IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 11, 2012

STATE OF TENNESSEE v. CLAY ROBERTSON

Appeal from the Circuit Court for Lincoln County

No. S1000144 Robert Crigler, Judge

No. M2012-00293-CCA-R3-CD - Filed September 25, 2012

Much aggrieved by the Lincoln County Circuit Court’s sentencing decision following his

plea to a community corrections violation warrant, the defendant, Clay Robertson, appeals

the trial court’s imposition of an effective sentence of seven years’ incarceration for his

guilty-pleaded convictions of theft of property valued at more than $1,000 but less than

$10,000 and facilitation of aggravated robbery. Discerning no error, we affirm the judgments

of the trial court.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the Court, in which JERRY L. SMITH

and ALAN E. GLENN, JJ., joined.

Donna Orr Hargrove, District Public Defender; and William J. Harold, Assistant Public

Defender, for the appellant, Clay Robertson.

Robert E. Cooper,Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; Charles Crawford, District Attorney General; and Hollyn Eubanks, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

On January 18, 2011, the Lincoln County grand jury charged the defendant

with two alternative counts of theft of property valued at more than $1,000 but less than

$10,000 and one count of aggravated robbery for offenses committed on July 30, 2010. On

March 22, 2011, the defendant pleaded guilty to one count of theft of property and one count

of facilitation of aggravated robbery. Pursuant to the plea agreement, the trial court

sentenced the defendant to consecutive sentences of two years and three years, respectively,

to be served on community corrections supervision. On September 2, 2011, a violation of
community corrections warrant issued alleging that the defendant had been arrested for

domestic violence. On December 9, 2011, the defendant pleaded guilty to the violation

warrant and submitted to resentencing by the trial court.

At the January 17, 2012 resentencing hearing, the trial court determined that

the defendant had committed the original offenses while on probation for a 2010 assault

conviction and that his history showed an inability to successfully complete probation. The

court ruled that these factors justified a one-year increase to each sentence to be served in the

custody of the Department of Correction. Accordingly, the trial court entered amended

judgments reflecting sentences of three years for the theft conviction and four years for the

facilitation of aggravated robbery conviction to be served consecutively for a total effective

sentence of seven years’ incarceration.

On appeal, the defendant challenges the trial court’sresentencing decision. He

argues that the seven-year incarcerative sentence is too harsh when considered in light of his

successful payment of all costs, fines, and restitution pertinent to his convictions. The State

argues that the sentencing decision was appropriate and should be affirmed.

If the evidence is sufficient to show a violation of the terms of supervision in

a community corrections placement, as when a defendant pleads guilty to the revocation

warrant, the trial court may, within its discretionary authority, revoke the community

corrections sentence and require the defendant to serve his sentence in confinement “less any

time actually served in any community-based alternative to incarceration.” T.C.A. § 40-36-

106(e)(4). Furthermore, when the trial court does not alter “the length, terms or conditions

of the sentence imposed,” Id. § 40-36-106(e)(2), the court is not required to hold a sentencing

hearing. As another option, however, the trial “court may resentence the defendant to any

appropriate sentencing alternative, including incarceration . . . . [and] resentencing shall be

conducted in compliance with § 40-35-210.” Id. § 40-36-106(e)(4); see, e.g., State v.

Samuels, 44 S.W.3d 489, 493 (Tenn. 2001) (observing that the trial court must conduct a

sentencing hearing before imposing “a new sentence” following a community corrections

revocation).

When considering challenges to the length and manner of service of a sentence

this court conducts a de novo review with a presumption that the determinations of the trial

court are correct. T.C.A. § 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).

The appealing party, in this case the defendant, bears the burden of establishing impropriety

in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n Comments; see also Ashby, 823

S.W.2d at 169. If our review of the sentence establishes that the trial court gave “due

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consideration” to the appropriate “factors and principles which are relevant to sentencing

under the Act, and that the trial court’s findings of fact . . . are adequately supported in the

record, then we may not disturb the sentence even if we would have preferred a different

result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Appellate review

of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

In making its sentencing decision, the trial court was required to consider:

(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

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114;

(6) Any statistical information provided by the administrative

office of the courts as to sentencing practices for similar

offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the

defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant . . . in determining the sentence

alternative or length of a term to be imposed.” Id. § 40-35-103(5).

In this case, the trial court imposed new sentences reflecting a one-year

increase in both sentences to be served in confinement. The trial court based its sentencing

determination upon the defendant’s commission of the conviction offenses while on

probation and past failed attempts at probationary sentences. In our view, the record supports

the trial court’s imposition of new incarcerative sentences in this case.

Accordingly, we affirm the judgments of the trial court.

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_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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