IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMB ER SESSION, 1996 May 30, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9603-CR-00087
)
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON. THOMAS H. SHRIVER
ROBERT ENLO ) JUDGE
SOW ELL, J R., )
)
Appe llant. ) (Denial of Probation)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JOH N T. C ONN ERS , III CHARLES W. BURSON
134 Riverw ood Drive Attorney General and Reporter
Franklin, TN 37069
EUGENE J. HONEA
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. JOHNSON
District Attorney General
JON SEABORG
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A ve. North
Nashville, TN 37201-1649
OPINION FILED ________________________
APPEAL DISMISSED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appe llate
Procedure. The issue raised in this appeal is whether the trial judge erred or
abused his discretion in denying the Defendant’s petition to suspend the balance
of his effective six-year sentence without conducting a hearing on the merits of
the petition. We have determined that this appeal should be dismissed.
On January 1, 1995 and March 6, 1995, pursuant to a plea agreement, the
Defendant entered guilty pleas to three counts of aggravated burglary and one
count of burg lary. His plea agreement was a “packa ge dea l,” in which the State
agreed to dismiss other ch arges a gainst the Defen dant. 1 The plea agreement
provided that two of the Defendant’s three-year sentences would be served
consecutively to produce an effective sentence of six years to be served in the
Davidson County R egional Workhouse. Neither the Defendant’s “petition to enter
plea of guilty” nor the judgment documents reflect any agreement concerning a
suspension of any portion of the sentences. An order was entered stating that
as a p art of the plea a greem ent the Defe ndan t had a greed to drug treatm ent in
a program called “Life Line Drug Treatment program,” and one of the judgment
docum ents listed a s a spec ial condition , “Life Lines .”
On November 27, 1995, the Defendant filed a petition requesting that the
balance of his sentences be suspended. The petition alleged that the Defendant
1
As part of the agreem ent, the Defendant’s petition to enter his guilty pleas stated, “all other
presently pending charges against Defendant are to be dismissed.” We cannot determine from
the re cord how ma ny oth er ch arge s we re pe nding , altho ugh we do note that th e De fend ant’s
petition to suspend the balance of his sentence stated that the Defendant admitted that he
committed “a number of burglaries” in 1994.
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had successfully completed the “Life Line Drug Treatment program,” and further
alleged that the Defendant’s plea agreement “contemplated” that the Defendant
could petition for a suspension of the balan ce of h is effective six-year sentence
upon successful completion of the program. The trial court promptly denied the
petition without a hearing. The Defendant filed a petition to reconsider the denial
and attached a co py of a letter defense counsel had written to the assistant
district attorne y short ly after th e plea s were entere d con firming their
“understanding” that if the Defendant successfully completed the Life Line Drug
Treatment program the State would “be willing to recommend probation at the
hearing on his petition for a suspension of the balance of his effective six-year
senten ce.” The trial court promptly denied the petition to re conside r without a
hearing. It is from the orders of the tria l court denying the Defendant’s petition
to suspend the balance of his sentences that the Defendant appeals.
On appeal, the Defendant argues that the trial court “exceeded its
authority” in denying the petition for a suspended sentence without conductin g
a hearing. In the even t the trial court w as not re quired b y law to con duct a
hearing on the petition , the D efend ant arg ues th at the tria l judge abus ed his
discretion in denying the petition without a hearing.
This matter was submitted to this court for a decision on November 13,
1996. During the pendency of the appeal, the Defendant was released on parole,
failed to report to his parole officer and, effective August 7, 1996, had been
classified as “abscon ded from p arole.” This Cou rt subs eque ntly ord ered th at this
appeal would be dismissed for mootness unless the Defendant could show cause
why it should not be.
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Counsel for the Defendant subsequently filed an affidavit stating that the
Defendant’s parole was revoked in December, 1996 and the Defendant was
curren tly serving his sentence in the Department of Corre ction. In his affidavit,
his defense counsel asserted that, even though the issu es raised on a ppeal were
moot insofar as the Defendant is concerned, there was a routin e prac tice in the
Davidson County Criminal Court, Division I, of denying petitions for suspended
sentences without a hearin g and th at these c ases g enerally e vaded a ppellate
review. Counsel asserted that guidance was needed on the issue of whether a
petitioner was entitled to a hearing on a petition for a suspended sentence.
The doctrine of justiciability prompts courts to stay their hand in cases that
do not involve a genuine and existing controversy requiring the present
adjudication of prese nt rights. McIntyre v. Traughber, 884 S.W.2d 134, 137
(Tenn . Ct. App. 1994). The concept of mootness deals with the circumstances
that render a case no longe r justiciable. Id. A moo t case is on e that has lost its
character as a present, live controversy. A case will generally be considered
moot if it no longer serves as a mean s to provide relief to the preva iling party. Id.
The two most recognized exceptions to the mootness rule include issues of great
public interest and importance to the administration of justice and issues capa ble
of repetition ye t evading review. Id. Whether to take up cases th at fit into one of
the recognized exceptions to the mootness doctrine is discretionary with the
appellate courts. Id.
In the case sub judice, it is obvious that we cannot provide any meaningful
relief to the D efend ant eve n if we determine that the trial judge erred or abused
his discretion in denyin g the D efend ant’s p etition to susp end th e bala nce o f his
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sentence. To order the trial court to conduct an evidentiary hearing on the
Defe ndan t’s petition for a su spen ded s enten ce, in vie w of the Defe ndan t’s
subsequent conduct and current status, would border on the ridiculous.
Counsel for the Defendant argues that this Court should decide the issue
presented as an exception to the mootness rule because the issues are ca pable
of repetition ye t evade a ppellate re view. We do not believe that our sentencing
laws mandate that a trial judge condu ct an evidentiary he aring each a nd every
time a defendant files a petition requesting the court to suspend the balance of
a senten ce. See Tenn. Code Ann. §§ 40-35-212(c); 40-35-31 4(c). We have
located no Tennessee case involving the precise issue of whether a petition for
modification of sentence pursuant to Tennessee Code Annotated section 40-35-
314(c) may be denied without conducting an evidentiary hearing.2 The sta tute
itself provides only that the trial judge maintains jurisdiction over those
defend ants sentenced to the local jail or workhouse, giving him or her the
authority to modify such sentences, and that applications to reduce or alter the
manner of service of a sente nce ma y be made at no less than two (2) mon th
intervals. Contrary to the Defendant’s position, we do not believe the language
of the statute implies tha t a hearing mu st be conducted for every application.
Certa inly the trial court may conduct an evid entiary hearin g in appropriate cases,
but to require a hearing on each and every application could place an
unreasonable burden on the trial court. Some discretion is warranted.
2
W e not e tha t this is sue is dist inct fr om a m otion to red uce sent enc e pur sua nt to R ule 35 (b) of
the Tennessee Rules of Criminal Procedure. The Advisory Commission comments to Rule 35 make
it clear that it does not alter the statutory authority of trial courts to modify the sentences of
individuals sentenced to local jails or workhouses, but rather affects individuals sentenced to the
Department of Correction.
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From the record before us, we cannot conclude that the trial judge erred
or abused his discretion in denying the petition for a suspension of the remainder
of the sente nce witho ut an evid entiary he aring. We are provided with no facts of
the underlyin g offense s. We have no knowledge of how many charges against
the Defendant were dismissed as part of the plea agreement. We know nothing
of the Defendant’s background, his potential or lack of potential for rehabilitation,
or his institutional record. The order entered by the trial judge denying the
petition for a susp ended senten ce states that the cou rt considered the “entire
record.” The “entire record” before us reflects little more than that the Defendant
entered into a plea agreement which provided for a six -year sentence and that
he completed a drug treatment program while incarcerated.
Because the issu es pre sente d in this appe al are m oot, this appe al is
dismiss ed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JERRY L. SMITH, JUDGE
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