### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE, v. ARCENTA VAN HARRISON.
Direct Appeal from the Criminal Court for Davidson County

No. 98-A-577 Seth Norman, Judge

No. M1999-01184-CCA-R3-CD - Decided April 7, 2000

The appellant, Arcenta Van Harrison, pled guilty in the Davidson County Criminal Court

to three (3) counts of theft of property over $500 and two (2) counts of theft of pr operty over $1,000. The trial court sentenced

the appellant to c

oncurrent terms

of four (4) y

ears for the the

ft over $500 count

s as a Range II offender

and eight (8) years for the theft over $1,000 counts as a Range III

offender. The trial court ordered that the appellant serve his sentence on community corrections. A warrant was subsequent ly issued alleging that t

he appellant had

violated the terms

of his community corrections sentence. After an evidentiary hearing, the trial court re voked community corrections and re-sentenced the appellant to an effective term of nine (9) years incarceration. On appeal, the appellant contends that: (1) the tria l court erred in r

evoking his

community corrections; (2) the trial court er red in enhancin

g his sentence to nine (9) years; and (3) the trial cour t imposed illegal sentences for three (3) of his convictions. After a review of the recor d b efore this Court, we conclude that the trial cour t did not err in

revoking the appellant’s community corrections sentence; and we affirm that po

rtion of the trial c

ourt’s judgment.

However, because the trial court did not conduct an appropriate sentencing hearing, before i ncreasi ng the appellan

t’s sentence, we

reverse and remand t his case to the trial co urt for re-s entencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court o

f Davidson Court is Affirmed in Part and Reversed and Remanded in Part

S MITH , J., delivered the opinion of the court, in which H AYES , J., and O GLE , J. joined. Jeffrey A. DeVasher, As sista nt Public Defender, and Ralph Newman, Assistant Public Defender, Nashville, Tennessee, for appellant Arcenta Van Harrison.

Paul G. Summers, Attorne y General

and Reporter, an

d David H. Findley

, Assistant A

tt orney General, Nashville, Tennessee, for appellee, State of Tennessee
OPINION In June 1998, the appellant pled guilty to three (3) counts of theft over $500 and two (2) counts of theft over $1,000. The trial court sentenced the appellant to concurrent terms of four (4) years for eachcount of theft over $500 and eight (8) years for e ach count of theft over $1,000. The appellant’s

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sentences were to be served in community corrections. I n November, the state issued a warrant alleging that the appellant had violated the terms of his community corrections sentence. Nam ely, the warrant alleged that the appellant failed to report with his case officer as re quired and failed to “attend Drug Court status check.” At the revocation hearing, the appellant conceded that he violated the terms of his alternative sentence as alleged in the warrant. The appellant claime

d that he suffere

d a lapse of judgment and pleaded with the court for a second chance. At the conclusion of the proof, the trial court revoked the appellant’s community corrections sentence. Although no sentencing hearing was held, the trial court then re-sentenced the appellant to an effective sentence of nine (9) y ears incarceration. From the trial co

urt’s ruling, the

appellant now bri

ngs this appeal.

II.

The appellant argues that the trial court erred in revoking his community co rrec tions. Spe cif ica lly, he claims that the violations alleged in the warrant were not so severe as to warrant complete revocation of his community corrections sentence. In a revocation pro

ceeding, the st

ate has the burde

n of proving th

e violatio n by a preponderance

of the evidence. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). A trial court may revoke a defendant’s community corrections sentence “at any time due to the conduct of t h e defendant . . . and the court m

ay resente nce the defenda

nt to any appropriate sentencing alternative, including incarceration, for any period of time up to the maximum sentence provid ed for the offen

se commi tted.” Tenn. Code Ann. § 40 -36-106(e)(4) . Before the tr ial court may

revoke community corrections,

the record must contain sufficient evidence to permit the court to make an intelligent and conscientious decision. State v. Harkins , 811 S.W.2d at 82. On a ppeal, the trial co urt’s order revoking a

community

corrections sen

tence is subject to

reversal only

upon a showing of

an abuse of discretion. Id. In order for this Court to find an abuse of discretion, we must determine that the record cont ains no substantial evidence sufficient to support the trial judge’s conclusion that the appellant violated the terms of his sentence. Id. At the beginni ng of the revo cation hear ing, the appellant conceded that he had violated the terms of his probation. A trial court has the authority to revoke a defendant’s community corrections sentence when he violates the conditions of that sentence. See Tenn. Code Ann. § 40-36-106(e)(4). Thus, the record fully supports the trial court’s determination that the appellant violate

d the terms of his sentence, and

the trial court did not abuse its discretion in revoking the appellant’s commu

nity corrections sentence. This issue has no mer

it.

III.

In his next issue, the appellant alleges tha t the tr ial court erred in re-sentencing him to an effectivesentence of nine(9) years incarceration. He asserts that the trial c ourt failedto conduct an appropriate

sentencing hearing under the Criminal Sentencing Reform Act of 198 9. Thus, he maintains that this Court must remand this case to the trial court for a proper sentencing he aring

. We must agree.

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Under Tenn. Code Ann. § 40-36- 106(e)(4 ), after revoki ng a defendan

t’s community corrections sentence, the tr ial court has the a

uthorit y to re-sent

ence the defendant. A sentence imposed pursuant to this provision may exceed the length of the sentence initially imposed by the trial court without offending principles of double jeopardy under the fede ral and state constitu

tions. Statev. Griffith , 787 S.W.2d 340, 341-4 2 (Tenn. 1990). Ho

wever, “when a

trial court opts to impose a sentence wh ich exceeds the lengt h of t he initial sentenc e based on a brea

ch of the terms of the sentence, the trial court must conduct a sentencing hearing pursuant to the Tennessee Criminal Sentencing Reform Act of 1989.” State v. Ervin , 939 S.W.2d 581, 583 (T enn. Crim. App. 1996);
see als o State v . Cooper , 977 S.W.2d 130, 132 (Tenn. Crim. App. 1998). As a result, if the trial court enhances the original sentence, the court must state on the record its re asons f or imposi ng a new sentence. State v. Ervin , 939 S.W.2d at 583. In the present case, the trial court did not conduct a sentencing hearing prior to enhancing the appellant’s sentence to nine (9) years incarceration. At the conclusion of the revocation hearing, the trial judge considered the appellant’s lengthy criminal history and stated, “I increase his sentence to nine years to the Department of Corrections and sentence him to serve e very day of it.” This Court’s review of the sentence imposed by the trial court

is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judg e considered the

sentencing prin

ciples and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The trial court didnot follow the guidelines set forth in the 1989 Sentencing Act, nor did it address the purposes or sentencing considerations of the Act. Moreover, with the exception of finding that the appellant had a prior criminal history under Tenn. Code Ann. § 40-35-114(1), the trial court did not make the required findings of fac

t with respect to enhancement and mitigating factors. Finally , we also note,
as conceded by the State, that nine ye ars is beyond

the statutorily mandated sentence for a R ange II offender convicted of a Class E felony. The maximum sentence for such a conviction is fou

r years. We assume the trial court intended the imposition of a nine yea

r sentence to app

ly only to the Ran ge III sentences for the Class D felonies of which the appellant

was convicted, ho

wever the reco

rd is notclear on this point. On remand and following an appropriate sentencing hearing, if any sentence increase is imposed, the trial court should specif y on the record which convictions are the subject of increased sentence.

IV.

The trial court

failedto conduct a proper sentencing hearing prior to increasing appe llant’s sentence followi ng revocation of community corrections. According ly, we must reverse the trial court’s judgment as to the increase in the appellant’s sentence and remand this case to the trial court for a new sent encing heari ng.