# FILED

September 22, 1998
Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CR IMINAL APPEALS OF TENNESSE E

AT KNOXVILLE JULY 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9708-CR-00366

Appellee, * KNOX COUNTY VS. * Hon. Mary Beth Leibowitz,Judge JAMES SMITH, a.k.a. * (Revocation of Community Corrections) JAMES E. MAXWELL, *

Appellant. *

For Appellant : For Appellee : Mark E. Stephens John Knox Walkup District Public Def

ender Attorney General & Reporter 6th Judicial Distric

t Georgia Blythe Felner Paula R. Voss Assistant Attorney General Julia Auer Criminal Justice D ivision Assistant Public Defenders 450 James Robertson Parkwa y 1209 Euclid Avenue Nashville, TN 37243-0493 Knoxville, TN 37921 Randall Nichols District Attorney Gener al and Leon Franks Assistant District A

ttorney General 400 Main Avenue Knoxville, TN 37902

OPINION FILED:_____________________

AFFIRMED AS MODIFIED
GARY R. WADE, PRESIDIN G JUDGE2 OPINION The defendant, James Smith, a. k.a. James E. Maxwell,appeals the trial court's revocat ion of his community cor rections sentence. The foll owing issues have been presented for review:

(I) whether the trial court s hould have held a hearing before the revocation of his suspended sentence and imposition of greater sentences; and (II) whether the judgment forms and orders reflect illegal sentences. The judgment of revocation i s affirmed; the sentences ar e modified as provided herein.
This appeal involves senten cing for three separate conv ictions. On June 28, 1991, in case number 35815,the defendant was given a Range I, two-year sentence to be served on probati on for the attempted sale of a s chedule II controlled substance, a Class D felon y. On September 2, 1992, probati on on the two-year term was revoked and the defendant was ordered to serve the full sente nce in custody, less credit for

service of 105 days in j ail. On December 22, 1992, the Department of Correcti on placed the defendant on determina te probation pursuant to Tenn. Code Ann. § 40-35-501.

While out on determinate pr obation for the two-year se ntence, the defendant incurred additional charges. On December 8, 1993 , in case number 47804, he received a Range I, eig ht-year sentence in TDOC for possession of cocaine with intent to sel l, a Class B felony; the s entence was suspended and he was placed on community corrections for eleven years. On the same date, in case number 49817, he received a Ran ge I, three-year sentence for sale of less than one-half gram cocaine, a C lass C felony; the sentence was suspended and he was1 T he judgments of conviction entered in the defendant's latter two cases reflect conflicting sentences. Read literally, the judgments reflect that the trial court imposed sentences to the Department of Correction, suspende d those sentences, and placed the defendant in the comm unity corrections progr am for a term of years. This looks as if the tr

ial court gave the defendant pro bation and made supervision under the community corr ections program a conditi on of that probation. See Tenn. Code Ann. § 40-36-106(f). If that were so, the trial c ourt would not have retained the power to change the length of the sentences as originally imposed. However, the record on appeal , including the judgments of conviction, reflect that the trial court intended to impose community corr ections sentences pursuant to Tenn. Code Ann. § 40-36-106(e)( 1), instead of making the pr ogram a condition of probation pursuant to Tenn. Code Ann. § 40-36-106(f). With a community corrections sentence, though, the trial court does not al so impose a term of year s for service in the penitentiary or local jail that is then suspended. Any sentence so imposed, including its l ength, is essentially a nul lity and recording it i n the judgment of conviction is superfl uous. The length of time the de fendant serves in the community corrections

program is the only sent ence to be imposed. 3 placed on community corr ections for eleven years. The three year sentence was to be served consecutively to the eight-year sentence. 1

Revocation warrants wer e eventually filed for al l offenses. On July 21, 1995, the trial court held a brief hearing; no proof was presented. Apparently, the defendant conceded that the terms of the alternative sentences had been violated. The state and the defense appear to have agree d that the trial judge should revoke the alternative sentences and then increase the term, as l ong as the defendant was not ordered to serve any tim e in custody. The trial court asked the defendant, "You ... understand I intend to incr ease your sentence signific antly now; so that, if you do fail, you are going to spend s ome time in the penitentiar y." The defendant responded, "A whole lot, yes." The trial court then ruled from the bench as fo llows:

Here is what I have got. I have an eight-year sentence and a B felony. So that c an be increased to up to twelve years as a range I offender and a three-year sentence in 49817, which is a C felony and increase that to six years, for a total

sentence of eighteen years. Now, I do not know how to deal with this pending determinate probation, because that was not figured in when we originally put Mr. Maxwell on C.A.P.P. in these cases. ... I am going to put him on C.A.P.P. for two4 years in this case, also, and run that C.A.P.P. time concurrent.... [H]is effective C.A.P.P. sentences is eighteen years. The court also entered a wr itten order on that date: [I]n case no. 35815, the defendant's Stat e Probation ... is ... revoked; and the defendant plac ed on CAPP for eighteen (18) years to expi re July 21, 2013. In case no. 47804, the defendant's CAPP revoked, sente nce increased from eight (8) years to twelve (12) years, however, the defendant is place d back on CAPP for eighteen (18) years to expi re July 21, 2013. In case no. 49817, the defendant's CAPP revoked, sente nce increased from three (3) years to six (6) years, however, the defendant is placed back on C APP for eighteen (18) years to expire July 21, 2013.
Sometime later, on January 6, 1997, another revocation war rant was filed. At the revocation h earing, Tamela Wheeler, who supervised the defendant on C.A.P.P., testified that the defendant had ab sconded and that she had no contact from May 1996 until Januar y 1997.

The trial court concluded that the defendant had violated the t erms of his community correc

tions sentence. Rather than r uling at the conclusion of the hearing, however, the trial judge opted to review the tr anscript of the 1995 hearing to make certain that the defendant had understood his sentence was to be increased to an effective ter m of eighteen years. At a second hearing one month later, defense counsel argued that at the 1995 h earing, where the sentences were increased, the defendant was not advised of his right to i nsist on a sentencing hearing and the right to appeal. The trial judge ruled as follows:

It is clear ... to this

Court that Mr. Maxwel l violated the terms of his C.A.P.P. .. . There is no question in m y mind that based upon this transcri pt and my memory ... that Mr. Maxwell understood that I intended to revoke him

. But he took the eighteen year senten ce because he wanted to get out. ... It may not be equitable, but this isn't a court of equity. And it may not be fair, and perhaps we have not held the heari ngs that the law5 requires of us. ... How ever, I think that it's pr

etty clear that there was a hearing, that there was an agreement, that Mr. Maxwell understood the agreement, that Mr. Maxwell understood because h e had already been revoked and sent to the penitenti ary and put out on determinate probation in one of the cases, what he had to do and he didn't do it. ... So I don't think I really have a choice but to revoke Mr. Maxwell. And I don't think I have a choice right now but t o revoke him at the eighteen year sentence that he agreed to.
On that same day, the trial court entered three separate orders revoking community cor rections for each offense and ordering judgment to be executed. The order on the two-year sentence provides as follows:

[T]he defendant's CAPP is ...revoked and the original judgment of this Court on June 28, 1991 is put into full force and effect. Defendant ... is to receive ... a combined total credit of ei ght hundred and eight (808) days, sentence to begin January 1, 1995. The order on the twelve-ye ar sentence, which origi nally was an eight-year sentence, provides as follows:

CAPP is hereby revoked and the original judgment of this Court on December 8, 1993 i s put into full force and effect, along with the revoc ation of July 21, 1995 increasing the defendant's sent ence from eight (8) to twelve (12) years. The order on the six-year sentence, which was orig inally a three-year ter m, provides as follows: CAPP is hereby revoked and the original judgment of this

court on December 8, 1993 is put into full force and effect, along with the revoc ation of July 21, 1995, increasing the defendant's sentence from three (3) to six (6) years.
Trial courts have authority to revoke a community corrections sentence based upon the conduct of the defendant. Tenn. Code Ann. § 40-36-106(e)( 3). A trial judge's decision to revoke a defendant's releas e on community correcti ons6 should not be disturbed unless there is an abuse of discretion. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). In order to find an abuse of disc retion, it must appear that the record contains "no su bstantial evidence to support the conclusion of the trial judge that a violati on of the conditions ... occur red." Id.
The same principles appl icable to a probation revoca tion are relevant to the revocation of communi ty corrections. Id. at 83. The trial judge is not required to find that a violation of the terms of probation has occurred beyond a reasonable doubt. Stamps v. State , 614 S.W.2d 71, 73 (Tenn. Cr im. App. 1980). Rather, the existence of a violation of probation need only be supported by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d).

The defendant concedes he violated t he terms of his commu nit y correcti ons sentence
an d d oe s n ot c on tes t the rev oc atio n. In ste ad , he co m pla ins tha t the tria l co urt err ed by inc rea sin g h is sentence without a heari ng and that the order s refl ect il legal sent ences.

I On July 21, 1995, the t rial court i ncreased the eight -year sentence t o twelve years and the thre e-y ea r se nte nc e to six ye ars . Th e tria l co urt d id s o w itho ut h av ing rec eiv ed an y p roo f an d witho ut m akin g refe renc e to a ny o f the s ente ncin g prin ciples of the 198 9 A ct. Th e de fend ant a rgue s that because the t rial judge fai led to conduct an appropriat e hearing befor e increasi ng the sentences, the ca se sh ou ld b e re m an de d "fo r fur the r pr oc ee din gs w hic h c on form w ith th e [d efe nd an t's] rig hts to due proc ess of law ."

Th e tim e fo r ap pe alin g th e o rde r en tere d o n J uly 21 , 19 95 , ha s lo ng sin ce pa ss ed

. Th e d efe nd an t ha d th irty da ys to file a n otic e o f ap pe al. T en n. R . A pp . P. 4( a). Th e tim ely filing m ay be w aived "in the inte

rest of jus tice." Id. Und

er th e c ircu m sta nc es , ho w ev er, w e a re n ot in clin ed to d o7 so . Th e d efe nd an t ag ree d to the inc rea se in s en ten ce . At the he arin g, d efe ns e c ou ns el s tate d to the trial c ou rt: I thin

k th at y ou w ere go ing to a dd ad ditio na l tim e to his se nte nc e. Th at w as o ne o f the c ond itions o f relea sing him , and that is w hat M r. M ax w ell w an ts to do . So I am go ing to a sk tha t yo u d o th at. C lea rly, th e d efe nd an t ag ree d to the ad ditio na l tim e, in ex ch an ge for n ot b ein g p lac ed in c us tod y a fter the rev oc atio n. It is on ly b ec au se he no w ha s to ac tua lly s erv e th e a gre ed up on se nte nc e th at h e co m pla ins

.

W he n a co m m un ity c orr ec tion s s en ten ce is re vo ke d, th e tria l co urt m ay inc rea se the
se nte nc e. T en n. C od e A nn. § 4 0-3 6-1 06 (e)(4) ; Sta te v . Griffith , 787 S.W.2d 340 (Tenn. 1990) . The inc rea se s fr om eig ht to tw elv e y ea rs a nd fro m thr ee to s ix y ea rs a re b oth w ithin the sta tuto rily pe rm iss ible ran ge . G en era lly, b efo re t he tria l co urt inc rea se s th e s en ten ce , a s en ten cin g h ea ring sh ou ld b e h eld

. St ate v. E rvin , 93 9 S .W .2d 58 1, 5 83 (T en n. C rim . A pp . 19 96 ). N on eth ele ss , it is apparent the sent ences were the product of negoti ati ons. There are no circumstances here which would warrant the revi ew of a judgment which becam e final three years ago.

II Th e d efe nd an t ne xt c om pla ins tha t he is e ithe r be ing for ce d to se rve an illeg al
se nte nc e o r th at th e w ritte n o rde rs c on tain cle rica l er ror s. In ou r vie w , the w ritte n o rde rs c on tain ed in the rec ord do co nta in e rro rs w hic h s ho uld be co rre cte d.

Th e d efe nd an t's firs t co m pla int c on ce rns the tw o-y ea r se nte nc e h e re ce ive d in 19 91

. He com plains th at "now his se ntenc e ap pea rs to be eighte en y ears in the s tate pe nitentiary." T

he
w ritten ord er e nte red on Ju ly 2 1, 1 99 5, d oe s p rov ide tha t "the de fen da nt is pla ce d ... o n C AP P fo r eig hte en (18 ) ye ars ...." T he w ritte n o rde r en ter ed on M arc h 2 0, 1 99 7, h ow ev er, pro vid es "th e o rigin al jud gm en t of th is C ou rt on Ju ne 28 , 19 91 is p ut in to fu ll forc e a nd effe ct." A lso , the tran sc ript o f the he arin g h eld in 1 99 5 p rov ide s th at h e w as to s erv e tw o y ea rs o n C .A.P .P. c on curre nt w ith h is o the r8 sen tenc es. T he s tate a gree s "tha t the d efen dan t's two (2) ye ar se nten ce in cas e nu m ber 3 581 5 w as not increa sed ."

Th e tr ial c ou rt is w itho ut a uth orit y to ord er a n e igh tee n-y ea r co m m un ity c orr ec tion s sen tenc e for a Ra nge I offend er co nvicte d of a Cla ss D felony . Ten n. C ode An n. § 4 0-36 -106 (e)(2) ; Te nn. C od e A nn. § 4 0-3 5-1 12 . W he n im po sin g a co m m un ity c orr ec tion s s en ten ce , "th e c ou rt s ha ll po ss es s th e p ow er t o s et th e d ura tion of th e s en ten ce ... a t an y p erio d o f tim e u p to the m ax im um sentence wit hin t he appropri ate sent ence range ." T en n. C od e A nn. § 4 0-3 6-1 06 (e) (2) (em ph as is add ed). T hus , the o rder e ntere d on July 21, 1 995

, is m odified to reflec t a co ncu rrent tw o-ye ar term on C .A.P .P. for c as e n um be r 35 81 5. T he ord er e nte red on M arc h 2 0, 1 99 7, is als o m od ified to re flec t a concurrent two-year t erm on C.A.P.P. f or case number 35815.

Th e de fend ant a lso co m plains that the judg m ent fo rm s in c ase s 47 804 and 498 17 a re erroneous. He points out that t he origi nal judgment for ms provided for sentences of ei ght years and three years, to be served consecuti vely. Yet the ori ginal j udgme nt for ms also provide for an el evenye ar te rm on C .A.P .P. f or e ac h s en ten ce . H e c laim s th e ju dg m en t form s "a pp ea r[] to req uire him to
se rve 22 ye ars in th e C AP P p rog ram " a nd tha t this err or w as ca rrie d o ve r to the ord ers en ter ed on Ju ly 21, 1995 and M

arch 20, 1997. The stat e agrees that t he writt en orders should be modifi ed. Because the trial c ou rt is w itho ut a uth ority to o rde r an eig hte en -ye ar c om m un ity c orr ec tion s s en ten ce for e ithe r of the Range I Class B or C feloni es, we agree the orders should be modifi ed to refl ect a sentence of tw elv e y ea rs in ca se nu m be r 47 80 4 a nd six ye ars in c as e n um be r 49 81 7. See Tenn. Code Ann. § 40- 36-106(e)(2) . Thus, t he orders are modifi ed to refl ect that the six- year term is t o be served
con sec utively to the twe lve-ye ar term
.

Ac co rdin gly , the jud gm en t of t he tria l co urt is a ffirm ed . T he se nte nc es are m od ified as pro vid ed in th is o pin ion

. See Tenn. R. Crim. P. 36.9 __________________________________ Gary R. Wade, Presiding Judge CONCUR:

______________________________ Joseph M. Tipton, Judge

_______________________________ David H. Welles, Judge