Cyril v. Fraser

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
APRIL SESSION, 1995 September 19, 1995

Cecil Crowson, Jr.
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9409-CR-00345Clerk
Appellate Court
)
Appellee, )
)
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.
CARL STEVEN MCGILL, ) JUDGE
)
Appellant. ) (Sentencing)

ON APPEAL AS OF RIGHT FROM THE JUDGMENT OF THE
CIRCUIT COURT OF BLOUNT COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

NATALEE STAATS HURLEY CHARLES W. BURSON
Assistant Public Defender Attorney General and Reporter
318 Court Street
Maryville, TN 37804 CYRIL V. FRASER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

MIKE FLYNN
District Attorney General

PHILIP H. MORTON
Assistant District Attorney General
363 Court Street
Maryville, TN 37804-5906

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. The Defendant appeals from the trial court's imposition of

consecutive sentences upon resentencing the Defendant after the Defendant violated

the terms of the community corrections sentence previously ordered by the trial court.

We affirm the judgment of the trial court.

On January 26, 1993, the Defendant entered an open-ended plea of guilty to

one count of the Class B misdemeanor of illegal possession of a credit card,1 seven

counts of the Class A misdemeanor of fraudulent use of a credit card,2 and seven

counts of the Class E felony of forgery.3 He was subsequently sentenced to six months

for possession of the credit card, eleven months and twenty-nine days for each of the

convictions for fraudulently using a credit card, and four years on each of the forgery

convictions. All the sentences were ordered to be served concurrently except for one

four-year sentence for forgery, which was ordered to be served consecutively to one

of the Class A misdemeanor convictions, for an effective sentence of five years.

On May 17, 1993, in the same court, the Defendant was convicted on his plea

of guilty to the offense of assault.4 For this Class A misdemeanor conviction, he was

sentenced to eleven months and twenty-nine days, concurrent with his prior sentences.

1
Tenn. Code Ann. § 39-14-118(a).

2
Tenn. Code Ann. § 39-14-118(b).

3
Tenn. Code Ann. § 39-14-114.

4
Tenn. Code Ann. § 39-13-101.

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 The Defendant subsequently filed a motion requesting the trial court to amend

his sentence by placing him in the community corrections program. Pursuant to this

motion, the trial court modified the sentence by allowing the Defendant to serve the

sentence in community corrections.

Several months after the Defendant started serving his community corrections

sentence, a warrant was filed alleging that the Defendant had violated the terms and

conditions of his sentence. The warrant alleged, among other things, that the

Defendant failed to attend drug treatment sessions, failed to report for scheduled

appointments, failed to perform the community service work which had been ordered,

failed to pay on his court costs, failed to pay his supervision fee, and failed to report

that he was fired from his job. The trial court found that the Defendant had indeed

violated the terms of his community corrections, and the Defendant takes no real issue

with that finding. It is clear that the Defendant violated the terms of his sentence which

allowed him to be released in the community.

After ruling that the Defendant had violated the terms of his community

corrections sentence, the trial court determined that it would resentence the Defendant.

The court conducted a sentencing hearing. The court sentenced the Defendant to the

same sentence for each of the convictions but ordered that one of the four-year

sentences would run consecutively to the other four-year sentences. The remaining

sentences were to be served concurrently, for an effective sentence of eight years. On

this appeal, the Defendant argues that the trial court does not have the authority, after

revoking a Defendant's community corrections sentence, to restructure the sentences

by ordering them to be served consecutively when they had previously been ordered

to be served concurrently. In the alternative, the Defendant argues that if the court has

such authority, the trial judge erred or abused his discretion in so sentencing the

Defendant.

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 The Defendant concedes that the trial court has the authority to resentence a

Defendant who violates the terms of a sentence in community corrections. Specifically,

the statutory authority is as follows:

The court shall also 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(4).

In State v. Griffith, 787 S.W.2d 340 (Tenn. 1990), our supreme court rejected a

double jeopardy challenge to the constitutionality of the above referenced statute. In

Griffith, Justice Cooper wrote for the court as follows:

The above statutes reflect the policy that the sentencing of a
defendant to a community based alternative to incarceration is not final,
but is designed to provide a flexible alternative that can be of benefit both
to the defendant and to society and allows the court to monitor the
defendant's conduct while in the community corrections program. A
defendant sentenced under the Act has no legitimate expectation of
finality in the severity of the sentence, but is placed on notice by the Act
itself that upon revocation of the sentence due to the conduct of the
defendant, a greater sentence may be imposed. This being so, the
decision to resentence a defendant to a sentence greater than his original
sentence does not subject the defendant to multiple punishments for the
same offense; rather, the practice reflects the need to alter the
defendant's sentence in light of the fact that the court's initial sentence to
a community based alternative to incarceration was not effective. The
defendant not being subjected to multiple punishments for the same
offense, there is no violation of the guarantees against double jeopardy.

Id. at 342.

This court has previously observed that the provisions of the resentencing

statute do not permit the trial court to arbitrarily establish the length of the new sentence

nor may the statute be used by trial courts for the sole and exclusive purpose of

punishing the accused for violating the provisions of a community corrections sentence.

State v. Timothy Lamont Wade, No. 01-C01-9303-CR-00092, Davidson County (Tenn.

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Crim. App., Nashville, filed Nov. 24, 1993). At the resentencing hearing, the trial court

is to conduct the sentencing hearing and approach the sentencing of the Defendant in

the same manner as if the court were sentencing the Defendant initially, except that the

court may consider the fact that community corrections was not successful.

In State v. Patty, ___ S.W.2d ___ (Tenn. 1995), the Tennessee Supreme Court

held that a trial judge imposing a new sentence as a result of community corrections

failure is bound to sentence the Defendant within the same range as the original

sentence. In Patty, the Defendant and the State had initially agreed to the range

applicable to the Defendant. Concerning the State's initial sentencing recommendation,

our Supreme Court stated, "once accepted, at least as to range, to permit a later

enhancement beyond the original range violates fundamental concepts of justice." In

the case sub judice, the Defendant argues that to allow a trial judge, in resentencing

a Defendant as a result of community corrections failure, to order consecutive

sentences and thus increase the overall length of the sentences originally imposed,

would circumvent and vitiate the ruling in Patty.

First of all, we note that in Patty, there is nothing to indicate that the Defendant

possessed the requisite number of prior convictions to qualify for an enhanced range.

Secondly, the Supreme Court pointed out that while Tennessee Code Annotated

section 40-36-106(e)(4) permits the trial court, upon revocation of a community

corrections sentence, to resentence a Defendant to "any period of time up to the

maximum sentence provided by law for that offense," that section should be read in pari

materia with the preceding section, 40-36-106(e)(2) which provides that a community

corrections sentence shall be for "any period of time up to the maximum sentence

within the appropriate sentence range."

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 It is obvious that a defendant may not be sentenced for a term of years in excess

of the maximum provided for the offense in the defendant's sentencing range. This

court has held such a sentence to be an illegal sentence and as such a nullity. George

Cheairs v. State, No. 02C01-9304-CC-00070, Fayette County (Tenn. Crim. App.,

Jackson, filed Oct. 26, 1994). But see State v. Terry, 755 S.W.2d 854 (Tenn. Crim.

App. 1988). While the imposition of consecutive sentences by a trial court may be

erroneous because not warranted under the facts and sentencing laws, consecutive

sentences for multiple convictions are not considered illegal sentences.

We conclude that any lawful sentence within the defendant's range which is

justified by the facts, circumstances and sentencing laws and principles may be ordered

by the trial court in resentencing a defendant after a community corrections sentence

has been revoked. We now review the sentence imposed by the trial court.

When there is a challenge to the length, range or manner of service of a

sentence, it is the duty of this court to conduct a de novo review with a presumption that

the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d). This presumption is "conditioned upon the affirmative showing in the record

that the trial court considered the sentencing principles and all relevant facts and

circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing

Commission Comments provide that the burden is on the appellant to show the

impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, received at the trial

and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and

the arguments of counsel relative to sentencing alternatives; (4) the nature and

characteristics of the offense; (5) any mitigating or enhancing factors; (6) any

statements made by the defendant in his own behalf; and (7) the defendant's potential

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for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103 and -210; State

v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987) .

The Defendant's convictions of the fifteen counts of credit card fraud and forgery

arose out of his unauthorized use of a credit card to obtain goods and services in the

amount totaling more than eleven hundred dollars. This activity apparently occurred

during a period of about one week. The Defendant gave the following statement to the

officer who prepared the presentence report, "I wasn't working at the time and I need

money to support my running around and smoking pot."

At the time of resentencing, the Defendant was twenty-six years old. His

educational background is not stated in the presentence report. At the time the

presentence report was prepared, the Defendant had been incarcerated for several

months. His employment prior to that had been primarily as a construction laborer.

The Defendant had several convictions prior to those being addressed herein.

In 1986, he was convicted of possession of stolen property and was sentenced to three

years probation. In 1987, he was convicted of two counts of passing forged checks for

which he received two years probation on each count. Also in 1987, he was convicted

of shoplifting for which he was sentenced to eleven months and twenty-nine days with

all but thirty days suspended. In 1988, he was convicted of escape and sentenced to

one year. In 1990, he was convicted of vandalism and sentenced to eleven months

and twenty-nine days. Also in 1990, he was convicted of two counts of passing

worthless checks for which he was sentenced to eleven months and twenty-nine days

and a concurrent sentence of thirty days.

At the resentencing hearing, the State introduced certified copies of indictments

issued against the Defendant for crimes alleged to have been committed while the

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Defendant was serving his community corrections sentence. These indictments

charged the Defendant with approximately ten counts of forgery, five counts of theft,

three counts of aggravated burglary, one count of especially aggravated robbery, and

one count of attempted first degree murder.

In arriving at the length of the sentences imposed, the trial court did not place

on the record specific findings of fact upon which application of the sentencing

principles was based as required by statute. Tenn. Code Ann. § 40-35-209(c). The

court did not address on the record any enhancement or mitigating factors as required

by statute. Tenn. Code Ann. § 40-35-210. It appears that the trial court believed that

the lengths of the sentences imposed at the Defendant's first sentencing hearing were

a part of the plea agreement. While we do not have in the record a copy of the

transcript from the Defendant's first sentencing hearing, it does appear that the plea of

guilty was open-ended. Because the record does not affirmatively show that the trial

court considered the sentencing principles and all relevant facts and circumstances, our

review of the sentences imposed is de novo without a presumption of correctness.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Even without the presumption of correctness, we cannot conclude that the trial

court erred or abused its discretion in setting the length of each sentence at the

maximum within the range for each offense. The Defendant obviously has a previous

history of criminal convictions or criminal behavior in addition to those necessary to

establish the appropriate range. Tenn. Code Ann. § 40-35-114(1). Prior to the

commission of the offenses herein, the Defendant had at least eight convictions.

Because it is obvious that some of these convictions arose from actions of the

Defendant while he was on probation, it is clear that the Defendant has a previous of

unwillingness to comply with the conditions of a sentence involving release in the

community. Tenn. Code Ann. § 40-35-114(8).

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 It is also obvious from this record that this Defendant has evidenced a lack of

potential for rehabilitation or treatment, which is a factor to be considered in

determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5). In addition to

violating the terms of his community based sentence, the Defendant was terminated

from his employment for fighting on the job. In short, the trial court gave the Defendant

a golden opportunity in its initial sentence. The Defendant failed to take advantage of

the opportunity. Measures less restrictive than confinement had been recently applied

to this Defendant. Tenn. Code Ann. § 40-35-103(1)(C).

In announcing the trial court's decision that certain of the sentences were to be

served consecutively the court stated as follows:

And the record shows his lack of employment, also shows that he
refused to follow reasonable recommendations of the Community
Corrections director that would have solved his problems, but he really
didn't want to solve his problems. He wanted to continue living the way
he had been living.

I am going to order, based upon his record of criminal activity and
the fact that for a substantial period of time he has, in the recent and
distant past, depended upon violating the law to support himself, which
in my view says that he has, to a major extent, devoted himself to
violating the law as a source of livelihood.

This record supports a finding that the Defendant has established himself as a

professional criminal who has knowingly devoted himself to criminal acts as a major

source of livelihood. Tenn. Code Ann. § 40-13-115(1). We note again his initial written

statement to the officer who prepared the presentence report, "I wasn't working at the

time and I need money to support my running around and smoking pot." We also

conclude that the record supports the finding that this Defendant is an offender whose

record of criminal activity is extensive. Furthermore, we cannot say that the aggregate

maximum length of the sentences is not reasonably related to the offenses involved.

State v. Taylor, 739 S.W.2d 227,230 (Tenn. 1987).

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 Based upon our review of the entire record in this cause and the applicable

sentencing laws and principles, we cannot conclude that the trial judge erred or abused

his discretion in sentencing the Defendant. The judgment of the trial court is affirmed.

____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
DAVID G. HAYES, JUDGE

___________________________________
JOHN A. TURNBULL, SPECIAL JUDGE

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