State v. Robert Sowell

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. -2- 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. -3- 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 -4- 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. -5- 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 -6-