# FILED May 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE NOVEMB ER SESSION, 1996 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9603- CR-00087 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRI VER ROBERT ENL O ) JUDGE SOW ELL, J R., ) ) Appe llant. ) (Denial of Probation)
ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : JOH N T. C ONN ERS , III CHARLES W. BURSON 134 Riverw ood Drive Attorney Generaland Reporter Franklin, TN 37069 EUGENE J. HONEA Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 VICTOR S . JOHN SON Distri ct Attor ney General JON SEABORG Assistant Distri ct Attor ney General Washington Square, Suit e 500 222 Se cond A ve. North Nashvill e, TN 37201-1649
OPINION FILED ________________________ APPEAL DISMI SSED DAVID H. WELLES , JUD GE1 As part of the agreem ent, the Defendant’s petition to enter his guilty pleas stated, “all other presently

pending charges agai nst Defendant ar e to be dismissed. ” We cannot determine from the re cord how ma ny oth er ch arge s we re pe nding , altho ugh we do note that th e De fend ant’s petition to suspend the ba lance of hi s sentence stated that t he Defendant admitted that he committed “a number of burgl aries” i n 1994. -2-



# OPINION

This is an appeal pur

suant to Rule 3 of the Tennessee Rulesof Appe llate Procedure. The issue rai sed in thi s appeal is whet her the trial j udge erred or abused his discr

etion in denying the Defendant’s petit ion to suspend the balance of his effective six-year sentence without conducting a hearing on the merits of the petit ion. We have determined t hat this appeal should be di smissed.

On January 1, 1995 an d March 6, 1995, pursuant to a plea agr

eement, the D efen dant entered guil ty pleas t o three counts

of aggravated burglary and one count of burg lary. His plea agreement wasa “packa ge dea l,” in which the State agreed to d ism i ss other ch arges a gainst the Defen dant. 1 The plea agreement provided that two of

the Defenda nt’s th ree-year sentences would be served
consec utively to produce an effe ctive sentence of six years to be se rved in t he Davidson County R egional Workhouse. Ne ither t he Defendant’s “ petiti on to enter plea of guil ty” nor

the judgment documents ref lect any agr eement concerning a suspension of any port ion of thesentenc es. An order was enter ed stati ng that as a p art of the plea a greem ent the Defe ndan t had a greed to drug treatm ent in
a program called “Life Line Drug Treatment pr ogram,” and one of the j udgment docum ents listed a s a spec ial condition , “Life Lines .”

On November 27, 1995, the Defendant f iled apetiti on requesting that the balance of his sentences be suspended. The petiti on alleged t hat the Defendant-3-

had successfully completed the“Life Li ne Drug Treatment progr am,” and furt her alleged thatthe Defendant’ s plea agreement “ contemplated” that the Defendant could petiti on for a suspensi on of the balan ce of h is effective six-year sentence upon successful completion of the program. The t rial cour t promptly

denied the petiti on without a h earing. The Defenda nt filed a petiti on to reconsi der the denial and attached a co py o f a letter defense counsel h ad written to the assi stant district attorne y short ly after th e plea s were entere d con firming their “understandi ng” that if the Defendant successfull y completed the Life Li ne Drug Treatment program the State would “be wil ling to recommend p robation a t the hearing on his peti tion for a suspension of the balance of his effective six-year senten ce.” The trial court promptl y deni ed the petition to re conside r without a hearing. It is f rom the orders of the tria l court den ying the Defendant’s pet ition to suspend the balance of his sentences that the Defendant appeals.

On appe al, the Defendant argues t hat the trial court “exceeded it s a uthority” in denying the petit ion for a s uspended sentence wit hout con ductin g a hearing . In the even t the trial court w as not re quired b y law to con duct a hearing on the petition , the D efend ant arg ues th at the tria l judge abus ed his discreti on in denying the petit ion without a hearing.

This matter w as s ubmi t ted to thi s court for a decision on November 13, 1996. During the pendency of the appeal , the Defendant was released on parole, failed to rep ort to his p arole off icer and, effecti ve August 7, 1996, had been classif ied as “abscon ded from p arole.” This Cou rt subs eque ntly ord ered th at this appeal woul d be dis mi ssed for mootness unless the Defendant could show cause why it shoul d not be.-4- Counsel for

the Defendant subs equently f iled an af fidavi t stati ng thatthe Defendan t’s parole was revoked in December , 1996 and t he Defendant wa s curren tly serving hi s sentence in t he Department of Corre ction. In his affidavit, his defense counsel a sserted that, even though the issu es raised on a ppeal were moot insofar as

the Defendant i s concerned, t here was a routin e prac tice in the Davidson County CriminalCourt, Div ision I , of denyi ng petiti ons for suspended sentences with out a hearin g and th at these c ases g enerally e vaded a ppellate review. Counsel asserted that gui dance was needed on the i ssue of whethera petiti oner was entit led to a hear ing on a peti tion for a suspended sentence.

The doctrineof just iciabi lity prompts courts

to stay t heir hand i n cases that do not involve a genuine and e x istingcontrover sy requir ing the pres ent ad judica tion of prese nt rights. McIntyre v . Traughber , 884 S.W.2d 134, 137 (Tenn . Ct. App. 1994). The concept of mootness deals wi th the ci rcumstances that render a case no longe r justiciable. Id
. A moo t case is on e that has lost its chara cter

as a present, live cont roversy. A case willgenerally be con sidere d moot if it no longer ser

ves as a mean s to provide relief to the preva iling party. Id
. The two most recognized exceptions to the mootness rul e include issues of gr eat public interest

and importance to the administ ration of justi ce and issues capa ble of repetition ye t evading review. Id . Whether to take upcases th at fit into one of the recognized excepti ons to the mootness d octrine i s discret ionary wi th the appellate courts. Id
.

In the case sub judice , it i s obvious t hat we cannot provide any meaningf ul relief to the D efend ant eve n if we determine that the t rial j udge erred or abused his discr etion in denyin g the D efend ant’s p etition to susp end th e bala nce o f his2 W e not e tha t this is sue is dist inct fr om a m otion to red uce sent enc e pur sua nt to R ule 35 (b) of

the Tennessee

Rules of Cri minal P rocedur e. The Adviso ry Commission comments to Rule 35 make it cl ear that i

t does not alter the st atutory authorit y of trial cour

ts to modify

the sentences of individuals sentenced t o local j ails or

workhouses, but r

ather affect

s individuals sentenced t o the Department of Correct ion. -5- s entence. To order the t rial cour t to conduct

an evidenti ary heari ng on th e Defe ndan t’s petition for a su spen ded s enten ce, in vie w of the Defe ndan t’s subsequent conduct and current status, would border on the ridiculous.

Counsel for the Defendant argues that this Court should decide t he issue presented as an exception to the mootness rule because the issues are ca pable of repetition ye t evade a ppellate re view. We do not believe that our sen tencing laws manda te that a t rial judge condu ct an evidentiary he aring each a nd every ti me a defendant f iles a pet ition requesting the court to suspend the balance of
a senten ce. See Tenn. Code Ann. §§ 40-35 -21 2(c); 40-35-31 4(c). We have located no Tennessee case invol ving theprecise i ssue of whether a petiti on for modificat ion of sentence pur suant to Tennessee Code Annotated section 40- 35- 314(c) may be deni ed wi thout conduct ing an evident iary hear ing. 2 The sta tute itself provides onl y that the trial judge maintains juri sdiction over t hose defend ants sentenced to t he local j ail or workhou se, givi ng him or her the
a ut hority to modify su ch sentences, and that appli cations to reduce or al ter the
manner of service of a sente nce ma y b e made at no less than two (2) mon th intervals. Contrary to the Defendant’ s positi on, we do notbelieve t he language of the statute implies tha t a heari ng mu st be conducted for every appl icatio n. Certa inly the trial court may conduct an evid entiary hearin g in appropriate cases, but to requir

e a hearing on each and every appli cation c ould place an unreasonable burde n on the tri al court. Some discreti on is warranted.-6- From the record bef

ore us, we cannot

conc lude th at the trial j udge erred
or abused his dis cretion i n denying the petit ion for a suspension of the remainder of the sente nce witho ut an evid entiary he aring. We are provided wi th no facts of the underlyin g offense s. We have no knowledge of how many charges against the Defendant were di smissed as part of t he plea agreement. We know nothing of the Defendant’ s background, hi s potenti al or lac k of potent ial for rehabi litat ion,
or his institutional re cord . Th e order enter ed by the tr ial j udge denying the petiti on for a susp ended senten ce sta t es that the cou rt considered the “entire record.” The “entire record” before us refl ects li ttle more t han that the Defendant entered into a pl ea agreement which pr ovided for a six -year sent ence and that he completed a drug t reatment progr am while incar

cerated.

B ecause the issu es pre sente d in this appe al are m oot, this appe al is dismiss ed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JERRY L . SMI TH, J UDGE