IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE 

February 7, 2001 Session

STATE OF TENNESSEE v. EDWARD LORENZO SAMUELS

 Appeal by Permission from the Court of Criminal Appeals

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 defendant’s sentence from six to eight years and ordered 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 trial

court’s judgment. After considering the record, we conclude that upon revoking the community

corrections sentence, the trial court held a proper sentencing hearing and did not err either in

increasing the length of the defendant’s sentence or in ordering that the sentence be served

consecutively. We therefore affirm the judgment of the Court of Criminal Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals

Affirmed

E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which FRANK F. DROWOTA, III,

ADOLPHPO A. BIRCH, JR. JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Jeffrey A. DeVasher, Assistant Public Defender; and Ralph W. Newman, Assistant Public Defender,

Nashville, Tennessee, for the appellant, Edward Lorenzo Samuels.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T.

Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon L.

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

OPINION

In December of 1996, the defendant, Edward L. Samuels, pled guilty to theft of property over

$1,000, a class D felony, and was sentenced as a Range II multiple offender to serve six (6) years in
1

The applicab le sentencing ra nge was four to eight years. See Tenn. Code Ann. § 40 -35-

112(b)(4) (1997).

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the Davidson County Workhouse.1

 The sentence was to run concurrently with a five (5)-year

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 both substance abuse and anger management. The defendant testified that he

had been granted a suspended sentence and community corrections for the cocaine offense and that

he had arranged for housing and employment in the event he also received a suspended sentence in

the present case. The trial court granted the defendant’s petition 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 for 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 custody he had been unable to pay for housing, became depressed, and

resumed his use of drugs. The trial court revoked the community corrections sentence and

determined that the defendant should be resentenced to eight years instead of the original six-year

sentence. 

 

The trial court decided to increase the length 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; unwillingness to

comply with 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 sentence to run consecutively to the defendant’s sentence for the cocaine

offense, after finding that the defendant was a professional criminal who knowingly 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 served consecutively 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. Taylor, 992 S.W.2d 941 (Tenn. 1999), in which we held

that the trial court lacked the authority to impose consecutive sentencing after revoking probation

where the defendant had served the sentence in the Department of Correction. After the Court of

Criminal Appeals affirmed the trial court’s judgment for a second time, the defendant once again

sought permission to appeal. We granted review to consider these issues.
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ANALYSIS

Standard of Review

We begin our analysis with the familiar principles that govern our review of a sentencing

determination imposed under the Criminal Sentencing Reform Act of 1989. When reviewing the

length, range, or manner of service of a sentence imposed by the trial court, the appellate court 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 been evaluated and 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 sentencing, 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 Corrections

The Tennessee Community Corrections Act was enacted in 1985. One of the purposes of

the act was to “[e]stablish a policy within the state to punish selected, nonviolent felony offenders

in front-end community based alternatives to incarceration, thereby reserving secure confinement

facilities for violent felony offenders.” Tenn. Code Ann. § 40-36-103(a) (1997); see State v. Griffith,

787 S.W.2d 340, 341 (Tenn. 1990).

Under the Community Corrections Act, “the court is authorized to sentence an eligible

defendant as defined in this section to any appropriate community-based alternative to incarceration

provided in accordance with the terms of this chapter, and under such additional terms and

conditions as the court may prescribe, in lieu of incarceration in a state penal institution or local jail

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

In sentencing an eligible defendant 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). 
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With these statutory provisions and the appropriate standard of review in mind, we turn to

the specific issues raised by the defendant in this case.

Resentencing Following Revocation of Community Corrections

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

arbitrarily and erroneously increased the length of his sentence from six to eight years and ordered

the sentence to be served consecutively to his sentence in an unrelated case. The defendant’s

argument is largely based on the following comments made by the trial court when it originally

granted the community correction sentence:

One of the things holding over your head is I could almost guarantee

you an eight year sentence consecutive, if you were to violate this; do

you understand what that means, because you’ve got a record that

would justify it, if we had a sentencing hearing. No question about

it.

. . . .

I will tell you that I will remember this . . . [and] that if you violate

this, we will have a little sentencing hearing, and you are probably

going to get eight years consecutive.

The State responds that the trial court properly held a sentencing hearing after revoking the

community corrections sentence and that the sentence was supported by the trial court’s findings.

 

We begin our review by observing that a trial court has the authority, upon revocation of a

community corrections sentence, to resentence a defendant to a period of incarceration up to the

maximum for the offense. See State v. Griffith, 787 S.W.2d at 341. The applicable statute 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

modification of the program to which the defendant has been

sentenced, and the court may resentence the defendant to any

appropriate sentencing alternative, including incarceration, for any

period of time up to the maximum sentence provided for the offense

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 to the defendant’s position, there is no statutory provision limiting

consecutive sentencing to related offenses or offenses stemming from the same pro ceeding. See, e.g., State v. Moore,

942 S.W.2d 5 70, 572 (Tenn. Crim. App. 1996 ).

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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 sentence, the trial court “shall retain the authority

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

In resentencing a defendant, a trial court may impose a sentence of incarceration greater than

the sentence originally imposed without violating the double jeopardyprovisions ofthe 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 Sentencing Reform Act, and an appellate court must review the new

sentence in accordance with the standard of review discussed above. See, e.g., State v. Crook, 2

S.W.3d 238, 240 (Tenn. Crim. App. 1998).

In this case, the record reveals that the trial 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 that the applicable range of punishment for the class D felony was four to eight years.

 The trial court increased the length of the sentence from six to eight years after finding three

enhancement factors were supported by the factual record. The enhancement factors were (1) the

defendant had a previous history of criminal convictions and behavior; (2) the defendant had a

history of unwillingness to comply with conditions of a sentence involving release; and (3) the

defendant committed a felony offense while on probation. See Tenn. Code Ann. § 40-35-114(1),

(8), and (13)(C) (1997 & Supp. 2000). The trial court gave “great weight” to these enhancement

factors and found no evidence of mitigating factors. Moreover, in increasing 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 the sentence 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

the defendant was an offender whose record of criminal activity was extensive. See id. § 40-35-

115(b)(1) and (2) (1997). The trial court expressly found that “the aggregate term reasonably relates

to the severity of the offenses, and is necessary to protect the public from further serious conduct.”3

In our view, the findings of the trial court support its decision regarding the length of the

sentence and consecutive sentencing. In particular, we note that the presentence report reflects the

defendant’s prior convictions for selling narcotics, aggravatedburglary, numerous burglary offenses,

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 trial
4 We later found p lain error in that the defendan t pled guilty to a burglary offense for which he had not

been indicted and we modified the judgment to reflect conviction for two burg lary offenses and three misdemeanor th eft

conviction s. State v. Taylor, 922 S.W.2d at 943-44.

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court’s decision was predetermined and arbitrary based on its comments when originally granting

the community corrections sentence. The record indicates that the trial court strongly advised the

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

community corrections sentence was later revoked, the trial court did not simply impose a

predetermined sentence; instead, it conducted a proper sentencing hearing and made the appropriate

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 court lacked the authority to revoke the community corrections sentence and to

require the sentence to run consecutively to his sentence in an unrelated case. The State maintains

that the trial court’s determination was supported by the record and that Taylor is distinguishable

from this case. We agree with the State’s position.

Our analysis necessarily begins with the extensive and tortuous procedural history in State

v. Taylor. The defendant entered guilty pleas in two cases to a total of three burglary offenses and

two misdemeanor theft offenses4

 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 the community

corrections sentence and ordered the defendant to serve four years in the Department of Correction

for the burglary and misdemeanor theft convictions in the first two cases. Id. at 942-43. When the

defendant pled guilty to the two counts of felony theft, the trial court imposed a sentence of two

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 defendant completed a “Special 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 probation in all three cases

and ordered the defendant to serve six years in community corrections. Id. When the defendant was

later charged with new offenses, the trial court revoked the community corrections sentence and

resentenced the defendant to serve four years for the burglary and misdemeanor theft convictions in

the first case; four years for the burglary and misdemeanor theft convictions in the second case; and

two years for the felony theft convictions in the third case, all to be served consecutively. Id. 

In reviewing the resentencing determination by the trial court, we distinguished a revocation

of community corrections from a revocation of probation. As we have already noted, a trial court,

upon revoking a community corrections sentence, has the authority to “resentence the defendant to
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any appropriate sentencing alternative, including 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 trial court revoking 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

Correction, it 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 result, 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 defendant, Samuels, in the present case was initially sentenced to six years

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 retain full jurisdiction over the

manner of the defendant’s sentence service.”). Moreover, unlike Taylor, the defendant was placed

on community corrections and not probation. As a result, upon revocation of such the community

corrections sentence, the trial court had the authority to resentence the defendant pursuant to Tenn.

Code Ann. § 40-36-106(e)(4). 

Finally, although the defendant correctly asserts that section 106(e)(4) does not explicitly

refer to consecutive sentencing, it does provide that a trial court may resentence a defendant “for 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. 2000) (emphasis added). When resentencing a defendant

following the revocation of community corrections, the trial court must conduct a sentencing hearing

in accordance with the principles and procedures of the Criminal Sentencing Reform Act, which

obviously address consecutive sentencing. See id. § 40-35-115 (1997). As we emphasized earlier,

the trial court conducted such a hearing and its findings were supported 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 sentencing hearing and did not err either in increasing the

length of the defendant’s sentence or in ordering that the sentence be served consecutively. We

therefore affirm the judgment of the Court of Criminal Appeals. It appearing that the defendant is

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

___________________________________ 

E. RILEY ANDERSON, CHIEF JUSTICE