### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE February 7, 2

001 Session
STATE OF TENNESSEE v. EDWARD LORENZO SAMUELS
Appeal by Perm

ission from the Cour

t of Criminal Appeal

s Criminal Court for Davidson County No. IF-8702 Cheryl A. Blackburn, Judge

No. M1999-01821-SC-R11-CD - Filed May 4, 2001

After revoking the defendant’s community corrections sentence , the trial court increased the length of the defendan

t’s sentence fr

om six to eight y

ears a nd ordere d that the sentence be served consecutively

to a sentence in an unrelated case. Although the Court of Criminal Appeals affirmed the trial court ’ s judgment, we granted the defendant’s application for permission to appeal and remanded the case to the Court of Criminal Appeals for consideration of our decision in State v. Taylor , 992 S.W.2d 941 (Tenn. 1999). The Court of Criminal Appeals again affirmed the tria l court’s judgment. After

considering the

record, we con

clude that upon re

voking the commun

ity corrections sentence, the trial court held a proper sentencing hea r ing and did not er

r either in increasing the length of the defendant’s sen

tence or in order

ing that th

e sentence be served consecutively

. We therefore a

ffirm the judgme

nt of the Court of Cr

iminal Appeals. Tenn. R. App. P. 11 App eal by Permiss

ion; Judgment of the

Court of Criminal A

ppeals Affirmed

E. R ILEY A NDERSON , C.J., delivered the opini on of the court, in which F RANK F. D ROWOTA , III, A DOLPHPO A. B IRCH , J R

. J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined. Jeffrey A. DeVasher, Assistant Public Defender; and R alph W. Newman, Assistant Public Defender, Nashville, Tenne

ssee, for the app

ellant, Edward L

orenzo Samuels.

Paul G. Summers, Attorne y General & Reporter; Mich

ael E. Moore, Solic

itor General;

Elizabeth T. Ryan, Assis tant A ttorn ey Gener al; Vi ctor S . Joh nson, III, District Attorney General; and Sharon L. Brox, Assistant District Attorney General, for the appellee, State of Tennessee

.

OPINION

In December of

1996, the defenda

nt, Edward L.

Samuels, pled gui

lty to theft of property over $1,000, a class D felony

, and was sentenc

ed as a Range I

I multiple offe

nder to serve six (6

) years in1 The applicab le sentencing ra nge was four to eight years. See Tenn. Code Ann. § 40 -3 5-

112(b)(4) (1997).
-2- the Davidson County Workhouse. 1 T he sentenc e was to run concurrently with a five (5)-y ear sentence the defendant was already serving for an unrelated cocaine offense.

In July of 1997, the defendant filed a petition to suspend his sentence. The trial court conducted

a hearing at which the defendant testified that he had served a year in custody and had received treatment for bot

h substance abuse

and anger mana

gement. The defendant testified that he had been granted a suspended sentence and community c orrections for the cocaine offense and that he had arranged

for housing and e

mployment in

the event he also rec

eived a suspende

d sentence in the present case. The trial court granted the defend ant’s pe tition and placed the defendant on community

corrections with the conditions that he serve thirty additional days in custody and reside in a halfway house facility f or one year upon

his release. The defendant was later released and began serving the community corrections sentence.

In January of 1998, a warrant was issued charging the defendant

with violating the terms of his community corrections sentence. The trial court held a hearing at which the defendant testified that upon his release from

cust ody he had been unable to pay for housing, became depressed, and resumedhis use of drugs. The trial court revoked the community corr ection s sentence and determinedthat the defendant should be resentenced to eight years instea d of the original six-year sentence.
The trial court decided to increase the leng th of the sentence after finding several enhancement

factors and no mitigating factors. The trial court found specific facts supporting three enhancement

factors – previous history of criminal convictions and behavior; un willing ness to comply wit h conditions of a sentence involving release; and commission of a felony while on probation. See

Tenn. Code Ann. § 40-35-114(1), (8), and (13)(C) (1997 & Supp. 2000). The trial court also ordered the s entence to run consecutively to the defendant’s sentence for the coc aine offense, after finding that the defendant was a

professional cr

iminal who knowing

ly devoted himself to criminal acts as a major source of livelihood and that the defendant was an offender

whose record of criminal activity was extensive. See id. § 40-35-115(b)(1) and (2) (1997).

After the Court of Criminal Appeals affirmed the judgment of the trial court, the defendant sought permission to appeal on the grounds that the trial court erred by increasing the

length of his sentence and by ordering the sentence to be se

rved consecutiv

ely with his sentence in an unrelated
case
. We remanded

the case to the Court of Criminal Appeals for consideration of the defendant’s arguments

under our decision in State v. Tay lo r , 992 S.W.2d 941 (Tenn. 1999), in which we

held that the trial court lacked the authority to impose consecutive sentencing afte r r e voking probation where the defendant ha

d served the sente

nce in the Depar

tment of Correctio

n. Afte r the Court of C riminal Appeals affirme d the trial court’ s judgment for a s econd time, the de

fendant once ag

ain sought permission

to appeal. We gr

anted review to c

onsider these issu

es.-3- ANALYSIS
Standard of Review

We begin our analysis with the familiar principles that govern our re view o f a sentencing determination imposed under the C riminal Sentencing

Reform Act o

f 19 89. When reviewing the length, range, or manner

of service of a s

entence imposed b

y the trial c

ourt, the appellate co

urt must conduct a de novo review on the

record and

presume that the determinations made by the sentencing court are correct. See Tenn. Code Ann. § 40-35-401(d) (1997).

To facilitate appellate review, the trial court “‘must place on the record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement

factors have be

en evaluate

d a nd balanced in determining the sentence.’” State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997) (quoting State v. Jones , 883 S.W.2d 597, 601 (Tenn. 1994)). Where it appears that the trial court has failed to consider or comply with the statutory provisions governing sent encing, appellate review is de novo on the record without a presumption of correctness. State v. Winfield , 23 S.W.3d 279, 283 (Tenn. 2000).

Community Cor

rections

The Tennessee Communi ty Co rrections Act was enacted in 1985. One of the purposes of the act was to

“[e]stablish a polic

y within the st

ate to punish selected, nonviolent felony offenders in front -end community

based alternati

ves to incarcer

ation, thereby

reserving sec

ure confineme

n t facilities for violent felon

y offende rs.” Tenn. Code A

nn. § 40-36-103(a

) (1997); see State v. Griffith , 787 S.W.2d 340, 341 (Tenn. 1990).

Under the Community Co

rrections Act, “

the court is author

ized to sentence a

n eligible defendant as defined

in this section to any appropriate community-based alter native to incarceration provided in accordance with the terms of this chapter, and under s uch additional terms and conditions as the court may prescribe, in lieu of incarc

eration in a state

penal institution or

local jail
or workhouse.” Tenn. Code Ann. § 40-36-106(e)(1) (1997 & Supp. 2000). The act further provide

s:
In sentencing an eligible de fendan t to any community-based alternative to incarceration, the court shall possess the power to set the duration of the sentence for the offense committed at any period of time up to the maximum sentence within the appropriate sentence range, and shall retain the authority to alter or amend at any time the length, terms or conditions of the sentence imposed

.

Id. § 40-36-106(e)(2) (1997 & Supp. 2000) (emphasis added).-4-

With these statutory

provisions and the a

ppropriate

standard of revi

ew in mind, we turn to the specific issues raised by the defendant in this case.

Resentencing Fo

llowing Revocation of C ommunity Corr

ections

The defendant argues that after revoking the community corrections sentence the trial court arbitrarily and erroneously

increased the le

ngth of his sentence from six to eight years and ordered the sentence to be se

rved consecutiv

ely to his sen

tence in an unre

lated case . Th e defendant’s argume nt is largely

based on the follow

ing comments made

by the trial c

ourt when it orig

inally granted the community correction sentence:

One of the things holdi

ng over yo

ur head is I c

ould almost guarantee you an eight year sentence consecutive, if y ou were to violate this; do you understand what t

hat m eans, b ecause you’ve got a record that would justify it, if w

e had a sentenci

ng hearing. N

o questi on abou t it.

. . . . I wi ll tell you that I

will remember this

. . . [and] that if y

ou violate this, we will have a

little se ntencing hear

ing, and yo

u are probably going to get eight years conse cutive.

The State responds that the trial court properly held a sen ten cing hearing after revoking the community co

rrections sente

nce and that the se

ntence was suppo

rted by the t

rial court’s find

ings. We begin our review by observing that a trial court has the a uthority, upon revocation of a community

co r rections sentence, to resentence a defendant to a period of incarcer ation up to the maximum for the offense. See Statev. Griffith , 787 S.W.2d at 341. The applicable statu

te provides:

The court shall . . . possess the power to revoke the sentence imposed at any time due

to the conduct of the defendant or the termination or modifi cat ion of the program to which the defendant has been sentenced, and the court m ay resentence the defendant to any appropriate

sentencing al ternative, including incarceration, for any period of time up to the maximum sentence provid ed for the offen

se committed, less any time actually served in any community-based alternative to incarceration.2 The new sentence must be in the same sentencing range as the o riginal sentence , however, a nd not a

greater sente ncing range

. State v. Patty , 922 S.W.2d 102 , 104 (Tenn. 1995).

3 We also note that, contrary t o the defendant’s position, t here is no statutory provisi on limiting consecutive sentencing t o related offenses or offenses stemming f rom the same pro ceeding. See , e.g. , State v. Moore , 942 S.W.2d 5 70, 572 (Tenn. Crim. App. 1996 ).
-5- Tenn. Code Ann. § 40

-36-106(e)(4)

(1997 & Supp. 2000) ; see also id. § 40-36-106(e)(2) (1997 & Supp. 2000) (In imposing a community corrections sentenc e, the trial court “shal

l retain the authority to alter or amend at any time the length, terms or conditions of the sentence imposed.”)

. In resentenci ng a defendant, a trial court may impose a sentence of incarceration g reater than the sentence originally imposed without violating the double jeopa rdy provisions of the United States
or Tennessee Constitutions. See State v. Griffith , 787 S.W.2d at 342. 2 Before imposing a new sentence, however, the trial court must conduct a sentencing hearing in accordance with the principles of the Criminal Sen tencing R eform Act, and an appellate court must review the new sentence in accordance with the stand ard of review discussed above. See , e.g. , State v. Crook , 2 S.W.3d 238, 240 (Tenn. Crim. App. 1998).

In this case, the re

cord reveals tha

t the tr ia l court held a sentencing hearing before resentencing the defendant. The trial court found that the defendant had been sentenced as a Range II offender and th

at the applicable

range of punish

ment for the class

D felony was four to eight years. The trial court in

creased the len

gth of the senten

ce from six to eight years after finding three enhancement

factors were supported by the factual recor d. The enhancement factors were (1) the defendant ha d a pre vious history of criminal convictions and behavior; (2) the defendant had a hi story of unwillingness to comply with conditions of a sentence involving release; and (3) the defe ndant c ommitted a felony offense while on probation. See Tenn. Code Ann. § 40-35-114(1), (8), and (13)(C) (1997 & Supp. 2000). The tri al court ga ve “great weight” to these enhancement factors and found no evide nce of mitigating

factors. Moreov

er, in in cre asing the length of the sentence, the trial court stated that it had considered

the principles of sentencing, the arguments of counsel, and the characteristics of the offense.

With regard to consecutive sentencing, the trial court ordered t he sen tence to run consecutively

to the defendant’s prior sentence after finding that the defendant was a professional criminal who knowingly devoted himself to criminal acts as a major source of

livelihood and that t he defendant was an offender whose record of criminal activity was extensive. See id. § 40-35

- 115(b)(1) and (2) (1997). T he trial court expr

essly found that “the ag

gregate term reasonably relates to the severity of the

offenses, and is necessary to protect the public from further se rious conduct.” 3

In our view, the findings of the trial court suppo rt its decision regarding the length of the sentence and consecutive sentencing. In particular, we note that the presentence report

reflects the defendant’s prior convi ctions for selling nar cotics, agg ravated bur glar y, numerous burgla ry offense s, numerous theft offenses, grand larceny, drug possession, assault, criminal trespassing, and criminal impersonation, among others. Moreover, the trial court’s findings refute any inference that

the trial4 We later found p lain error in that the defendan t pled guilty to a burglary of fense for whi

ch he had not been indict

ed and we modif

ied the j udgment t

o reflec t convic tion for two burg lary offenses and three misde meanor th eft conviction s. State v.

Taylor , 922 S.W.2d at 943- 44.
-6- court’s decision was pre

determined and a

rbitrary b ased on its

comments when originally granting the community corrections sentence. The record indicates that the trial court strong

ly advised the defendant of the possible consequences of violating the community corrections sentence. When the community

corrections sentence was later revok ed, the tria

l court did not simply impose a predetermined

sentence; instead, it

conducted a prop

er sentencing

hearing and ma

de the appropria

te findings to support its ruling. Accordingly, we find no error.

Authority of the Trial Court

The defendant, relying on our decision in State v. Taylor , 992 S.W.2d 941 (Tenn. 1999), argues that the trial cour

t lacked the autho

rity to revo

ke the community

corrections sentence and to require the sentence to r

un consecutively

to his sentence in an unrelated case. The State maintains that the trial court’s

determination wa

s supported by

th e reco rd and that Taylor is distinguishable from this case. We agree with the State’s position. Our analys

is necessarily

begins with the extensive and tortuous procedural history in State
v. Taylor . The defendant e ntered guilty

pleas in two cases to a total of three burglary offenses a nd two misdemeanor

theft offenses 4 and received an effective sentence of two years to be served in a community

corrections program. State v. Taylor , 922 S.W.2d at 942. When the defendant was later indicted for two counts of felony theft in a third case, the trial court revoked t he community corrections sentence and ordered the defendant to serve four years in the Department of Correction for the burglary

and misdemeanor t

heft convictions i

n the first two cases. Id. at 942-43. When the de fendant pled guilty

to the two counts of

felony thef

t, the trial court i

mposed a sente

nce of tw o years probation, to be served consecutively to the sentences in the first two cases. Id. at 943.

While incarcerated for the burglary and misdemeanor theft

convictions in the first two cases and serving the four-year sentence, the de fendant completed a “S pe cial Alternative Incarceration Unit Program,” also known as “boot camp,” and was placed on supervised probation. Id. When the defendant later failed to pay restitution and fees, the trial court revoked probationin all three cases and ordered the defendant to ser ve six years in community corrections. Id. When the defendant was later charge d wi th new offenses, the trial court revoked the community corrections sentenc e and resentenced

the defendant

to serve four year

s for the burgla

ry and misde

meanor theft con

victions in the first case; four years

for the burglary and misdemeanor theft convictions in the second case; and two years for the felony the ft convictions in the third case, all to be served consecutively. Id.

In reviewing the resentencing determination by the tria l court, we distinguished a revocation of community co

rrections from a

revocation of pr

obation. As we hav

e already noted, a trial cou

rt, upon revoking a community corrections sentence, has the authority

to “resentence

the defendant to-7-

any appropriate sentencing altern ative, in cluding incarceration, for any period of time up to the maximum sentence provided for the offense committed . . . .” Tenn. Code Ann. § 40-36-106(e)(4) (1997 & Supp. 2000). A tr ia l court rev oking probation, on the other hand,

can only “cause the defendant to commence the execution of the judgment as originally entered

. . . .” Id. § 40-35-311(d) (1997) (emphasis

added); see also id. § 40-35-311(e) ( Supp. 2000); id. § 40-35-310 (1997).

We also observed that once the trial court sentenced the defendant to the Department of Correc tion, i t no longer had jurisdiction over the sentence. See id. § 40-35-212(d) (1997). Moreover, when the Department of Correction placed the defendant upon probation, the trial court regained jurisdiction only to revoke probation. Id. § 40-35-311(d) (1997). As noted above, a trial court revoking probation can cause execution of the judgment as “originally entered.” See id. § 40- 35-311(d) (1997); id. § 40-35-311(e) ( Supp. 2000). As a re

sult, we concluded that the trial court had
no authority to increase the defendant’s sentences or to

run them consecutively. State v. Taylor , 992 S.W.2d at 945-46.

In contrast, the def

endant, Samuels, in

the present case was initially sentenced to six yea rs in the Davidson County Workhouse. See Tenn. Code Ann. § 40-35-212(c) (1997) (“ Unless the defendant receives a sentence in the department, the court shall ret ain ful l jurisdiction over the
manner of the defendant’s sentence service.”). Moreover, unlike Taylor , the defendant was placed
on community co

rrections and not

probation. As a re

sult, upon revoca

tion of such the com

munity corrections sentence, the trial court had the authority to resentence the defendant pursuant to Tenn. Code Ann. § 40-36-106(e)(4).

Fin all y, although the defendant correctly asserts that section 1 06(e)(4) does n ot explicitly refer to consecutive sentencing, it does provide that a trial court may resentence a defendant “f or any period of time up to the maximum sentence provided for the offense committed.” Id. § 40-36- 106(e)(4) (1997 & Supp. 2000). Moreover, the act also provides that the trial court “shall retain the authority to alter or amend at any time the length, terms or conditions of the sentence imposed .” Id. § 40-36-106(e)(

2) (1997 & Supp. 20

00) (empha sis added). When resentencing a defendant following the revocation of community co

rrections, the tr

ial court must

conduct a sentencing hearing i n accordance with the principles and procedures of the Criminal Sentencing Reform Act, which obviously address consecutive sentencing. See id. § 40-35-115 (1997). As weemphasized earlier, the trial court co

nducted such a he

aring and its findings were s upported by

the record in

this case.

CONCLUSION

After consideration of the record, we conclude that upon revoking the community corrections sentence, the trial court held a proper se ntencing hearing and did not err either in increasing the length of the defendant’s sentence or in ordering that the sentence be served c o nsecutively. We therefore affirm the

judgment of the Co

urt of Criminal Appe

als. It appea

ring that the def

endant is indigent, the costs of appeal are taxed to the State of Tennessee.

___________________________________ E. RILEY A

NDERSON, CHIE

F JUSTICE