### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs N ovembe

r 26, 2002
STATE OF TENN ESSEE v. BRADLE Y RYAN WEBB State Appeal from the Circuit Court for Cocke County Nos. 7974-7978; Circuit Court for Jefferson County No. 6916, Ben W. Hooper II, Judge

No. E2002-01375-CCA-R3-CD February 26, 2003

The State app eals the

ruling o f the Cock

e County Circ uit Court modifying the sentenc e of the Appellee, Bradley

Ryan Webb, pursuant

to Rule 35, Tennessee Rules of Criminal Procedure. Under the terms of a

plea ag reemen t, Webb received an effective six-y ear Departm ent of Cor rection (DOC) sentence, which stemmed from six theft convictions in Cocke and Jefferson counties. The p lea agreement

provided th at the six-year DOC sentence would be served concurrently with a federal sentence Webb was s erving . Followi ng a time ly filed Rule 3 5 motion, the trial court modified Webb’s DOC sentences to “time served” and ordered removal of

the state detainer warrant lodge d agains tWebb. The tria

l court fo und that mo dificati on was ne cessar y to effectuate the intent of the plea agreement. The Stat

e argues tha

t the trial court’s ruling was improper because Webb’s senten ces were imposed a s a resul t of an “a greed plea,” a nd any post-sen tencing developm

ents complainedof by Webb were not unforeseen. After review, we conclude that Webb’s sente nce was improper ly modified. Accordingly , the judgment of the tri al court is r everse d, and thiscase is remanded for reinstatement of the judgme nts of conviction as originally entered. Tenn. R. App.P. 3; Judg ment of t he Circui t Court R

eversed; Rem anded.
D AV ID G. H AYES , J., delivered the opinion of the court, in which J ERRY L. S MITH and N O RMA M C G EE O GLE , JJ., joined. William M. Leibrock, Newport, Tennessee, f or the Appellee, Bradley

Ryan Webb.
Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor G eneral ; Kathy D. Aslinger, Assistant Attorney Genera l; Al Schmut

zer, Jr., Di strict Att

orney Genera l; and Rona

ld C. Newcomb, Assistant District Attorney General, for the Appellee, State of Tenne ssee.-2- OPINION
Factua l Background
In May 2000, the Appellee pled guilty

in Cocke Co

unty to two cou

nts of Class Dfelony theft and three counts of Class B felony theft, and he also pled t o one count of Class D fe lony theft, stemming from

an indictment in Jefferson County. The plea a greement provided that the Appellee would receivetwo-y

ear sen tences o n each Cl ass D theft conviction and six-year sentences on each Class B theft conviction, with all sentences to be served concurrently . The plea agreement fur ther provided that

sentenc ing woul d be defe rred to p ermit the

Appellee to be sentenced in federal district court on charges which were pe nding at the time. After federal sent encing was completed, the Appellee would be returned to the state court for sentencing and, as agreed, his state

sentenc es would run concurrently

with his federal sentences. On January 8, 2001, the sentence s were imposed by the trial co urt in C ocke County. On Marc h 9, 2001, the Appellee, pursuant to Rule 35(b),Tennessee Rules of Criminal Procedure, filed a pro se motion requesting that his state sentence be “run coterminus to his sentence of 30 months imposed by the United States District Court for the Eastern District of Tennessee.” The trial court’s orde r granting the Appellee’s Rule 35 motion rec ites the following finding s:
2. The def

enda nt had an effective sentence of 6 y ears, and has accumulated substantial credit towards that sentence. TheCourt relies on the T.O.M.I.S. offender report generated by

the Tenness ee Depa

rtment of Correct ion in find ing that he is well beyond his relea se eligibility date.
3. The Court is aware that the Tennessee Boa r d of Paro les ha s cond ucted forei gn jurisdiction hearings in this matter last y ear and this ye ar, in the absence of the defendant, and has not granted par ole.
4. The Court finds that the defe ndant is in federal custody with a release date of December

23, 2002, and is currently unde r detainer from the State of Tennessee for the sentenc es refe

renced above. T

he activ e detainer has a

dversel y a ffecte d his security level, c ausing h

im to be re

mo ved f rom the camp and placed in a federa l correctional fa ci li ty, and furt her, will prevent his placement in a halfway house by the federa l sy stem.
5. The Court specifically

makes note of the State’s objectio n to any altera tion in the terms of the plea agreement, but finds tha t under the circu

mstance s of this particular matter, it is appropriate to amend hi s state sentences from Cocke and Jefferson County , enumerated above, to run co-terminus with his federa l sentence, an d th e detainer removed. It is, therefor

e, ORD ERED that t

hese sen tences b e modifie d to time served and the balance to be serve d on supervised probation, and that the State take such action as is necessary to withdraw the detainer and execute any additional forms as may

be requi red to am end this ju dgment.1 Rule 35 provide s in relevant part as follows: (b) The trial court may reduc e a sent ence upon app licati on filed wit hin 120 days after the dat e the senten ce is impo sed o r pro batio n is revo ked

. . . . If t he sent ence is modifi ed, the stat e may appeal as otherwise provided by l aw. A modif icat ion can onl y be as t o any sen tence t he court coul d h ave orig inal ly impose d. -3- ANALYSIS Modification of a sentence may be granted under Rule 35(b),Tenne ssee Rules of Criminal Procedure, 1 if the tri al court finds “in the inte r est of justice,” that the sentence must be reduced. State v. Hodges , 815 S.W.2d 151, 154 (Tenn. 1991). However, where a trial court

accept s a guilt

y plea agreement under Rule 11(e)( 1)(C), Tennessee R ules of Criminal Procedure, the trial court should notmodify the ag

reed upon sente

nce abse nt unusual

circumst ances, s uch as un

forese en postsentencing developments. State v . McDona ld , 893 S.W.2d 945, 947 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994). On appeal, the trial court’s disposition of a motion to modify will not be disturbed unless the appellate court finds an abuse of discretion. State v. Irick , 861 S.W.2d 375, 376 (Tenn. Crim. A pp. 1993) ; State v. Co sta , No. 01C01-9511-CR-00376 (Tenn. Crim. App. at Nashville, Dec. 4, 1997).
The Appellee

argue s that gr

anting t he Rule 35 motion was entirely pr oper, as modification was necessary

to reflect the original agreement of the pa rties. Moreover, the Appellee arg ues that, after he was returned to federal custody following state sentencing, the office of the district attorney general placed a state detainer on him which “adver sely affected his secur ity l evel” a

nd result ed in loss of other inma

te privileges. On the other hand, the State arg ues that the plea agreement provides that the Appellee’s state and federal sentenc es are to be served “concurr ently,” not “co- terminus,” and that the Appellee was not guarante ed parole after service of thirty percent of his sentence.
It is undisputed tha t the pl ea agreement executed by the Appellee and his attorney and the plea re commenda

tion by the prosecutor at

sentenc ing is asfollows:
The defendant shall receive a sentenc e of six years, TDOC to run

concurr ently with case no. 6916 on the docket

of the Jefferson County

Circuit Cou

rt and co ncurre

ntly withcases 7974 and 7975 of theCircuit Court of Cocke County. All Jefferson and Cocke sentenc es sh all run concurrently with sente

ncing to be impose d by

the U.S. District Feder al Court of

Greenville, Ten

nessee, and the se

ntencing in this cau se shall be deferred until after the sentencing in Federal Court. Thedefenda nt shall likewise pay as restitution all reward

money paid by

the victim in this cause for the return of the three motorcy cles involved.
The abov e terms r

eprese nt the full agree ment betw een the p arties.-4-

Placing consider

able blame with the prosecutor’s office for lodging the detainer against the Appellee while he w as in fed eral cu stody , the tria

l court g ranted t h e Rule 35 motion. The court concluded

that it wa s the inten

t of the Sta

te and the Appellee that the state and federa l sentences were to be served “co-terminus.” We are una ble to agree with this conclusion. The plea ag reement executed by the Appellee , the trial court’s pronouncement at the guilty plea hearing, and the trial court’s docket entry a

ll reflect that the state and federal

sentences were to be served “c oncurrently.” There is nothing in the record supporting the Appellee’s ar gument that the sentences were to be “coterminus,” which was defined by the Appellee as “when

he did that Federal time he was supposed to get out of jail.” Furthermore, with reg ard to the detaine r, we wou ld note tha

t, under t he I nterstat e Compact on Detainers Act, it was incumbent upon the district attorney g eneral to notify the warden at the federal correctional facility where the Ap pellee w as i ncarcerated as to the disposition of charges in this state. Tenn. Code Ann. § 40-31-101 to - 108. As such, the prosecutor’s action may not be characterized as unforesee n. Because the Appellee

has failed to estab lishany “unfor eseen, post sentencing development[s],” it was an abuse of discretion for the tria l court to modify the ag

reed sentence.

CONCLUSION
Based upon the foregoing, we find that it was a buse of discretion for

the trial court to grant the Appellee’s Rule 35 motion for modification of sentence. Accordingly , the judgment of the trial court is rever sed, and

this cas e is remanded for reinstatement of the judgme nts of conviction as originally e

ntered.

___________________________________ DAVID G. HAYES, JUDGE