# FILED
October 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9707-CC-00311 Appellee, ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY TH OMAS, JR., KENNETH W. ERVIN, ) JUDGE ) Appellant. ) (Resentencing)

D I S S E N T

I respectfully disagr

ee with the majority

’s con clusion th at if the trial court finds that the defenda nt’s g uilty pleas were conditioned upon the concurrent service of his se ntenc es, he sho uld then be allowed to withdra w his guilty pl eas. In m y view, because the defendant has already been res entenced outside of the plea agreement for violatingthe terms of his community corrections contract, the plea agreement is no longer an issue in this case.

The majority relies upon State v. Burkhart , 566 S.W.2d 871 (Tenn. 1978); State v. Jon Connors , C.C.A. No. 03C01-9506-CC-00176, Blount County (Tenn

. Crim. App. filed December 17, 1996, at Knox ville), as authority for the proposition that when a defendant’s plea bargain is conditioned upon the imposition of concurrent sentences and he or she is originally sentenced to concurrent sentences, he or she must be allowed t o withdraw his or her plea before a court exercises its authority to correct the defendant’s
s enten ce by imposing consecuti ve sentences pursuant to Tenness ee Rule of Criminal2

Procedure 32(c). In my view, however, Burkhart and Connors are distinguishable from the instant case because neither of these cases involved a defendant whose community corrections

contract was revo ked be fore the Rule 32 error w as caught and corrected, which is the situati on here.

When a defendant violates the terms of his community corrections contract, the trial court has

the statutory authority

to resentence the defendant, up to the maximum sentence provided for the offense committed. T.C .A. § 40-36-106(4). Resentenci ng a defendant upon revocation of his or her community corrections c ontract is done regardless of whether thedefendant’s original sentenc e wasimposed pursuant to a plea bargain agreement. See, e.g. , State v. Ervin , 939 S.W.2d 581, 58 4 (Tenn. Cri m. App. 1 996) ; State v. Randall Dean Cooper , C.C.A. 03C01-9601-CC-00031, Sevier County (Tenn. Crim. App. filed April 7, 1998, at Knoxville)(no ting that the defendant’s new sente nce follo wing revocation of community corrections is based on the evidence presented at trial and at the sentencing hearing, the presentence report, and the defendant’s prior convictions) . In this way, once a defendant ’s behavior causes his community

corrections sentence to be revoked, his behavior, in essence, also cau s es any prior plea bargain a greement to no longer be controlling or even ex ist. Thus, once a defendant accepts a sentence in the community corrections program, heis presumed to know the law and know

that if he violates the ter ms of his community correcti ons contract, he will be riskin g an increased sentence.

In the insta nt case, t he defe ndant’s original se ntence in volve d a term o n community

corrections, pursuant

to a plea agreement. The defendant’s behavior caused his community corrections c ontract to be revoked, at w hich time the defendant was resentenced witho ut any regard to his p rior plea agreement. The defendant c oncedes3

thatthe increased sentence of five years he receivedafter revocation of his communit y corrections

contract was proper, even though the record suggests it was apparentl y based solely upon the State’s recommendation. Cf. id. After the trial court rev iewed the defendant’s cas e file an d realized that his conc urrent sentences were i llegal, the trial court imposed consecut ive sentences upon the defendant, as Rule 32 (c)(3)(C) requires. Since the defendant has already been res entenced without r

egard to his prior plea
a greement, I see no reason why the pl ea agreement should now be r esurrected in the sense that the defendant should be a llowed to withdraw his guilty pleas.

This is not a situation wher e the defendant is allowed to withdraw his guilty pleas because the original terms of his pleabargain agreement, the very thing for which the defendant negotiated in exchange for his guilty pleas, cannot be enforced. See, e.g. , Burkhart , 566 S.W.2d at 873; Connors , C.C.A. No. 03C01-9506-CC-00176. Rather, the plea bargain agreement in this case has already been satisfied; the defendant received the benef it of hi s bargain when he w as sentenced pursuant to his pl ea agreement. However, when the

defendant violated the terms of his community corrections contract and was resentenced without regard to his prior agreement, as § 40-36-106(4) provides, the defendant’s plea bargain agr eement ceased being an issue. U nder th es e circumstances, and regardless of whether the defendant’s guilty pleas were conditioned upon the imposition of concurrent s entences, th e defendant should not be entitled to withdraw his guilty pleas before his illegal sentenc e is correcte d to r eflect c onsecut ive rather than concurrent sentences, as required by Rule 32(c)(3)(C).

I also respectfully disa

gree th a t the defendant’s sentence on each count should be redu ced to fi ve years because, in my view, enhancement factor ( 3), that the offenses involved more than one victim, see§ 40-35-114(3), does apply to enhance the4

defendant’s sentences in th e aggravated burgl ary cases. A “victim” is defined as “a person or entity that is inj ured, killed, had property stolen, or

had property destroy

ed by the perpetrator of the crime.” See State v. Raines , 8 82 S.W.2d 376 , 384 (Tenn. C rim. App

. 1994). “Injury” is not limited solely to physical injury, but can also enco mpas s emotional or psychol ogical inj ury. See State v. Michael Wilson , 01C01-9602-CC-00073, Putnam County (Tenn. Crim. App. filed July 31, 1997, at Nas hville). Thus, this C ourt has surmised that “upon proper proof, a single bur glary could victimize multiple residents wh o were absent at the time of the burglary.” Id.

In the instant case, the record reflects that the burglary charged in C-8252 has caused the young childr en of the family whose home wa s burglarized to be quite fearful to be in their own home. This type of emotional injury suffered by more than one person living in the home i s enough to justify enhanci ng the defendant’s sentence under § 40-35-114(3) on the aggr avated burglary c

ount charged in C-8252. Iwould hesitate to applythis factor

to enhance the sentence on the aggravated burglary charged in C-8088, though, because the record fails to disclose more than one individual who was injured, and thus victimized,by that burglary

. See, e.g. , State v. Clabo , 905 S.W.2d 197 (Tenn. Crim. App. 1995). Never theless, considering th e trial court’s findings and the evidence supporting those findings, I would conclude that the defendan t has not o vercome the presumption of correc tness to s how how a sentenc e of six years for each offense is inappropriate in this cas e.

_______________________________ JOHN H. PEAY, Judge