ge II multiple offender for an effective six-y ear sentence, most of which would be served on community c orrect

i ons. At the time of the plea, he agreed his sente nce would be increased to ten y ears if h e vio lated th e community c orrect ions prog ram. He w as subseq

uently revoked and ordered to serve an effect ive ten-yea r sentence in the Department of Correction. On appeal, he conte

nds the tr ial cour t failed t o make sentencing findings and imposed illegal sentences above the authorized Range II punishment. We agree and, therefore , reverse and remand for a new sente ncing h earing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Revers ed; Rem

anded J OE G

. R ILEY , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and A LA N E

. G LENN , J., joined. Michael A. Colave cchio (o n appea l) and Ron Munkeboe, Jr. (at hearing), Nashville, Tennessee , for the appellant, Timothy M. Roberts. Paul G. Summ

ers, Attorney Gene

ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; Victor S. Johnson, III , District Attorney Gene ral; and Derrick L . Scretchen, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION On December 3, 1999, the defendant pled guilty pursuant

to a plea agree ment to two

counts of theft over $1,000, one count of forger y over $1,000 and four counts of forgery over $500. The agreeme nt pro vided the fo llow ing: 1. the defendant would receive a sentenc e of six years as a Rang e II

offender on eachcount of

theft over $1,000 and onthe count of forg ery

over $1, 000, all Class D fe

lonies;-2-

2. the defendant would receive a sentenc e of four y ears as a Range I I offender on each of

the rema ining co unts of fo rgery over $50 0, all C lass E felonies; 3. all sentences would run concurrently for an effective six-year sentence; 4. the defendant would serve no longer than one y ear in the cou

nty workhous e butwould be released earlier upon his successful completion of the Lifelines Progra m; 5. the defendant would then be placed on community co rrect ions for the balance of his sentence; and 6. in the event the defendant subsequently violates the conditions of

community corrections, his ef fecti ve sen tence w ould be inc reased to ten years as a R ange II offender. The defendant suc ce ssfully completed the L ifelines Program and was release d to the community

corrections prog

ram on Au gust

11, 2000. On November 17, 2000, a violation warrant was issued an d alleg ed numer ous violat

ions. At hisrevoca tion hearing on March 1, 2002, the defendant conceded he was in violation of the community corrections program. After hearing the defendant’s testimony in which he sought “another chance,” the trial cour t resentenced the defendant to the Department of

Correction for an

effective term of ten y

ears as a Range I

I offender. I

n doing so, the trial court did not make findings with regard to e nhanc e ment or mitigating factors and imposed the ten-yea

r sentenc e, noting

the defe ndant “a greed to this” at

the time of his guilty plea. ANALYSIS A. Errors in Original Judgments Ini ti al ly, we not e erro rs in two of the original judgments entered on December 3, 1999, following the defenda

nt’s gui lty p lea. Coun

ts 5 and 6 charged the defe ndant with forgery

over $500, Class E felonie s; y et, the ju dgmentsreflec t the offe nse of fo rg er y o ver $1,0 00, Class D felonie s. The sentence imposed for each of these two convictions was six years which, althoug h authorized for a Range I

I offender f

or a Class D felony, is not authorized for a Rang e II offender for a Cla ss E fe lo ny. See Tenn. Code Ann. § 40-35-112(b)(4), (5). This appears to be a clerical error

and had no su bs ta nt iv e e ff

ec t u po n t he ov er al l s en te nc e b ec au se al l s en te nc es ra n c on cu rr en tl y. B. Anticipa

tory Sent ences for Comm unity Corr

ections V iolations The defendant cont end s the t rial c ourt e rred by fai ling t o make prope r sent encin g findi ngs when it re sente

nced the defendant

for violat

ion of the c ondit

ions o f com

munit y c orre ction s. We agree with this contention. When the de fendan t ente red hi s gu i lty p lea ag reeing to communit

y c orrect ions, he a

lso agreed as a part of the plea that his sentence w o uld be increased to ten years if he violated the-3-

conditions of commun

ity c orrect

i ons . At the resentencing hearing , the state argued the defenda nt should be bound by his orig inal plea agreement; the defe ndant asked for “another chance .” The trial court did not add

ress enhancement or mitigating fac tors and noted the defendant agree d to the tenyear se ntence at the time of the guilty plea. When a court opts to resentence a defenda nt after violation o f the con ditions of c ommunity corrections, it must conduct a new sentencing hearing under the Criminal Sentencing Refo rm Act. Statev. Samuels , 44 S.W.3d 48 9, 494 (Te nn. 2001) . This incl

udes the r equirem ent th at the trial court make specific findings as set forth in th

e Act. State v. Crook , 2 S.W.3d 238 , 240 (Te nn. Crim. App. 1999). In Crook , this c ourt exam ined the Cr iminal Sent

encing Reform A ct and the

Community Corrections A ct and con demned the practice of setting an incr eased sentence, pursuant to a plea agree ment, that will be

imposed if

the defendant subsequently violates community corrections. Id. at 241. Such an antici patory practi ce, in essence, increases the sente nce based solely

upon the violation of

th e c on di ti on s o f c om mu ni ty c orrections , which is impermissible. Id.; see State v. Ervin , 939 S.W.2d 58 1, 583 (Te nn. Crim. App . 1996). In Samuels , the trial court warned the defendant at the time

of sente ncing th at he would “probably”get an increased eig ht-year sentence if he violated the terms of community c orrections. 44 S.W.3d at 493. However, our supreme court noted that the trial court conducted a proper rese ntencing hearing, made e xtensive findings on enhancement

and mitig ating f

actors, and “did n ot simply impose a predetermined sentence.” Id. at 494. Under these circumstances, the court found no e rror. The case at

bar is co nt ro ll ed by Crook . A plea agreement which pre determines the increased sentence to be imposed if a defendant subsequently

violates the conditions of community corrections is improper. In Crook , we remanded for a ne w senten cing he aring u nder fa cts similar

to the ca se at bar. 2 S.W.3d at 241. We do the same in this case. C. Rem and To assist the trial court upon remand, we note the following. The trial court entered orde rs entitled “Amended Judgment” rather than the standard unifor m judgment doc ument s when it resentenced

the defendant upon revocation of communit

y corrections. See Tenn. Sup. Ct. R. 17 (setting forth the uniform judgment document to be used in sentencing); see also

Tenn. Code Ann. § 40-35-20 9(f) (r

equiring the use of

unif or m judgme

nt docume

nts). Be cause a

defenda nt is resentenced

upon rev ocation o f communit y correc tio ns, a uniform judgment document should be used. The new sentence imposed by the trial cou rt on each of the seven counts read exactly the same: “sentence increased to 10 hears @ 35% to serve.” A ten-y ear sentence exceeds the authorized punishmentfor both a Class D Range I I offender ( eight-y ear maximum) an d a C las s E R ang e II offender (four- ye ar maximum)

. See Ten n. Code Ann. § 40-35-112(b)(4), (5). As stated at the revocation hearing , it was the trial cou rt’s intention t o impose an effective ten-yea r sentence by running the four-ye ar sentencein Count 2 consecu tively to the six-y

ear sen tence in Count 1, wit

h al l o th er se nt en ce s t o r un co nc ur re nt ly.-4-

Upon remand, a separate standard judgment document should be usedfor each conviction. The judgments for Counts 1, 4 and 7, all Class D felonies, should each reflect a sentence within the range of four to eight y ears. The jud gments for Counts2, 3, 5 and 6, all Clas s E feloni es, should eachreflect a sentence

within the range of two to four y ears. The trial court should then determine if an y of th e s en te nc es sh ou ld ru n c on se cu ti ve ly. CONCLUSION Based upon our review of therecord , we rev erse and rem and fo r a new s enten cing he aring.

JOE G. RILEY, JUDGE