# FILED

March 30, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9804-CC-00115

Appellee, * GIBSON COU NTY VS. * Honorable Dick Je rman, Jr., Judge COURTNEY PRICE, a.k.a

. * (Two counts of sale of less

than .5 gra m cocaine) COURTNEY ROBERTSON, *

Appellant. *

For Appellant : For Appellee : J. Diane Stoots John Knox Walkup Assistant District P ublic Defender Attorney General & Repor ter 107 South Court Square Trenton, TN 38382 Elizabeth T. Ryan Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Clayburn Peeples District Attorney General 110 College Street, Suite 200 Trenton, TN 38382

OPINION FILED: _____________________

AFFIRMED AS MODIFIED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Courtney Price, a.k.a. Courtney Robertson, pled guilty to two counts of the illeg al sale of a controlled substan ce. He appeals his five- year sentence to TDOC, claiming the trial court made no findings of fact to support the enhanced sentence. W e affirm the judgment but modify the sent ence to four years.

The defendant entered his guilty pleas in 1994. The trial court originally imposed Range I, concurrent, four- year terms to be serv

ed on community corrections. Later, how ever, the trial court

revoked the community co rrections sentence and ordered the defendant to ser ve a six-year term in TDOC. The defendant appealed, arguing that w hile the revocation w

as appropriate, the trial court did not provide any reasons for increasing the sentence from four to six y ears. This court concluded that the trial court "summarily sentenced the appellant to six years, without indi cating ... any legal basis for the increased sentenc e" and remanded for a new sentencing hearing conducted in conformity with the 1989 Sentencing Reform Act. State v. Courtney Pr ice, a.k.a. Courtney R

obertson , No. 02C01-9606-CC-00203, slip op. at 3 (Tenn. Crim. App., at Jackson , July 16, 1997).

A new sentencing heari ng was held on Februar y 17, 1998. At that time, the defendant was on parole. Defense counsel advised the t rial court that the defendant "did not wish to pursue this appeal any further." The tr ial court ruled, however, that "I don't think you can waiv e it once you've appealed it." Although a presentence report had not been r equested, the trial court concluded that one was not necessary. At that poi nt, Marcus Jones, an officer w ith the Corrections Management Corporation, w as called as a witness

for the state. Jones testified that he sought the revocation because the defendant had not maintained employ ment and had failed drug screening tests.3 The trial court imposed sentence as follows: As I understand the law .. . the Court has got the ri ght to resentence you to any r easonable sentence including and up to incarceration up to the maximum amount of the range which is six years. For whatever reason the Court of Criminal Appeals did not thi nk a six year sentenc e was appropriate so I'm going to reduce that to five yea rs. The thing they didn't seem to like was the reasons that I did not give for resentencin g you and increasing the amount of time that I gave you. It should have been fairly obvious to them. What I think the y're trying to do, they're trying to say tha

t you've got to use these enhancement and mitigating factors and I 'm not sure that's what th e law says. They need to reread the law when they look at this again. The law says that you can do it for any reason if they don't comply w

ith the terms of the community corrections program. Mr. Price, I gav e you two terms that you violated. One w

as to get a job, which

you didn't do, and the other was to not use do pe, which you did, and that's the reason that I increased the sentence. Tha t's the reason that I took you from the program. I do not understand why the Court of Criminal Appeals couldn't understand it. It seemed fairly obvious, but for, the record, t hat's why I' m doing it . This doe sn't have anything to do with enhancing and mitigating factors set out in 40-35-114. They may be trying to say that those are the only way you can enhance. That's not w hat the law says. The law

is very plain and if that's what they think the law says the y need to re read the law.

I sentence you to serve five years in the State Penitentiary.

When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at4 the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The community corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant meets the minimum requirements of the Community Corrections Act of 1985, however, does not mean that he is entitled to be sentenced und er the Act as a matter of law or right

. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are eligible for community corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving c rimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of5 committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

Once a defendant violates the ter ms of his community correcti ons sentence, the trial court may revoke the sentence and impos e a new sentence: The court shall also possess the power to revoke the sentence imposed at any time due t o the conduct of the defendant or the termination or modific ation of the program to which the defendant has been sentenced, and the court may resentence the defendant to any appropriate sentencing alt ernative, including incarceration, for any per iod of time up to the maximum sentence provided for the offense committ ed, less any time act ually serve d in any com munity-b ased alte rnative to incarceration.
Tenn. Code Ann. § 40-36-106(e)(3).

Courts of this st ate have consist ently held that whe n a trial judge imposes a sentence which exceeds the length of the initial sentence, th e trial court must conduct a sentencing hear ing pursuant to the Tennessee Cr iminal Sentencing Reform Act of 1989. See , e.g. , State v. Patty , 922 S.W.2d 102 (Tenn. 1995) (the supreme court applied the 1989 Act to review an incr

eased sentence after revocation of community cor rections); State v. Cooper , 977 S.W.2d 130 (Tenn. Crim. App. 1998); State v. Ervin , 939 S.W.2d 581, 58 3 (Tenn. Crim. App. 1996); State v. Danny Walker , No. 02C01-9706-CC-00218 ( Tenn. Crim. App., at Jackson, Apr. 22, 1998); State v. James Dantes , No. 02C01-9705-CC-00 184 (Tenn. Cr im. App., at Jackson, Dec. 15, 1997) ; State v. Robert Moore , No. 01C01-9608-CC00335 (Tenn. Crim. App., at Nashv ille, Sept. 30, 1997); State v. Twika Teague , No. 03C01-9601-CC-00027 (Tenn. Cr im. App., at Knoxvill e, May 19, 1997). In Ervin , the late Judge Joe B. Jones explained that the "Tennessee Criminal Sentencing Reform6 Act of 1989 and the Community Corr ections Act of 1985 are in pari materia ." 939 S.W.2d at 583 (citing State v. Taylor , 744 S.W.2d 25 919, 920 (Tenn. Crim. App. 1987)). If, therefore, the trial court chooses to increase the term of the sentence after revoking a community corrections sentence, a s entencing hearing must be conducted in accordance wi th the mandates of the 1989 Sentencing R eform Act. See Tenn. Code Ann. §§ 40-35-209(a) and -210(a) through (e). Before the trial court increases the sentence , it must consider the appli cation of the enhancement factors enumerated in Tenn. Code Ann. § 40- 35-114. Id. The provision of the Community Corrections Act allowing for an i ncreased sentence "should not be us ed by the trial courts for

the sole and exclusiv

e purpose of punishing an accused for violating provi sions of a community corrections sentence." Ervin , 939 S.W.2d at 583.

Here, the record demonstrates the trial court erred b

y increasing the sentence because the defendant viola ted the terms of his community c orrections contract. That is not a law ful basis for increasing the sentence. In consequence, our review of this c

ase must be de novo without the presumption of cor rectness. Ashby , 823 S.W.2d at 169.

To summarize, the defendant pled gui lty to two Class C felonies. A Range I sentence may be from thr ee to six years. Tenn. Code Ann. § 40-35- 112(a)(3). The trial cour t originally impos

ed four-year terms. The defendant did not appeal. The record does not contai n a presentence report. There w as no proof offered by the state at the sentencin g hearing of the existe nce of any enhancement factors. Because the record does not include any basis for the increase of the sentence from four to five years other than that the defendant viol ated the terms of his community correcti ons contract, the sentence for eac h conviction must be7 modified from five years to four y ears.

The judgment of the trial court i s so modified.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ Thomas T. W oodall, Judge

________________________________ John Everett W illiams, Judge