# FILED
December 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1998 SESSION

STATE OF TENNESSEE, ) ) NO. 01C01-9709-CC-00416 Appellee, ) ) Giles County VS. ) ) Honorable Jim T. Hamilton, Judge BOBBY CROOK, ) ) (Revocati on of com munity Appellant. ) corrections) )

FOR THE APPELLANT : Hershell D. Koger 131 N. 1st Street P.O. Box 1148 Pulaski, TN 38478 FOR THE APPELLEE : John Knox Walkup Attorney General and Repor ter and Karen M. Ya cuzzo Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. Michael B

ottoms District Attorney General and Richard H. Dunavant Assistant

District Attorney

General Giles County Courthouse P.O. Box 304 Pulaski, TN 38478-0304

OPINION FILED:

REMANDED FOR RESENTENCING
Joseph M. Tipton, Judge1 The propriety of sentencing the defendant to com munity corrections in view of the nature of the se of fens es is n ot an issue befo re this cour t in this appe al. 2 O P I N I O N
The defendant, Bobby Crook, appeals as of right from the judgment of the trial court resentencing him to consecutive ten-year sentences upon revoking his community corrections s entences. He was orig inally sentenced to concur rent ten-year terms. The defendant contends that the tri al court erroneously imposed the consecutive sentences w ithout first conducting a s entencing hearing and maki ng findings that consecutive sentences were appropriate. The judgment of the trial court revoking the defendant's communi ty corrections sentenc

es is affirmed. However, the consecutive sentences are vacated, and this cause i s remanded for a new sentencing hearing.
The defendant was originally indicted for especially

aggravated kidnapping and aggrav ated rape, Class A felonies. He entered into a plea agree ment with the state and pled g uilty to facilitation of es pecially aggrav ated kidnapping and facilitation of aggrava

ted rape, Class B felonies. A s part of the agreement, the defendant was sentenced as a Rang e I, standard offender, to concurrent ten-year sentences to be served on community corrections. 1 The negotiated plea provi ded that he would b e resente nced to co nsecutive ten-year t erms if h e were late r judged to have violated the terms of his alternative sentences. The tr ial court later determined that he violated the term s of the comm unity corrections sentences and , without conduc ting a sentencing hearing or making findings to support consecutive sentences, i mposed the consecutive sentences pur suant to the parties’ orig inal plea agreement.3 I.

Initial ly, w

e note th at a tri al cour

t has the power,upon rev

ocation of a community corrections s entence, to resentence a defendant to a per iod of incarceration up to the maximum for the offense origi nally committed, with credit for time already served in the community corrections program. T. C. A. § 40-36-106(e)(4). A trial court may impose a sentence greater than the original sentence without off ending the Double Jeopardy Clause of either the United States Constituti on or Tennessee Constitution. State v. Griffith , 787 S.W.2d 340, 34 1-42 (Tenn. 1990).

The purpose of allowing the t rial court to impose a new sentence is that the nature, circumstances and fr equency of the defendant’s vio lations may “warr ant a different type of alternative sentence or incarceration.” State v. Ervin , 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996). The tr ial court may not, how

ever, use the statute for the sole purpose of punishing a defendant for violating the community corrections sentence. Id

.

II.

The Tennessee Criminal Sentencing Reform Act and the Community Corrections Act are in pari materia

. State v. Taylor , 744 S.W.2d 919, 920 (Tenn. Crim. App. 1987). Consequently , when a trial court o pts to resentence a defendant to a sentence more severe than the o riginal, the trial court must conduct a sentencing hearing pursuant to the pri nciples of the Sentencing Reform A ct. State v. Cooper , 977 S.W.2d 130, 132 (Tenn. Crim. App. 1998); Ervin , 939 S.W.2d at 583; State v. Keith F. Batts , No. 01C01-9210-CR-00326, Davidson County, sl ip op. at 5 (Tenn. Crim. App. Feb. 18, 1993).4 It is mandatory for the tri al court to state on the recor d the reasons for imposing a new sentence. State v. Gauldin , 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987). The Sentencing Reform Act pr ovides that the record of the sentencing hearing “shall include specific findings of fact upon which appli cation of the sentencing principles was based.” T. C. A. § 40-35-209(c).

The purpose of the statutory req uirements is to ensure that a proper record is made for appellate r eview. Ervin , 939 S.W.2d at 584. T he fact that this court is required to make a de novo review does not in any way diminish the trial court’s statutory duty to comply with the guidelines and mandates of the Sentencing Ref orm Act. Gauldin , 737 S.W.2d at 798.

III.

We believe the instant case is simil ar to State v. Timothy Lemont Wade , No. 01C01-9303-CR-00092, Davidson County (Tenn. C rim. App. Nov. 24, 1993), and Batts . In each case, the trial c ourt informed the defendant at the sentencing hearing that he would be sentenced to a maximum sentence if his community corrections sentence were ever r

evoked. In each instance, the defendant agreed to community corrections with this understanding. When the com munity corrections sentences in those cases were rev

oked, the respective tri al courts immediately i mposed maximum sentences without making the findings required by the Sentencing Reform Act. Th is court remanded both cases for new sentencing hearings.

In the instant case, the trial court erred in setting a sentence, befo re revocation of the community corrections sentences, that would be aut omatically imposed in the event the community corrections sentences w ere revoked. This is the same situation condemned in Wade and Batts in that the trial court i ncreased the2 This cour t doe s not me an to imp ly that c ons ecu tive se nten ces could not b e im pos ed fo llowin g a se nten cing hear ing. C ons ecu tive se nten ces ma y validly

5 effective sentence solely for the purpose of punishing the defendant for violating the terms of the community corrections sentence. See Ervin , 939 S.W.2d at 583. Here, as there, the practice is improper.

IV.

We are not unmindful of the Sentencing Reform Act’s pro visions dispensing with the s

entencing hearing w

hen the district attorney general and the defendant agree upon a sentence whi ch is accepted by the tri al court. See T. C. A. §§ 40-35-203(b), -205(d). However, we conclude that the agreement in the instant case whereby the defendant agreed to two separate sentences for the same two offenses, one of which was contingent upon future conduct of the defendant, is neither contemplated nor authorized by the Sentencing Reform Act or the Community Corrections Act.

We are also mindful that the state in the orig inal plea negotiations reduced the charges as a part of the plea agreement. The defendant unequivocally agreed at that time to consec utive sent encing in t he event o f a futu re violatio n and now, in effect, seeks to renege on the ag reement. Nevertheless, h aving established that the automatically increased sentences were not authori zed, at this juncture thi s court can only remand for a new sentenc ing hearing. Therefore, as the defendant was not afforded the requisite hearing upon revocation as provided by the Senten cing Reform Act, this case mu st be remanded for such a sente ncing hearing. 2result f rom a violat ion of community cor rections i f based upon proper gr ounds after a new sentencing hearing. 6 _________________________ Joseph M. Tipto n, Judge
CONCUR:

___________________________ Joe G. Riley, Judge

___________________________ James Curwood W itt, Jr., Judge