02/28/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 28, 2020 Session
STATE OF TENNESSEE V. ALFRED R. MASON
Appeal from the Circuit Court for Sevier County
No. 22714, 23363 James L. Gass, Judge
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No. E2019-00916-CCA-R3-CD
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Alfred R. Mason, Defendant, pled guilty to various drug offenses and received a sentence
to be served on community corrections. After a violation warrant was filed and
Defendant admitted to the violation, the trial court revoked community corrections and
ordered Defendant to serve his sentence. Defendant appeals from the revocation of his
community corrections sentence arguing that the trial court abused its discretion by (1)
ordering Defendant to serve the balance of his sentence instead of resentencing him and
(2) failing to award Defendant credit for time served on community corrections. After
our review, we affirm the revocation of Defendant’s community corrections sentence and
remand to the trial court. On remand, the trial court should enter amended judgment
forms to reflect credit for time successfully served on community corrections prior to the
issuance of revocation warrants.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.
Bryce W. McKenzie, Sevierville, Tennessee, for the appellant, Alfred R. Mason.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Jimmy Dunn, District Attorney General; and Ron Newcomb, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
In case number 22714, Defendant was charged by the Sevier County Grand Jury
by presentment with the following: (1) Count One, sale of buprenorphine; (2) Count
Two, delivery of buprenorphine; (3) Count Three, conspiracy to sell or deliver
buprenorphine; (4) Count Four, sale of a counterfeit controlled substance; and (5) Count
Five, sale of a counterfeit controlled substance.1 In case number 23363, Defendant was
charged via presentment with one count of introducing contraband into a penal facility.
On November 13, 2018, Defendant entered guilty pleas in case number 22714 to
one count of sale of a Schedule III controlled substance and one count of conspiracy to
sell or deliver a Schedule II controlled substance. In case number 23363, Defendant pled
guilty to introduction of a Schedule III drug into a penal facility. The negotiated plea
agreement specified that Defendant was sentenced to four years for the sale of a Schedule
III controlled substance in Count One and two years for conspiracy in Count Three. In
Counts Two, Four, and Five, a nolle prosequi was entered. The sentences in case number
22714 were ordered to be served concurrently. In case number 23363, Defendant was
sentenced to four years for introduction of contraband into a penal facility. The trial
court ordered the sentence in case number 22363 to be served consecutively to the
sentences in case number 22714, for a total effective sentence of eight years. The trial
court ordered the sentences to be served on community corrections.
A short 72 days later, on January 24 2019, a violation of community corrections
warrant was issued against Defendant, alleging that Defendant violated the terms of his
community corrections sentence by: (1) failing to report for intake; (2) failing to provide
verification that he has completed an alcohol and drug assessment; (3) failing to provide
verification that he has completed the neonatal abstinence syndrome class; (4) failing to
make himself available for drug screens; and (5) failing to make payments toward
financial obligations.
The trial court held a hearing on the violation at which Defendant plead guilty to
the violation of community corrections. There was no agreement about Defendant’s
sentence as part of the plea agreement. At the hearing, the State noted that Defendant
1
In the first part of the presentment for Count III, conspiracy to sell or deliver, the presentment
alleged that Defendant sold or delivered “Schedule II Methamphetamine.” However, the presentment
goes on to detail the acts in furtherance of the conspiracy to sell or deliver “Schedule III Buprenorphine.”
The “waiver of jury trial and guilty plea” included in the record indicated that the parties understood
Defendant was charged in this count with conspiracy to sell or delivery buprenorphine. The judgment
form disposing of Count III indicates that Defendant was convicted of conspiracy to sell and/or delivery
“narcotics,” without specifying a classification of controlled substance, and classifies the offense as a
Class E felony. Conspiracy to sell or deliver a Schedule III substance is punishable as a Class E felony.
See T.C.A. §§ 39-17-417(d)(1) (setting forth punishment for sale or delivery of a Schedule III controlled
substance as a Class D felony); 39-12-107(c) (explaining that conspiracy is punished one classification
level lower than the offense that is the subject of the conspiracy) .
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was “facing a contraband charge pending bound-over status” in case number 25603, and
explained that the State agreed Defendant would “enter a plea of guilty to the
misdemeanor simple possession and run it concurrent to whatever sentence that he
receive[d]” from the “open plea to the VOP.”
Although the record does not contain a formal hearing wherein Defendant was
subjected to cross examination, Defendant chatted with the trial judge, telling him that he
was 40 years of age and had “been to prison twice.” Defendant explained that his sister
disappeared while he was on community corrections and he was “not going to lie” to the
court, admitting that he “shot dope.” Defendant stated that he had “been a trustee for 20
months in jail both times.”
The trial court determined that the “history” was “very concerning” because
Defendant had “three failed attempts at complying with release into the community.” In
2009, Defendant was on parole on a four-year sentence and was revoked. In 2011,
Defendant had another violation of probation. The trial court noted that as a result of the
violation, Defendant’s sentence was “revoked, reinstated with a one-year extension and
[the addition of] 100 hours of community service work.” In 2012, Defendant’s probation
was again revoked. This time “he was revoked to serve the sentence.” The trial court
opined that Defendant was sober and a reliable inmate but that he has a problem
complying with release into the community. The trial court continued:
I see folks that come back off probation and don’t make it because drugs
have impacted their life. We now today have much more resources to help
with folks that have been given a chance and failed. But in this situation,
I’m going to tell you, I cannot - - given that there’s revocations, . . . . And
given that that’s the situation, the [c]ourt is of the opinion that that prior
history of failing to comply with the requirements of probation have failed,
the community corrections efforts have failed, and for those reasons, this
[c]ourt will order you to execute the sentence in your probation violation.
The written “VOP Order” entered on May 2, 2019, found Defendant violated the terms of
his community corrections sentence by “[f]ailure to [r]eport” and ordered Defendant to
“serve the balance” of his sentence. The order is silent as to whether Defendant received
credit for time served on community correction. There are no amended judgment forms
in the record.
Analysis
On appeal, Defendant argues that the trial court abused its discretion by ordering
Defendant to serve the balance of his sentence in incarceration and by failing to order
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Defendant receive credit for time served on community corrections. The State, on the
other hand, insists that the trial court properly revoked Defendant’s community
corrections sentence. The State concedes, however, that the trial court erred by failing to
enter an amended judgment to reflect Defendant was entitled to credit for time served on
community corrections.
“The Community Corrections Program was created as an alternative to
incarceration that provides flexibility and promotes accountability, while reducing the
number of ‘nonviolent felony offenders’ in the state prison system.” State v. Dennis
Karr, No. E2014-01245-CCA-R3-CD, 2015 WL 1593635, at *4 (Tenn. Crim. App. Apr.
7, 2015) (citing T.C.A. § 40-36-104; State v. Estep, 854 S.W.2d 124, 126-27 (Tenn.
Crim. App. 1992)), no perm. app. filed. “While the program provides defendants with
freedom that would otherwise be removed if the defendant had been incarcerated, there
are specific remedies available to the trial court to ensure that those who fail to comply
with the program are sufficiently penalized for their noncompliance.” Id. (citing T.C.A. §
40-36-106(e)(4)).
The procedures for revocation of probation and community corrections are similar,
and the same legal principles apply. State v. Harkins, 811 S.W.2d 79, 83 (Tenn. 1991).
A trial court may “revoke a sentence of probation or a suspended sentence upon a finding
that the defendant has violated the conditions of his probation or suspended sentence by a
preponderance of the evidence.” Id. at 82 (citing T.C.A. § 40-35-311); see T.C.A. § 40-
36-106(e)(3)(B). Proof of a violation “need not be established beyond a reasonable
doubt, but it is sufficient if it allows the trial judge to make a conscientious and intelligent
judgment.” Harkins, 811 S.W.2d at 82. On appeal, this Court will review a trial court’s
decision to revoke a community corrections sentence under an abuse of discretion
standard of review. Id. To find an abuse of discretion, the record must contain no
substantial evidence to support the conclusion of the trial judge that a violation has
occurred. Id. In reviewing the trial court’s findings, it is our obligation to examine the
record and determine whether the trial court has exercised a conscientious judgment
rather than an arbitrary one. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991). Once a trial court has found sufficient evidence of a violation, the trial court has
the authority to revoke the community corrections sentence. T.C.A. § 40-36-106(e).
Then, the trial court has the option to “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. T.C.A. § 40-36-106(e)(4).
Defendant does not dispute that he “admitted to failing to report to community
corrections due to extreme circumstances in his life” but argues that it was improper for
the trial court to enter a revocation order “without appropriate resentencing.” Revocation
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of a community corrections sentence does not require a trial court to hold a new
sentencing hearing unless the trial court imposes a new sentence. State v. Samuels, 44
S.W.3d 489, 493-94 (Tenn. 2001); State v. Crook, 2 S.W.3d 238, 240 (Tenn. Crim. App.
1998); State v. Willy J. Hall, No. E2014-01156-CCA-R3-CD, 2015 WL 2258008, at *3
(Tenn. Crim. App. May 13, 2015) (noting that “[w]hen the trial court does not alter the
length, terms, or conditions of the sentence imposed, the court is not required to hold a
sentencing hearing), no perm. app. filed. Defendant herein admitted that he “shot dope”
and failed to report while on a community corrections sentence. Moreover, Defendant’s
presentence report revealed multiple violations. In our view, the trial court did not abuse
its discretion in ordering Defendant to serve the balance of his sentence in confinement.
Defendant is not entitled to relief on this issue.
Jail Credit/Amended Judgment Forms
Defendant also argues that this Court should remand the matter to the trial court
for entry of amended judgments reflecting jail credit for time served on community
corrections. The State concedes error. We agree.
“[A] defendant whose community corrections sentence is revoked is entitled to
credit toward the sentence for time spent in community corrections prior to revocation.”
Carpenter v. State, 136 S.W.3d 608, 612 (Tenn. 2004) (citing T.C.A. § 40-36-106(e)(4));
see also T.C.A. § 40-36-106(e)(3)(B) (stating that an offender serving a community
corrections sentence is entitled to credit “for actual time served in the community-based
alternative program”). “The award of credit for time served on community corrections is
mandatory, and the trial court has no authority to deny credit no matter how lackluster or
unsuccessful the defendant’s performance.” Jackson v. Parker, 366 S.W.3d 186, 190
(Tenn. Crim. App. 2011) (internal quotation marks omitted); see also State v. McNack,
356 S.W.3d 906, 910 (Tenn. 2011) (“Our courts have held that the language of the statute
as to sentence credits is mandatory, not discretionary.”). However, a defendant’s
entitlement to these sentencing credits terminates upon the issuance of a violation
warrant. McNack, 356 S.W.3d at 912 (relying on State v. Shaffer, 45 S.W.3d 553 (Tenn.
2001)). “The interruption of the probationary period is triggered by the issuance of the
probation revocation warrant and not by service of the warrant on the defendant.”
Shaffer, 45 S.W.3d at 555 (citing Allen v. State, 505 S.W.2d 715, 717 (Tenn. 1974)).
Here, the “VOP Order” stated only that Defendant was to serve the balance of his
sentence. It was completely silent as to any credit Defendant earned on community
corrections and failed to calculate any jail credits to be applied against the balance of
Defendant’s sentence. Moreover, there is no amended judgment in the record.
Consequently, we must remand the matter to the trial court for entry of amended
judgments reflecting credit for time served on community corrections.
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Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed and remanded
for entry of corrected amended judgments.
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TIMOTHY L. EASTER, JUDGE
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