IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 11, 2001 Session

STATE OF TENNESSEE v. DALE GODWIN

Direct Appeal from the Circuit Court for Obion County

Nos. 9654, 9655, 9656, 9713 William B. Acree, Judge

No. W2001-00212-CCA-R3-CD - Filed December 14, 2001

In 1995, the Defendant pled guilty to four felony drug charges for which he received three

concurrent eight-year sentences and one concurrent five-year sentence, to be served on Community

Corrections. Subsequently, the trial court revoked the Defendant’s Community Corrections

sentences and ordered him to serve twelve years in the Tennessee Department of Correction. The

Defendant now appeals, alleging that the trial court lacked jurisdiction to re-sentence the Defendant

and that the twelve year sentence was improperly imposed. Finding no error, we affirm the

judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W.WEDEMEYER,J., delivered the opinion of the court, in which THOMAS T.WOODALL and

NORMA MCGEE OGLE, JJ., joined.

Victor L. Ivy and Danny R. Ellis (on appeal), Jackson, Tennessee; and Kevin McAlpin, Assistant

District Public Defender (at trial), Dresden, Tennessee, for the Appellant, Dale Godwin.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;

Thomas A. Thomas, District Attorney General; James T. Cannon, Assistant District Attorney

General; and James David Kendall, Assistant District Attorney General, for the Appellee, State of

Tennessee.

OPINION

I. FACTS

On February 7, 1995, the Obion County Grand Jury indicted the Defendant for three counts

of selling .5 grams or more of cocaine, a Class B felony; one count of possession with intent to sell

cocaine, a Class C felony; and one count of public intoxication, a Class C misdemeanor.

On February 27, 1995, the Defendant pled guilty to the three charges of selling cocaine and

was sentenced to eight years for each conviction, to be served on Community Corrections with
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Westate Corrections Network. The trial court ordered that each of the eight-year sentences run

concurrently with the others. In addition, each judgment indicates that the Defendant was to serve

six months in jail. The Defendant also pled guilty to the Class C felony charge of possession of

cocaine with intent to sell and received a five-year sentence with Westate Corrections Network. The

Defendant was ordered to serve six months in jail, and the sentence was to be served concurrently

with the other three sentences. 

Subsequently, a Community Corrections violation report was filed alleging that on March

8, 1998, the Defendant was arrested and charged with DUI and evading arrest. Westate Corrections

Network filed a petition requesting a criminal summons be issued for the Defendant. The trial court

entered an order on June 16, 1998, issuing a criminal summons for the Defendant and setting a

hearing on the Community Corrections violation for June 22, 1998. There is no indication in the

record that the Defendant was ever served with the summons or that a hearing was held. On

November 22, 2000, a supplemental Community Corrections violation report was filed, alleging that

on November 16, 2000, the Defendant was found guilty in the Obion County General Sessions Court

of evading arrest. Again, pursuant to a petition filed by Westate Corrections Network, the trial court

ordered the issuance of a capias for the arrest of the Defendant. At the time of the order, the

Defendant was being held in the Obion County Jail, and the capias was served. 

On December 8, 2000, the trial court conducted a hearing and determined that the Defendant

had violated the terms of his Community Corrections sentence. A sentencing hearing was held on

January 12, 2001, at which time the trial court sentenced the Defendant to twelve years in the

Tennessee Department of Correction on each of the three Class B felonies, with the sentences to run

concurrently, and six years in the Tennessee Department of Correction for the Class C felony

conviction, also to run concurrently with the other charges.

II. ANALYSIS

A. Jurisdiction to Re-sentence

There are four judgments in this case, three for selling .5 grams or more of cocaine, a Class

B felony and one for possession with intent to sell cocaine, a Class C felony. Each judgment is dated

February 27, 1995, and indicates that theDefendant is sentenced to a “community based alternative,”

in addition to a six-month county jail sentence. Each judgment specifies “Westate Corrections

Network” as the community based alternative. Each judgment for a Class B felony contains in the

“Special Conditions” portion of the judgment the following language: “8 years W/WCN to serve 6

months in Cty Jail.” The judgment for the Class C felony specifies “5 years W/WCN to serve 6

months in Cty Jail.”

In a subsequent order dated March 11, 1995, the following language appears:

In this cause, the Court has sentenced the Defendant to the State Penitentiary and has

found the Defendant unsuitable for state probation. The Court finds the Defendant

to be a suitable candidate for intensive supervision in Community Corrections.
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IT IS THEREFORE, ORDERED, by the Court that the Defendant be sentenced to

the Community Corrections Program in the 27th Judicial District for a period of 8

years and to be credited with 144 days on his sentence.

The Defendant argues that the trial court sentenced him to the state penitentiary and therefore

had no jurisdiction to increase the length of the Defendant’s sentence. The State argues in its brief

that the trial court “effectively suspended service in the state penitentiary in favor of the community

corrections program.” We agree with the State. In our view, the judgments filed on February 27,

1995 control the Defendant’s sentences, and these judgments clearly indicate sentences to be served

on Community Corrections rather than in the state penitentiary. The order of March 11, 1995

appears to be a “fill in the blank” form order for Community Corrections cases in Obion County.

The judgments are controlling as to the terms and conditions of the Defendant’s original sentences,

and the Defendant’s argument that the trial court lacked jurisdiction to increase the length of the

sentences after revoking the Community Corrections sentences is without merit.

B. Re-sentencing

Assuming that a new sentencing hearing is conducted, a trial court generally has the authority

to increase the length of a revoked Community Corrections sentence up to the maximum sentence

within the appropriate sentence range for the offense. State v. Samuels, 44 S.W.3d 489, 493 (Tenn.

2001); see also Tenn. Code Ann. § 40-36-106(e)(2). The trial court in this case conducted a “new”

sentencing hearing on January 12, 2001.

The Defendant argues that the trial courtwas predisposed to imposing the maximum sentence

based on comments it made during the violation hearing on December 8, 2000. At that time, the

following exchange occurred between the trial court and counsel:

Mr. McAlpin: Your Honor, it’s going to be a plea of guilty, but I would at least like

to argue.

The Court: Well, let me tell you this before you do that. I’m going to order a

sentencing hearing in this case and consider increasing his sentence. Isn’t eight years

the controlling sentence in a Class B felony?

General Kendall: Yes, Your Honor, I believe that is the controlling - - -

The Court: And I think this is one of these deals he probably figured he’d be getting

out a lot quicker if he goes to the Department of Correction, and I’m not so sure

that’s the proper thing to do. I can increase his sentence of 12 years, provided the

evidence at the sentencing hearing justified it. So, I’m going to order a sentencing

hearing in this case. If you want to talk with him before he enters a plea of guilty,

you can do so.

The State argues in its brief that the trial court was “merely informing defense counsel of all

of the available options, prior to entry of a guilty plea.” We agree. In our view, the comments by

the trial court do not indicate a predisposition to sentence the Defendant to the maximum sentence

of twelve years. The trial judge is, in our view, merely discussing the range of possible outcomes

in this case. We note that the trial judge said that he would “ . . . consider increasing [the
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Defendant’s] sentence.” (Emphasis added). He also stated, “I can increase his sentence of twelve

years, providing the evidence at the sentencing hearing justified it.” (Emphasis added). This

language clearly indicates that the trial court had no predisposition other than to consider all of the

appropriate options at a sentencing hearing to be set at a later date.

Concerning the propriety of the “new” sentences imposed, our analysis begins with wellsettled principles that govern our review of a sentence determination imposed under the Criminal

Sentencing Reform Act of 1989. When a criminal defendant challenges the length, range, or manner

of service of a sentence, the reviewing court must conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d). This presumption, however, “is conditioned upon the affirmative showing in the record that

the trial court considered the sentencing principles and all relevant facts and circumstances.” State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to show such

consideration, the review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123

(Tenn. Crim. App. 1992).

In making its sentencing determination, the trial court, at the conclusion of the sentencing

hearing, determines the range of sentence and then determines the specific sentence and the propriety

of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the

sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to

sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)

evidence and information offered by the parties on the enhancement and mitigating factors, (6) any

statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.

Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is

the minimum within the applicable range unless there are enhancement or mitigating factors present.

Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start

at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and

then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).

The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d

at 123. However, the sentence must be adequately supported by the record and comply with the

purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237

(Tenn. 1986).

When imposing a sentence, the trial court must make specific findings of fact on the record

supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any

enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial

court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of

recording the court’s reasoning is to guarantee the preparation of a proper record for appellate

review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
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case indicates that the trial court adequately considered the enhancement and mitigating factors as

well as the underlying facts, our review is de novo with a presumption of correctness.

If our review reflects that the trial court followed the statutory sentencing procedure, that the

court imposed a lawful sentence after having given due consideration and proper weight to the

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are

adequately supported by the record, then we may not modify the sentence "even if we would have

preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The

defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d

at 169.

In sentencing the Defendant, the trial court applied enhancement factor (1), that “[t]he

[D]efendant has a previous history of criminal convictions or criminal behavior,” Tenn. Code Ann.

§ 40-35-114(1); and enhancement factor (8), that “[t]he [D]efendant has a previous history of

unwillingness to comply with the conditions of a sentence involving release in the community . . .

.” Id. § 40-35-114 (8). Thus, the trial court found that two enhancing factors applied in sentencing

the Defendant. Additionally, the trial court found that no mitigating factors applied.

We agree with the trial court concerning both of the enhancement factors applied in this case.

The record does indicate that the Defendant has a previous history of criminal convictions or

criminal behavior. After initially being sentenced to Community Corrections, the Defendant was

convicted for driving under the influence, public intoxication, and twice for evading arrest. The presentence report indicates a prior conviction for possession of a weapon by a convicted felon.

Additionally, as the State points out in its brief, there are two juvenile adjudications that the trial

court apparently did not consider but could have properly considered as an enhancement factor under

Tennessee Code Annotated § 40-35-114(20).

In order for enhancement factor (8) to apply, the State must prove that the defendant “has a

previous history of unwillingness to comply with the conditions of a sentence involving release in

the community.” Tenn. Code Ann. § 40-35-114(8) (1997). In State v. Adams, 45 S.W.3d 46 (Tenn.

Crim. App. 2000), this Court addressed a case wherein the defendant challenged, inter alia, the trial

court’s application of enhancement factor (8) to his sentences for offenses that he committed while

on probation. Finding factor (8) inapplicable, we held as follows:

[The defendant] argues that the trial court should not have considered his previous

unwillingness to comply with a sentence involving release in the community. The

record reflects that the trial court applied this factor because [the defendant] was on

probation at the time he committed the present offenses. We hold that the trial court

erred by applying the enhancement factor. The commission of the offense for which

the defendant is being sentenced does not make factor (8) applicable because there

must be a previous history of unwillingness to comply.

Adams, 45 S.W.3d at 60 (citing State v. Hayes, 899 S.W.2d 175, 185-86 (Tenn. Crim. App. 1995)).

Similarly, in Hayes this Court noted that “the commission of the offense for which a defendant is
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being sentenced should not make factor (8) applicable, . . . there must be a previous history of

unwillingness.” Hayes, 899 S.W.2d at 186. (Emphasis in original).

In the case sub judice, Defendant was resentenced pursuant to the provisions of the

Community Corrections Act found in Tennessee Code Annotated section 40-36-106(e)(4). Under

Hayes and Adams, if the commission of the offenses for which Defendant was being resentenced

had been committed while he was on probation or some other form of release, factor (8) would

clearly not be applicable. Initially, it might be said that factor (8) would likewise be inapplicable

in a situation identical to this case, where the defendant commits various crimes while being released

under the Community Corrections Act. In other words, the proper question is, did the crimes

committed by Defendant while on community corrections constitute a “previous history” of

unwillingness to comply with the conditions of release in the community? Thus, the issue to be

resolved by this Court is whether the “previous history” means a history previous to the commission

of the offense, or previous to the sentencing hearing. Clearly, when the trial court initially sentences

a defendant for a crime, Hayes and Adams state that the commission of the offense for which the

sentence is being imposed cannot be used to establish factor (8). 

However, upon examining Tennessee Code Annotated section 40-36-106(e)(4), it may be

concluded that a defendant’s “previous history” upon resentencing after revocation of community

corrections can include conduct by the defendant while serving the community corrections sentence.

Tennessee Code Annotated section 40-36-106(e)(4) states as follows: 

The court shall also possess the power to revoke the sentence imposed at any time

due to the conduct of the defendant or the termination or modification of the program

to which the defendant has been sentenced, and the court may resentence the

defendant to any appropriate sentencing alternative, including incarceration, for any

period of time up to the maximum sentence provided for the offense committed, less

any time actually served in any community-based alternative to incarceration. 

(Emphasis added).

Upon revocation of a community corrections sentence, whenever the trial court opts to

impose a sentence which exceeds the length of the initial sentence, a sentencing hearing pursuant

to the principles of the Sentencing Reform Act must be conducted. State v. Crook, 2 S.W.3d 238,

240 (Tenn. Crim. App. 1998). If the sentence is increased, the trial court must find that appropriate

enhancement factors exist. The trial court cannot arbitrarily establish the length of a new sentence,

and an increase in the sentence cannot be used for the sole and exclusive purpose of punishing a

defendant for violating the provisions of a community corrections sentence. State v. Cooper, 977

S.W.2d 130, 132 (Tenn. Crim. App. 1998) (citing State v. Ervin, 939 S.W.2d 581 (Tenn. Crim. App.

1996)). 

We conclude that facts which have developed between the time a defendant is initially

sentenced to community corrections, and the time that the sentence is subsequently revoked, may

be considered in applying enhancement factors and increasing a sentence. If this conclusion was
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incorrect, then upon revocation of community corrections, a sentence could be increased based only

upon facts which existed prior to the date of the original sentencing. 

While such “unused” enhancement factors might exist in a situation where the defendant

entered into a negotiated plea agreement for a minimum sentence to be served on community

corrections, likely, there would be no such “unused” enhancement factors existing in an original

sentence imposed by the trial court after a sentencing hearing. Furthermore, Tennessee Code

Annotated section 40-36-106(e)(4), which permits the increase in a sentence following revocation,

does not specifically limit the use of enhancement factors to those which existed prior to the original

sentencing. 

In this case, commission of the offenses for which Defendant was being sentenced were not

used to show that Defendant had a previous history of unwillingness to comply with the conditions

of a sentence involving release into the community. Since the statute allows for an increase in the

length of the sentence upon revocation of community corrections sentencing, and the statute does

not specifically limit consideration to the enhancement factors that existed at the time of the original

sentence, we conclude that conduct of the Defendant while serving a community corrections

sentence can be used to establish the applicability of enhancement factor (8).

The Defendant does not challenge the sentences of confinement, but does challenge the

enhanced lengths of the sentences. We conclude that the trial court followed the principles of the

Sentencing Reform Act of 1989 and that the lengths of the sentences imposed were appropriate.

In consideration of the foregoing and the record as a whole, we affirm the judgments of the

trial court. 

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE