### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Septembe r 11, 2001 S ession
STATE OF TENNE SSEE v. DALE G ODWIN
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 Decem ber 14, 2001

In 1995, the

Defend ant pled guilty to fou r felony drug cha

rges for which he received three concurrent

eight-year sentences and one conc urrent five-year

sentence, to be served

on Community Correct ions. Subsequently, the trial court revoked the Defenda nt ’s Community Corrections sentences and ordered him to serve twelve ye ars in the Tennessee Department of Correction. The Defendant

now appeals, alleging that the trial court lacked jurisdiction to re-sentence the Def endant and that the tw elv e year s e ntence was improperly imposed. Finding no error, we affirm the judgment o f the tria

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which T HOM AS T. W OODALL and N ORMA M C G EE O GLE , JJ., joined.

Victor L. Ivy and Danny R. Ellis (on appeal), Jackson, Tennessee ; and Kevin McAlpin, Assistant District Public Defender (at trial), Dresden, Te nnessee, for the Appellant, Dale Godwin.

Paul G. Summers , Attorne y Gener al and Re porter; K im R. Helpe

r, Assista nt Attorne

y Gener al; Thomas A. Thomas, District Attorney Ge neral; J ames T. Cannon, Assistant District Attorney Genera l; and Jame s David Ke

ndall, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION

I. FACTS

On February 7, 1995, the Obion County Grand Jury indicted

the Defe ndant for three c ounts of selling .5 grams or

more of c ocaine, a Class B fe lony; one c ount of pos session wi th 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 sentenc ed to eight ye ars for each co nviction, to be ser ved on Comm

unity Corr

ections w ith-2-

Westate Correct ions Netw ork. The

trial cou rt order ed that e ach of the eight-year sentences run
concurr ently withthe others. In addition, each judgment indicates that the Defendant wa s to serve six months in jail. The Defendant also pled guilty to the Class C felony charge of possession of cocaine with inten

t to sell an d recei ved a fiv e-year sentenc e with We state

Corrections Network. The Defend ant was o

rdered to serve si x months in ja

il, and the se

ntence w as to be se

rved con curren tly with the other three sentences. Subseque ntly, a Comm

unity Corrections violation report was filed alleging that on March 8, 1998, the Defendant was arrested and c harged with DUI and

evading arrest. Westate Corrections Network filed a petition r equestin g a crimin al summons b e issued f or the De fendant

. The trial court entered an order on June 16, 1998, issuing a cr imina l summons for the Defendant and setting a heari ng on the Community Corrections violation for June 22, 1998. There is no indicat ion in th e record th at the Defendant was ever served with the summons or that a hearing was held. O n Nov em ber 22, 2000, a supplemental Community Corrections violation report was filed, alleging that
on Novembe

r 16, 2000 , the Def

endant w as found g

uilty in the Obion County General Sessions Court of evading arrest. Again, pursuant to a petition filed by Westate Corrections Network, the trial court ordered t he issuance of a c apias fo r the ar rest of th e Defe ndant. At

the time of

the orde r, th e Defendant was being held in the Obion County Jail, and the capias was ser ved.

On December 8, 2000, the trial court conducted a

hearing and determined that the Defendant had violated

the termsof his Community Corrections sentence. A sentencing hearing was held on January 12, 2001, at which time the trial court sentenced the Defenda nt to twelve year s in th e Tennessee Department

of Correction on each of the three Class B felonies, with the sentences to run concurrently, and six ye ars in the Tenn essee Department of Correction for the Class C felony convicti on, also to

run concurrently

with the ot

her cha rges.
II. ANALYSIS
A. Jurisdiction to Re-sentence

There are four

judgments in this cas e, three for selli ng .5 gra

ms or more o f cocai ne, a Cla ss B felony and one for possession with intent to sell cocaine, a Class C felony. Each judgment is dated February 27, 1995, a

nd indica tes that t he Def endant is sentenced to a “community based alternative,” in addition to

a six-mon

th county j ail sente

nce. Ea ch judgme

nt specif ies “We sta te Corre ctio ns Network” as the community based alternative. Each judgment for a Class B felony contains in the “Special Conditions”

portion of

the judgme

nt the foll owing lan guage: “ 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 ord

er date d March 1 1, 1995, the followi ng langua ge appe ars: In this cause, the Court has sentenced the Defendant to the StatePenitentiary and has found the Defendant unsuitable for state probation. The Court finds the Defendant to be a suitable ca

ndidate f or intens ive super

vision in Com

munity Corr

ections.-3-

IT IS THEREFORE, ORDERED, by the Court that the Defend ant be sente nced to the Communi ty Cor rections Program in the 27 th 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 sentenc e. The State argues in its brief that the trial court “e ffectiv ely suspe

nded ser vice in the state p enitentia ry in fav or 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 stat e penite ntiary. The order of March 11, 1995 appears to be a “fi ll in the bla nk” form order f or Communit

y Correc tions cas es in Obion Co unty

. The judgments are controlling as to the terms and condition s of the De fendant ’s origina

l sentenc es, and the Defendant’s argument that the trial court lacke d jurisdiction to increase the length of the sentenc es afte

r revoki ng the Commu

nity Corrections se

ntencesis without me

rit.

B. Re-sentencing Assuming that a new sentencing hearing is conducted, a trial c ourt generally has the aut h ority to increase the length of a revoked Community Corrections sentence up to the maximum sentence within the appropriate sentence range f or the offense. State v. Sa muels , 44 S.W.3d 489, 493 (Tenn. 2001); see also Tenn . Code Ann . § 40-36- 106(e)( 2). The tr ial cour t in this ca se conducted

a “new” sentencing hearing on January 12, 2001.

The Defend ant argu es that the trial court was p redisposed to imposing the maximum sentence basedon comments it made during the violation hearing on Dec ember 8, 2000. At that time, the following exchan ge occu

rred be tween the trial cou rt 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 t o 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 K

endall : 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 outa lot quicker if he goes to t he Departmen t of Correction, and I’m not so sure that’s the prope

r thing to do. I can increas e his s ent ence 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 h im b efore he enters a plea of guilty, you can do so.

The State argues in its brief that the trial court wa s “merely informi ng defen se counse l of all of the avai lable opt

ions, prior to e

ntry of a guilty plea .” We ag

ree. In our view , the comm

ents 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 ra nge of possible outcomes in this case. We note that the trial judge said that he wou ld “ . . . consider increasing [the-4-

Defend ant’s] sentence.” (Emphasis added). He also stated, “I can increase his sentence of twelve y ears, providing

the evide

nce at the sentencing hea ring justif

ied it .” (Empha sis added). Thi s 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 la ter date. Concerning the propriety of the “new” sentences impos ed, ou r analys is begins w ith wellsettled principles that govern our review of a sentence determination imposed under the Criminal Sentencing Reform Act of 1989. When acriminal defendant challenges the leng th, range, or

manner of service of a sentence, the revie wing court

must conduct a de novo review of the sentence with a presumption that the determinations made by the trial court arecorrect. Tenn. Code Ann. § 40-35- 401(d). This presumption, however, “is conditioned upon the affirmative showing in the record that the trial cou

rt consid ered the sentenc ing principles a

nd all relevant f

acts and circumstances.” State
v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the rec ord fails to show such consideration, th e r ev ie w o f t he se nt en ce is pu re ly de novo
. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its senten cing de terminat ion, the tr ia l court, a t the conclusion of the sentencing hearin g, determines the range of sentenc e and the

n determ ines the s pecific

sentenc e and the

proprie ty of sentenc ing alt

ernatives by

considering (1) the evidence, if a ny, rece ived at the trial and the sentencing hearing, (2) the pres entence report, (3) the p

rinciple s of sente

ncing a nd arg uments as to sentencing alternatives, (4) the nature and char acteristics of the cri minal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating f actors, (6) any statemen ts the defendant wishes to make in the defendant' s behalf about sentencing, and (7) t h e potential for reh abilitatio n or trea tment. Tenn . Code Ann . §§ 40-35 -210(a) , (b), -1 03(5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumptive sentence to be imposed by the trial court fo r a Class B , C, D or E f

elony is the minimum with

in the applica

ble rang e unless t

here ar e enhan cement o

r mitiga ting fa ctors pr esent. Tenn. Code Ann. § 40-35-210(c). If there ar e enhancement or mitigating fa ctors, the court must start at the presumptive sentence, enhance the sente nce as appropriate for the enhanc ement factors, and then reduce the se ntenc e in th e range as appro priate f or the miti gating

factor s. Id. § 40-35-210(e). The weight to be given eac h factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d at 123. However, the sentence must be ade qu at el y supported by the record and comply with the purposes and principles of the 1989 Sentencing Reform Act. State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a sentence, the trial court must make specific finding s of fact on the record supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record shou ld also include any enhancement

or mitiga ting fa ctors ap plied 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 guara ntee the prep arati on of a pr oper re cord for

appella te review. State v. Er

vin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). B ecause the rec ord in this-5-

case indicates that the trial court adequately considered

the enhancement and mitigating factors as well as the underl

yin g fact s, our review is de novo with a pre sumption of correc tness.
If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a

lawful se

ntence a fter ha ving g iven due c onsidera tion and pr

oper we ight to the factors and principles set out under the sentencing law, and tha t 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 res ult." 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 sentenc ing the D efenda nt, the tri al c ourt appl i ed 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), t hat “[t]he [D]efendant has a previous history of unwillingness to co mply

with the conditions of

a sentence involving release in the community

. . . .” Id

. § 40-35-114 (8). Thus, the trial court found that two enhancing fac tors applied in sentencing the Defendant. Additionally , the trial court found that no mitigating factors applied.

We agree with the tr

ial cour t concer ning both of the en hanceme nt facto rs applie d in this case. Th e r ecord does indicate that the Defendant has a previous history of cr

iminal convictions or criminal behavior . After i nitially being se ntenced to Community Corrections, the Defenda nt was convictedfor driving under the influence, public intoxication, and twice for evading arrest. The presentence report indicates a prior conviction for possession of a wea pon by a conv icted felon. Ad di ti on al ly, as the Sta

te points o ut in its bri ef, ther e are tw o juvenile

adjudica tions that th e trial court apparently did not conside r but could have properly

considered as an enhancement factor under Tennessee Code Annotated § 40-35-114(20).

In order for enhancement factor (8) to a pply, the State

must prove

that the d efenda nt “has a previous history of

unwillingness to com

ply with the

condition s of a sen

tence in volving re

lease in the community.” Tenn. Code Ann. § 40-35-114(8) (1997). In State v. A dams , 45 S.W.3d 46 (Tenn. Crim. App. 2000), this Court addressed a case wherein the defe ndant challenged, inter alia , the trial court’s applica

tion of en hanceme nt facto r (8) to h is sentences for offenses that he committed

while on proba tion. Findin g factor

(8) inap plicable , we held

as follow s: [The defendant] argues that the trial court should not have conside red 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 Cou rt noted tha t “the co mmission of

the offe nse for w hich a defendant

is-6-

being sentenced should not make factor (8) appl i cable, . . . 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 pur suant to the pro visions of t he Community

Corrections Act found

in Tennessee Code Annotated section 40-36-106(e)(4). Under Hayes and Adams , if the co mmission of th e offen se s for which Defendant was being resente nced had been co mmitted whi le he wa s on proba tion or some

other fo rm o f release, fact or (8) wo uld clearly not be applicable. Initially, it might be said that factor (8) wo uld li kewise b e inappli cable in a situation identical to this case, where the defendant commits various crimes while being released under the Community Corrections Act. In other w ords, the p roper question is, did the crimes
c ommi tted 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 resolvedby 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 d efendant for a crime, Hayes and Adams state that the commission of the offense f or which th e sentence is being imposed cannot be used to establish factor (8).
However, upon exa

mining Ten

nessee C ode Annot

ate d se ction 40-36-106(e)(4), it may be concluded that a de

fendant ’s “previous histo ry” upon resente ncing af ter rev ocation o f communit y corrections can include conduct by the defendant while serving the community corrections sentence

. Tenness ee Code A

nnotated section 4 0-36-106 (e)(4) states asfollows:

The court shall also possess the power to revo ke the se

ntence i mposed at

any time due to the conduct of the defendant or the termination or modification of the program to which the defendant has been sentence d, and the co urt may res entence the defendant to any appropriate sentencing alternative, including incarc eration, 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 incar ceration. (Emphasis added). Upon revocation of a community corrections sentence, w henever the trial court

opts t o impo se a sentence which exceeds the length of the initial sentence, a sentencing hearing pur suan t 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 sente nce is inc reased , the tria

l court mus t find that

appropr iate enhancement

factors exist. The trial court cannot arbitrarily establish the length of a new sentenc e, and an increase in the sentence can not 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 Statev. Ervin , 939 S.W.2d 581 (Tenn. Crim. App. 1996)).

We conclude that facts which have developed be tween the t ime a defenda nt is initially sentenced to community corrections , and the time that the sentence is subsequently revoked, may be considered in applying enhancement factors and inc reasing a sentence. If this conc lusion was-7-

incorre ct, then upon

revoca tion of co mmunity corrections, a sentence could be increas ed based

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

While such “ unused” e nhancement factors might exist in a situation where the defenda nt entered into a neg otiated p lea agr eement f or a minimu

m sentenc e to be se

rved on com munity
corrections, likely, there would be no such “unused” enhancement factors e xisting in an original sentence imposed by the trial court after a sentencing hearing. Furtherm o re, Tennessee Code Annotated section 40-36-106(e)(4), which permits the increa se 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 sentence d were not used to show tha

t Defend ant 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 se ntence u pon revo cation of

community

corrections sentencing, and the statute does notspecifically limit consideration to the enhancement factors that existed at the time of the original sentence, we conc lude that conduct o f the Def

endant while s erving a community corrections sentence can be used to establish the applicability of enhanc ement factor (8).
The Defend ant do es not chall enge the sentences of confinement, but does challeng e the enhanced lengths of the

sentences. We conclude that the trial court followed the principlesof the Sentencing Reform Act of 1989 and that the leng ths of the sentences imposed were appropriate.

In consideration of the foregoing a nd the record

as a whole, we affirm

the judgments of the trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE