FILED

January 3, 2000

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

NOVEMBER SESSION, 1999

STATE OF TENNESSEE ) C.C.A. NO. 03C01-9903-CR-00122

)

Appellee, ) 

) KNOX COUNTY

V. ) 

)

) HON. RICHARD BAUMGARTNER

RAMAAN JAMEL THOMAS, ) 

)

Appellant. ) (THEFT OF PROPERTY) 

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM L. BROWN PAUL G. SUMMERS 

Attorney at Law Attorney General & Reporter

706 Walnut Street, Suite 902

Knoxville, TN 37902 MARVIN S. BLAIR, JR.

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

RANDALL EUGENE NICHOLS

District Attorney General 

MARSHA SELECMAN

Assistant District Attorney General

400 Main

P.O. Box 1468 

Knoxville, TN 37901-1468 

OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART; 
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REMANDED FOR RESENTENCING

THOMAS T. WOODALL, JUDGE
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OPINION

Defendant Ramaan Jamel Thomas pled guilty in the Knox County Criminal

Court to one count of theft of property worth between $10,000.00 and $60,000.00

and the trial court imposed a sentence of three years to be served in the Community

Alternative to Prison Program (“CAPP”). The trial court subsequently revoked

Defendant’s participation in CAPP and im posed a sentence of six years in the

Tennessee Department of Correction, with credit for time served in jail and in CAPP.

Defendant challenges his sentence, raising the following issues:

1) whether the trial court erred when it revoked his placement in CAPP; and

2) whether the trial court erred when it increased his sentence to six years.

After a review of the record we affirm the judgment of the trial court in part, reverse

the judgment in part, and remand this case for resentencing.

I. BACKGROUND

Defendant was placed in CAPP on October 17, 1996. On November 22,

1996, a CAPP violation warrant was filed which alleged that Defendant had violated

the CAPP requirements by failing to obey the laws of the United States and the State

of Tennessee. Following a hearing, the trial court denied the State’s petition for

revocation of Defendant’s participation in CAPP. On May 23, 1997, a second CAPP

violation warrant was filed which alleged that Defendant had violated the CAPP

requirem ents by failing to remain employed, failing to pay fees, failing to report, and

failing to perform com munity service. Following another hearing, the trial court
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denied the State’s petition for revocation of Defendant’s participation in CAPP. On

May 27, 1998, a third CAPP violation warrant was filed which alleged that Defendant

had violated the CAPP requirements by failing to pay fees, failing to report, failing

to keep his curfew, failing to perform community service, and possessing/owning a

firearm.

At the revocation hearing on the third violation warrant held June 8, 1998,

Herman Dickerson testified that Defendant had failed to keep his curfew on three

separate occasions in April and May of 1998. In addition, Defendant had repeatedly

failed to report for classes and meetings, had failed to perform community service

according to schedule, and had failed to pay fees on schedule despite having the

financial means to do so. Dickerson testified that in essence, Defendant had

demonstrated an unwillingness to comply with the requirements of CAPP.

Ina Akinola testified that she was Defendant’s former girlfriend. On May 27,

1998, at approximately 1:00 a.m ., Defendant left Akinola’s residence after the two

had a brief argument. Defendant subsequently returned and pounded on the door,

but Akinola refused to let him in. Defendant then threatened to damage Akinola’s

car if she would not let him in the residence. After some words were exchanged,

Defendant and another girlfriend got into a vehicle and Akinola went outside. At this

point, Defendant pointed a gun at Akinola and when the vehicle he was in started to

drive away, Defendant fired a shot out the window.
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At the conclusion of the hearing, the trial court stated that it had previously

found that Defendant had violated the CAPP requirements, but it had given

Defendant another chance with a warning that future violations would have serious

consequences. The trial court then revoked Defendant’s participation in CAPP

based on his failure to comply with the program’s requirements. The trial court then

increased the sentence from three years to six years without any explanation or

further elaboration.

On October 2, 1998, Defendant filed a “Motion to Reconsider” his sentence.

The trial court conducted a hearing on the motion on October 14, 1998. At the

beginning of the hearing, the trial court took judicial notice of the fact that the criminal

charges against Defendant for the incident with Akinola had been dismissed

because Akinola had failed to appear for trial.

During the hearing on the motion to reconsider, Kelly Irick testified that she

was present during the altercation between Akinola and Defendant on May 27, 1998,

and she never saw Defendant with a gun and she never heard any shots fired. 

Defendant testified that although he was at Akinola’s residence on May 27,

1998, he did not have a gun. Defendant claimed that he had failed to report and

attend CAPP classes because he had been working. Defendant admitted that he

had not paid fees according to schedule, but he claimed that he could not pay the

fees because he had to quit his job when he was arrested for the incident involving
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Akinola. Defendant also admitted that he had violated curfew, but he claimed that

it only occurred once.

At the conclusion of the hearing, the trial court denied the motion to

reconsider. The court stated that the major reason for its decision to revoke

Defendant’s placement in CAPP and to increase the sentence was the incident

involving Akinola.

II. WAIVER

Initially, the State contends that Defendant waived his right to appeal the

revocation of his placement in CAPP and the increase of his sentence by failing to

file notice of appeal within thirty days of the entry of the judgment appealed from as

required by Rule 4(a) of the Tennessee Rules of Appellate Procedure. Although the

record indicates that Defendant did not file notice of appeal within the thirty day

period, Rule 4(a) expressly provides that in criminal cases, “the ‘notice of appeal’

document is not jurisdictional and the filing of such document may be waived in the

interest of justice.” We have decided to exercise our discretion and waive the timely

filing of the notice of appeal in order to consider the issues raised by Defendant.

III. REVOCATION
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Defendant contends that the trial court erred when it revoked his placement

in CAPP. 

The decision to revoke a Community Corrections sentence rests within the

sound discretion of the trial court and that decision will not be disturbed on appeal

unless there is no substantial evidence to support the trial court's conclusion that a

violation had occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In

reviewing the trial court's finding, it is our obligation to examine the record and

determine whether the trial court has exercised a conscientious judgment rather than

an arbitrary one. See State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.

1991).

Defendant contends that the trial court improperly relied on the incident

involving Akinola as a basis for revoking his placement in CAPP. Specifically,

Defendant contends that the trial court could not rely on his alleged possession and

firing of a gun because Defendant and Irick denied that Defendant had a gun and the

charges involving the incident were dropped because Akinola failed to appear for

trial. However, after observing the testimony and demeanor of Akinola, Irick, and

Defendant, the trial court accredited the testimony of Akinola and found that Irick and

Defendant had been untruthful. Contrary to Defendant’s assertions, nothing in the

Community Corrections Act provides that a violation of a Community Corrections

sentence must result in a criminal conviction in order to be considered by a trial court

as a basis for revocation. Moreover, the proof of a violation need not be established
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beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a

conscientious and intelligent decision. Harkins, 811 S.W.2d at 82.

Moreover, even without the incident involving Akinola, there was substantial

other evidence that Defendant violated the requirements of CAPP. Indeed,

Dickerson testified that Defendant had failed to keep his curfew on three separate

occasions, had repeatedly failed to report for classes and meetings, had failed to

perform community service according to schedule, and had failed to pay fees on

schedule despite having the financial means to do so. Under these circumstances,

the trial court was clearly justified in revoking Defendant’s placement in CAPP.

Defendant is not entitled to relief on this issue.

IV. INCREASE IN SENTENCE

Defendant contends that the trial court erred when it increased his sentence

from three to six years.

The Community Corrections Act provides that once a defendant violates the

terms of his or her Community Corrections sentence, the trial court may revoke the

sentence and impose a new sentence:
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The court shall also possess the power to revoke the sentence imposed at

any time due to the conduct of the defendant or the termination or modification

of the program to which the defendant has been sentenced, and the court

may resentence the defendant to any appropriate sentencing alternative,

including incarceration, for any period of time up to the maximum sentence

provided for the offense committed, less any time actually served in any

comm unity-based alternative to incarceration. 

Tenn. Code Ann. § 40-36-106(e)(4) (Supp. 1999). 

Although the above statute makes it clear that a trial court has the authority

to increase the length of sentence upon the revocation of a Community Corrections

sentence, there are certain requirements that must be satisfied before the trial court

may do so. First, the trial court must state its reasons for imposing a new sentence

on the record. Tenn. Code Ann. §§ 40-35-209(c), -210(f)–(g) (1997 & Supp. 1999).

In addition, the record of the sentencing hearing "shall include specific findings of

fact upon which application of the sentencing principles was based." Tenn. Code

Ann. § 40-35-209(c) (1997). Further, 

(f) Whenever the court imposes a sentence, it shall place on the record

either orally or in writing what enhancement or m itigating factors it found, if

any, as well as findings of fact as required by § 40-35-209. 

(g) A sentence must be based on evidence in the record of the trial, the

sentencing hearing, the presentence report, and, the record of prior felony

convictions filed by the district attorney general with the court as required by

§ 40-35-202(a). 

Tenn Code Ann. § 40-35-210 (Supp. 1999). These statutory provisions are

mandatory and the fact that this Court reviews sentences de novo does not relieve

the trial court from complying with these statutory mandates. State v. Ervin, 939

S.W.2d 581, 584 (Tenn. Crim. App.1996); see also Baker v. State, 989 S.W.2d 739,

741 (Tenn. Crim. App. 1998). 
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In the revocation hearing of this case, the trial court made certain findings of

fact in regard to the basis for revocation, but the trial court did not make any findings

of fact in regard to the basis for the increase in the length of sentence. In fact, the

trial court did not identify any reason whatsoever for increasing the length of

sentence. It is true that during the hearing on the motion to reconsider, the trial court

indicated that it had increased the length of sentence based on Defendant’s conduct

during the incident with Akinola. However, the trial court failed to identify the

enhancement and mitigating factors that applied to Defendant’s sentence and the

court failed to identify the findings of fact that would have supported the application

of any enhancement or mitigating factors.

Quite simply, the trial court did not follow the sentencing procedures set forth

in the 1989 Sentencing Act when it increased the length of Defendant’s sentence.

The court did not address the purposes or sentencing considerations of the Act. Nor

did the court set forth its findings with respect to enhancement and mitigating factors.

Thus, we cannot conduct the statutorily mandated de novo review of the increased

sentence imposed by the trial court upon revocation of the CAPP sentence. See

State v. Cooper, 977 S.W.2d 130, 132 (Tenn. Crim. App. 1998); Ervin, 939 S.W.2d

at 584. We therefore reverse Defendant’s increased sentence and we remand this

case for a new sentencing hearing consistent with the principles outlined in this

opinion. See Cooper, 977 S.W.2d at 132; Ervin, 939 S.W.2d at 584. We wish to

emphasize that although there may be valid grounds for an increased sentence, the

trial court may not increase the sentence for the sole purpose of punishing
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Defendant for violating the requirements of his CAPP sentence. See Ervin, 939

S.W.2d at 583.

V. CONCLUSION

For the reasons stated above, we affirm the trial court’s revocation of

Defendant’s placement in CAPP. However, we reverse the increased sentence

imposed by the trial court and we remand this case for a new sentencing hearing

consistent with the principles outlined in this opinion.

 

 ____________________________________

THOMAS T. WOODALL, Judge

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JERRY L. SMITH, Judge