# FILED January 3, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE NOVEMBE R SESSION, 1999

STATE OF TENNESSEE ) C.C.A. NO. 03C01-9903-CR-00122 ) Appellee, ) ) KNOX COUNTY V. ) ) ) HON. RICHARD BAUMGARTNER RAMAAN JAMEL THOMAS, ) ) Appe llant. ) (THEF T OF P ROPE RTY)

FOR THE APPELL

ANT : FOR THE APPELLEE : WIL LI AM L.BROWN PAUL G. SUMMERS Atto rney

at Law Attorney General& Reporter 706 Walnut Street , Suite 902 Knoxvill e, TN 37902 MARVIN S. BLAIR, JR. Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue Nor th Nashville, TN 37243 RANDALL EUGENE NICHOLS District Attorn ey Ge neral MARSHA SELECMAN Assistant Distri ct Attor ney General 400 M ain P.O. Box 1468 Knoxvill e, TN 37901-1468

OPINION FILED ________________________ AFFIR MED IN PAR T; REV ERS ED IN PAR T;-2-

REMANDED FOR RESENTEN CING THOMAS T. WOODALL, JUDGE-3- 

# OPINION

Defendant Ramaan Ja mel Thomas pled guilt y in the Knox County Criminal Court to one count of theft of property wort h between $10,000.00 and $60,000.00 and the trial court imposed a sentence of three years t

o be served in the Co mm unity Alternativeto Prison Pro gr am (“CAPP”). The tr ial court subsequently r

evoked Defe ndan t’s part ici pati on in CAPP and im posed a sentence of six years i n the Tennessee Department of Corr ection, with credi t for

time s erved i n jai l and i n CAPP. Defendant challenges his sentence, rai sing the foll owing issues: 1) whether thetrialcourt err ed when it revokedhis placement i n CAPP; and 2) whether the trialcourt erred when it i ncreased his sentence to six years. After a reviewof the recor

d we affir m the judgment of the trialcourt in part, reverse the judgment i n part, and r emand this case for

resentenci ng.

I. B ACKGROUND

Defendant was pla ced in C APP on Oc to ber 17 , 1996. On November 22, 1996, a CAPP violati on warrant was fi led which al leged that Defendant had viol ated the CAP P requ iremen ts by failing to obey the laws of the United S tates and the State of Tennessee. Foll owing a hearing, the tri al court de nied the S tate ’s peti tion for revocation of Defendant’ s partici pation in CAPP. On May 23, 1997, a second CAPP violat ion warrant was filed which a lle ged that Defe ndant h ad vio late d the CAPP requirem ents by fail ing to remai n employed, fai ling to pay fees, failingto report , and faili ng to perform com munity service . Following ano ther hearing, the trial cou rt-4-

denied theState’spet it ion for revocat ion of Defen dant ’s p art ici pat ion in CA PP. On May 27, 1998, a

thi rd CAPP violat ion warrant was filed whi ch alleged t hat Defendant had viol ated t he CAPP requiremen ts by fai ling to pay fees, failingto report , fail ing to keep his curfew, fail ing to perform community service, and possessing/ owning a fi rea rm.

At the revocat ion hearing on the thi rd violat ion warrant held June 8, 1998, Herman Dickerson testifi ed that Defendant had fail ed to keep his c urfew on th ree separa te occasions i n April and May of 1998
. In add ition, De fenda nt had repea tedly failedto report for classes and meetings, had failed to perform community service according to sched ule, and h ad failed to pay fees on sche dule de spite having th e financi al means to do so. Dicke rson testified that in essence, Defendant had demonstr

ated an unwil lin gness to comply with the requir

ements of

CAPP.

Ina Akinola te stifi ed that she was Defendant’s former gi rlfr iend. On May 27, 1998, at appro ximate ly 1:00 a.m ., Defend ant left A kino la’ s res iden ce af ter the t wo had a brief argum ent. Defenda nt subsequ ently returned an d pounde d on the doo r, but Akin ola r efuse d to let h im in. D efend ant the n threa tened to dam age A kinola ’s carif she would not let hi m in the r esi dence. After some words were exchanged, Defendant and a nothe r girlfrien d got in to a ve hicle and Akinola went out side. At this point, Defen dant po inted a gu n at Akin ola and when the vehic le he wa s in started to dri ve away , Defendant fir ed a sh ot ou t th e wind ow.-5- At the conclusion of

the hearing, the tri al court stated that it had prev iou sl y found that Defendant had violated the CAPP requirements, but it ha d giv en Defendant another chance with a warningthat fut ure violations would have serious cons eque nces. The tr ial court then r evoked De fendan t’spart ici pati on in CAPP based on his failure to comply wit h the program’s requirements. The trialcourt then increased the sentence f rom three years t o six years wi thout any expl anation or further elaborati on.
On October 2, 1998, Defendant filed a “Motion to Reconsi der” his sen tence. T he trial cou rt conducted a hearing on t he motion on October 14, 1998. At the beginning of the heari ng, the trial court took judi cial not ice of t he fact th at the cri minal charges against Defendant forthe i ncident wit h Akinola had been di smissed beca use A kinola had fa iled to a ppea r for trial.
During the hearing on the motion to reconsider, Kelly Irick test ified t hat she was present duri ng the altercation bet ween Akinola and Defendant on May 27, 1998, and sh e neve r saw D efenda nt with a g un and she ne ver hea rd any sh ots fired.

Defendant testifi ed that although he was at Akino la’s res idence on May 27, 1998, he did not have a g un. Defendant cl aimed that he had fai led to report and attend CAPP classes because he had been worki ng. Defendant admit ted that he had not paid fees a cco rding to sc hedule, but he claimed that he could not pay the fees because he had to quit h is job when he was arrested for the i ncident i nvolving-6-

Akinola. Defendant also admitted that he had violated curfew, but he claimed that it only occurred once.

At the conc lusion of th e hearin g, the trial cou rt denied the mo tion to reconsi der. The court stated that t he major reason for its dec ision to rev ok e Defe ndan t’s pl acemen t in CAPP and to in crease the sentence was the inci dent involvi ng Akinola.

II.WAIVER

Initial ly, the State conten ds that D efendant waived hi s right t o appeal the revocation of his pl acement in CAPP and the incr ease of his sentence by failing to file notice of

appeal within t hirty days of the ent ry of the j udgment appealed from as required by Rule 4(a) of the Tenne ssee R ules of A ppellate Procedure. Al though the record indicates that Defendant did not f ile noti ce of ap pe al withi n the thir ty day period, Rule 4 (a) exp ressly provid es tha t in crim inal ca ses, “th e ‘notic e of ap peal’ document is not j urisdic tional a nd the fil ing of such document may be waived in the interestof justice.” W e have decided to exercise our discreti on and waive the tim ely filing of the no tice of app eal in orde r to consid er the issu es raised by Defe ndant.

II I. REVOCATI ON-7- Defendant contends that the tri al court err

ed when it revokedhis placement in CAP P.

The decision to revoke a Community Corrections sentence rests w ithin t he sound discreti on of the trialcourt and th at decisi on will not be disturbed on appeal unless there is no subs tantial e viden ce to s uppo rt the tria l court's conclus ion that a violat ion had oc curred. State v. Hark ins , 811 S.W .2d 79, 82 (Tenn. 1 991). In revi e wing the tri al court' s findi ng, it i s our obli gation to examine the recor d and determine whether the t rial cour t has exerci sed a con scienti ous ju dgment rather t han an arbitrary on e. Se e State v. Mitch ell , 810 S.W.2d 733, 735 ( Tenn. Crim. App. 1991).

Defendant contends that the tri al court i mproperly rel ied on the i ncident involvi ng Akinola as a basis for revoki ng his placement in CAPP. Specifically, Defendant contends that the tri al court could not rely on his all eged possession and firi ng of a gun because Defendant and Irick

denied that

Defendant had a gun and t he charges involvin g the in ciden t were dropp ed be caus e Akin ola faile d to appe ar for trial. However, after

observing t he testi mony and demeanor of Akinola, Irick, and Defen dant, the trial court accredited the testi mony of Akinola and f ound that Irick and Defendant had b een u ntruthf ul. Contr ary to D efend ant’s a ssertio ns, no thing in the Com munity Correc tions Act p rovides th at a vio lation of a Community Correct ions sentence must result

in a criminal convicti on in order to be considered by a trial court as a basis for revoc ation. Moreo ver, the proof of a violat ion need not be established-8-

beyond a reasonable doubt , but it is suff icient

if it allow s the trialjudge to make a conscie ntious an d intelligent d ecision. Harkins , 811 S.W.2d at 82.

Moreov er, even without t he incident involvi ng Akinola, there was substant ial otherevid ence t hat De fend ant v iol ated the r equi rements of CA PP. Ind eed, Dickerson testif ied that Defendant had fai led to keep his cur few on threesepara te occasions, had repeatedly failed to rep ort for class es and meetin gs, had failed to perform communi ty service accordi ng to schedule, and had fail ed to pay fees on sche dule despite having the fi nancial means to do so. Under these circumstances, the trial court was clearly justified in re voking D efenda nt’s place ment in CAPP. Defendant is not

entitl ed to reli ef on this issue.

IV. INCREASE I N SENTENCE

Defendant contends that the tri al court erred when it increa sed h is sentence from three to six years.

The Community Correcti ons Act provi des that once a defendant vi olates the terms of his or

her Community Correcti ons sentence, t he trialcourt may revoke t he sentence and impose a new sentence:-9- The court shal l also posses s the power to r evoke the se ntence imposed at any time due to the conduct of the defendant

or the termination or modification of the progr am to wh ich the defend ant has bee n sentence d, and the cou rt ma y resente nce the defend ant to any approp riate sente ncing alte rnati ve , includi ng incarceration, for any period of ti me up to the maximum sentence provid ed f or the offense committed, l ess any time act ually ser ved in any comm unity-bas ed altern ative to inca rceration
. Tenn. C ode An n. § 40-3 6-106(e )(4) (Sup p. 1999 ).
Although the abo ve statute make s it clear that a trial court has t he auth ority to increase the length of sentence upon t he revocati on of a Community Correcti ons sentence, there are certain re quiremen ts that must be satisfied before the trial cou rt may do so. Fir

st, the t rial cour

t must state its reas ons for imposi ng a new sentence on the reco rd. Tenn . Code Ann. §§ 40-35-2 09(c), -210(f)– (g) (1997& Supp. 1999)
. In additio n, the recor

d of the sentenci ng hearing "sh all i nclude specif ic fi ndings of fact upon which appli cation o f t he sentencing principl es was based." Tenn. Code Ann. § 4 0-35-20 9(c) (199 7). Furthe r,

(f) When ever the cou rt imposes a sentence, it shall place on the record either orally o r in writin g wha t enha ncem ent or m itigating factors it found , if any, as w ell as finding s of fact as required by § 40- 35-209
. (g) A sentence must be based on evidence i n the record of the tri al, the sentencing hear in g, the presentence report, and, the record of pri or felony convicti ons filed by the dist rict at torney generalwith the cour t as requir

ed by § 40-35 -202(a). Tenn Code Ann . § 40-35-210 (Supp. 199 9). These statu tory provisions are manda tory and the fact that thi s Court revi ews sentences de novo does not relieve the trial court from comp lying with th ese statu tory ma ndates
. State v. Ervin , 939 S.W.2d 581, 58 4 (Tenn . Crim. A pp.199 6); see also Baker v. State , 989 S.W.2d 739, 741 (Te nn. Crim . App. 19 98).-10- In the revocat ion hearing of this case, the t rial cour t made certain f indingsof fact in regard to the ba sis for revocation, bu t the trial court did notmake any findings of fact i n regard to t he basis for the increase in thelength of sentence. I n fact, t he trialcourt did not i dentify any reason whatsoever for incr easing the l ength of sentence. It is true that during the hea ring on the m otion to reconside r, the trial court indicated that it

had increased t he length of sen tence base d on D efend ant’s conduct during the inci dent with Aki nola. How ever, the t rial cour t fail ed to ident ify the enhancement and mitigat ing factors that ap plied to Defendant’s sen tence and the court failed to identify the finding s of fact thatwould have supported the appli cation of any enhancement or mitigating factor s.
Quite simply, th e trial court d id not follow the sente ncing pro cedure s set forth in the 1989 Sentenci ng Act when it i ncreased the l ength of Defendant ’s sentence. The court did not address the purposes or sentenci ng considerat ions of t he Act. Nor did the cour t set forth its finding s with respect to enhancement and miti gating factors. Thus, we cannot conduct t he statutorily mandated de novo review of t he increased sentence impos ed by the trial court up on revo cation of th e CAP P sente nc e. See State v. Cooper , 977 S.W .2d 130, 132 (Tenn. Crim . App. 1998 ); Ervin , 939 S.W.2d at 584. W e there fore re verse Defe ndan t’s incre ased sente nce a nd we rema nd this case for a ne w sen tencin g hea ring co nsiste nt with the prin ciples outline d in this opinion. See Cooper , 977 S.W .2d at 132 ; Ervin , 939 S.W.2d a t 5 84. We wish to emphasize thatalthough t here may be valid gr ounds for an inc reased sentence, the trialcourt may not i ncrease the sentence for the sole purpose of punishing-11-

Defendant for violating th e require ments of his CA PP se ntence . See Ervin , 939 S.W.2d at 583.

V. CONC LUSION

For the reasons stated above , we affirm the trial court’s re vocation o f Defe ndan t’s placem ent in CA PP. However , we reverse the increased sentence imposed by the tri al court an d we remand t his ca se for a new sentenc ing hearing consistent

with the principl es outli ned in thi s opinion.

____________________________________ THOMAS T. WO ODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JERRY L. SMITH, Judge