IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 11, 2004 Session
MICHAEL W. CARPENTER v. STATE OF TENNESSEE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 00-I-1154 Seth Norman, Judge
No. M2002-02187-SC-R11-PC - Filed June 24, 2004
We granted review to determine whether the revocation of a community corrections sentence may
be challenged in a post-conviction petition on the ground of ineffective assistance of counsel. The
trial court found that the petitioner could not collaterally attack the revocation of his community
corrections sentence in a post-conviction proceeding and dismissed the post-conviction petition. The
Court of Criminal Appeals reversed the trial court’s judgment and remanded for further proceedings.
After reviewing the record and applicable authority, we agree with the Court of Criminal Appeals’
conclusion that a petitioner may challenge the revocation of a community corrections sentence in a
post-conviction proceeding and that the trial court erred in dismissing the petitioner’s post-
conviction petition. We therefore affirm the Court of Criminal Appeals’ judgment and remand to
the trial court for further proceedings.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed; Case Remanded to the Trial Court
E. RILEY ANDERSON , J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and ADOLPHO A. BIRCH , JR., JANICE M. HOLDER , and WILLIAM M. BARKER, JJ., joined.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; David H.
Findley, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and
Jon P. Seaborg, Assistant District Attorney General, for the Appellant, State of Tennessee.
Thomas F. Bloom, Nashville, Tennessee, for the Appellee, Michael W. Carpenter.
OPINION
Background
On December 19, 2000, the petitioner, Michael W. Carpenter, pleaded guilty in the Criminal
Court of Davidson County, Tennessee, to one charge of felony theft and one charge of misdemeanor
theft. He was sentenced by the trial court as a Range II multiple offender to six years for the felony
theft and eleven months, twenty-nine days for the misdemeanor theft, to be served concurrently. The
trial court found that because Carpenter was convicted of a property-related felony, he was eligible
for a community-based alternative to incarceration pursuant to Tennessee Code Annotated section
40-36-106. The trial court ordered Carpenter to serve his sentence in a community corrections
program as authorized by Tennessee Code Annotated section 40-36-302, which, in this case, was the
Davidson County Drug Court.
On April 30, 2001, the State filed a revocation warrant and a supporting affidavit seeking to
revoke Carpenter’s community corrections sentence. The affidavit alleged he had violated the terms
of his community corrections sentence by failing to return to the “Drug Court Residential Program”
following a medical appointment on April 28, 2001. He was taken into custody on May 2, 2001.
Because he was indigent, an attorney was appointed to represent him in the revocation hearing.
After conducting a hearing, the trial court revoked Carpenter’s community corrections
sentence. The trial court also imposed a new sentence of eight years imprisonment, which exceeded
the original sentence of six years, but granted credit as required for approximately five months served
in custody prior to his two sentencing hearings.
On July 22, 2002, Carpenter filed a post-conviction petition challenging the revocation of his
community corrections sentence which alleged that he was denied his constitutional right to the
effective assistance of counsel during the revocation and resentencing hearing.1 The trial court
dismissed the petition for failing to state a cognizable claim after concluding that the right to
effective assistance of counsel does not apply in a revocation hearing. See Tenn. Code Ann. §§ 40-
30-101 to -122 (2003) (“Post-Conviction Procedure Act”).
On appeal, the Court of Criminal Appeals reversed the trial court’s judgment, holding that
a judgment following a community corrections revocation and resentencing hearing, in which a
defendant may receive a sentence greater than the sentence originally imposed, may be collaterally
attacked pursuant to the Post-Conviction Procedure Act. The court explained that even though the
revocation of community corrections and the resentencing may be considered separate proceedings,
both decisions are, in practice, frequently made after a single hearing. Moreover, the court
emphasized that the evidence supporting revocation could also be relevant to resentencing. The
1
The petitioner did not directly appeal the revocation and resentencing, but contended that he had newly
discovered evidence as to the grounds for revocation and that the trial court erred in failing to recuse itself. The Court
of Criminal Appeals found these issues were without merit, and they were not raised on appeal to this Court.
-2-
court therefore remanded to the trial court for further proceedings on Carpenter’s post-conviction
petition.
We granted review.
Analysis
The issue of whether the revocation of a community corrections sentence may be challenged
in a post-conviction petition on the ground of ineffective assistance of counsel presents a question
of first impression before this Court.
The State contends that the Court of Criminal Appeals erred in holding that a post-conviction
petition may properly challenge the revocation of a community corrections sentence. The State
concedes that a petitioner whose community corrections sentence has been revoked may attack the
later resentencing in a post-conviction proceeding, but it asserts that the Post-Conviction Procedure
Act does not provide for post-conviction relief from an order revoking a community corrections
sentence. The State argues that the Court of Criminal Appeals erred in determining that a
community corrections revocation could not be separated from the later resentencing and also erred
in refusing to apply analogous case law that bars post-conviction challenges to the revocation of
probation.
The petitioner, Michael Carpenter, argues that the Court of Criminal Appeals did not err in
holding that the right to effective assistance of counsel applies to the revocation of a community
corrections sentence. Carpenter asserts that the Court of Criminal Appeals correctly reasoned that
it is impractical to distinguish claims challenging the revocation of a community corrections sentence
from claims challenging the resentencing. Moreover, Carpenter contends that the Court of Criminal
Appeals properly emphasized that the same evidence that leads the trial judge to order revocation
may also influence the resentencing.
We begin our analysis of this issue by reviewing the Tennessee Community Corrections Act
of 1985 (“the Act”). Tenn. Code Ann. §§ 40-36-101 to -106 (2003). This Court has recognized that
the purpose of the Act is “to ‘establish a policy within the state to punish selected, nonviolent felony
offenders’ in . . . community based alternatives to incarceration, thereby reserving secure
confinement facilities for violent felony offenders.” State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001) (quoting Tenn. Code Ann. § 40-36-103(a) (1997)). The Act authorizes a sentencing court to
sentence an eligible defendant to an appropriate community-based alternative to incarceration under
such terms and conditions that the court prescribes. Tenn. Code Ann. § 40-36-106(e)(1) (2003).
Following the imposition of 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.”
Tenn. Code Ann. § 40-36-106(e)(2) (2003). The trial court also has the authority to revoke a
community corrections sentence and to impose resentencing:
-3-
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.
Tenn. Code Ann. § 40-36-106(e)(4) (2003). It is apparent from the foregoing that community
corrections is a distinctly different sentencing scheme than probation. One principal difference is
that the community corrections sentencing scheme authorizes the trial court to impose a new
sentence for any period of time up to the maximum sentence for the offense committed upon
revocation of community corrections. Id.
The issue of whether the trial court’s revocation of a community corrections sentence may
be challenged in a post-conviction proceeding is not addressed in the Act or in our prior case law.
As the parties note, however, the Court of Criminal Appeals has previously addressed the analogous
issue of whether a probation revocation may be challenged in post-conviction proceeding. In Young
v. State, 101 S.W.3d 430, 432 (Tenn. Crim. App. 2002), the intermediate court held that an order
revoking probation merely ends the probation term, reinstates the original sentence, does not impose
a new sentence, and is not a “sentence” that may be challenged under the Post-Conviction Procedure
Act. In short, the court concluded that “an order revoking suspension of sentence or probation
typically ends the period of suspension of the execution of the original term and mandates that the
original sentence be carried out.” Id. at 432.
We agree with the Court of Criminal Appeals’ conclusion that Young is inapplicable to the
present case. A revocation of a community corrections sentence, unlike the revocation of probation,
presents the additional issue of resentencing. See Tenn. Code Ann. § 40-36-106(e)(4) (2003).
Community corrections revocation proceedings present two major issues: first, whether the terms
of the community corrections sentence have been violated, and second, what sentence should be
imposed if a revocation is warranted. See Tenn. Code Ann. § 40-36-106(e)(4) (2003). As the State
concedes, a petitioner may challenge the resentencing which follows revocation of community
corrections in a post-conviction proceeding based on an allegation of ineffective assistance of
counsel.
Following a revocation of a community corrections sentence, the trial court exercises the
same discretion in resentencing as did the initial sentencing court. Tenn. Code Ann. §§ 40-36-
106(e)(2), (e)(4) (2003). The trial court has the authority, upon considering the evidence in the
revocation and resentencing hearing, to order a new and longer sentence than had initially been
ordered. See Tenn. Code Ann. § 40-36-106(e)(4) (2003). Such authority was exercised in the case
at bar. Another important difference between the revocation of probation and the revocation of a
community corrections sentence is that a defendant whose probation is revoked is not entitled to
-4-
credit toward the sentence for time on probation, while a defendant whose community corrections
sentence is revoked is entitled to credit toward the sentence for time spent in community corrections
prior to the revocation. See id. Given these significant distinctions between the revocation of a
community corrections sentence and the revocation of probation, we decline to extend Young to the
community corrections context.
In reaching this conclusion, we also agree with the Court of Criminal Appeals’ practical
observation that the revocation of a community corrections sentence and resentencing are often
addressed in the same hearing and are irretrievably intertwined.2 For example, the trial court will
necessarily in resentencing consider the defendant’s behavior in the performance of his or her
community corrections sentence. In such cases, there is simply no effective way to discern
ineffectiveness of counsel that prejudices a defendant as to the issue of revocation from
ineffectiveness of counsel that prejudices the defendant as to the issue of resentencing. Indeed, an
attorney’s ineffectiveness in the “revocation portion” of a community corrections revocation hearing
may very well affect the “resentencing portion” of the same proceeding in the form of a sentence that
is greater than the sentence originally imposed. As noted above, the State has conceded that the issue
of ineffectiveness of counsel during resentencing may be raised in a post-conviction proceeding.
Accordingly, we conclude that the issue of ineffective assistance of counsel in a revocation
of a community corrections sentence may be raised in a post-conviction proceeding.
Conclusion
After reviewing the record and applicable authority, we agree with the Court of Criminal
Appeals’ conclusion that a petitioner may challenge the revocation of a community corrections
sentence in a post-conviction proceeding and that the trial court erred in dismissing the petitioner’s
post-conviction petition. We therefore affirm the Court of Criminal Appeals’ judgment and remand
to the trial court for further proceedings. Costs on appeal are taxed to State of Tennessee.
___________________________________
E. RILEY ANDERSON, JUSTICE
2
W hile the State correctly points out that post-conviction allegations often may be divided into cognizable and
non-cognizable claims, the examples of non-cognizable issues it provides, e.g., newly discovered evidence, recusal, the
length of the sentence, and ineffective assistance of counsel in a prior post-conviction proceeding, are clearly
distinguishable from the constitutional claim of ineffective assistance of counsel alleged by Carpenter in this case.
-5-