State of Tennessee v. Mark Alan Hager ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs on January 5, 2016
STATE OF TENNESSEE v. MARK ALAN HAGER
Appeal from the Criminal Court for Shelby County
Nos. W1201124 and W1201322 James C. Beasley, Jr., Judge
No. W2015-00570-CCA-R3-CD - Filed April 21, 2016
The Defendant, Mark Alan Hager, pled guilty to a charge of burglary of a motor vehicle
and to a charge of theft of property valued at $1,000 or more. See Tenn. Code Ann. §§
39-14-402, -103, -105(a)(3). Pursuant to the plea agreement, the defendant received
concurrent terms of one year and three years respectively, on community corrections.
Subsequently, the Defendant’s community corrections sentence was revoked, and upon
revocation, the trial court imposed a new total effective sentence of six years. In this
appeal as of right, the Defendant contends (1) that the trial court erred in imposing
consecutive sentences, and (2) that the trial court erred in not awarding sufficient credit
for time served on community corrections. Following our review, we affirm the trial
court’s imposition of consecutive sentences; however, we remand this case to correct the
judgments to reflect the full measure of the Defendant’s community corrections credit.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
Affirmed; Case Remanded.
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ALAN E. GLENN, JJ., joined.
Stephen Bush, District Public Defender (on appeal); Phyllis Aluko (on appeal), and Amy
Mayne (at trial), Assistant District Public Defenders, for the appellant, Mark Alan Hager.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree and
Alanda Dwyer, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
The Defendant was charged in case number W1201322 with burglary of a motor
vehicle and in case number W1201124 with theft of property valued at $1,000 or more.
On November 19, 2012, the Defendant entered a guilty plea agreement as a Range I,
standard offender, which provided for a one-year sentence at thirty percent in case
number W1201322 and a three-year sentence at thirty percent in case number W1201124,
to be served concurrently. The trial court had reservations about placing him on an
alternative sentence and warned the Defendant that he would not be given a second
chance. The judge allowed the Defendant to serve the effective three-year sentence on
community corrections.
On November 20, 2014, the trial court held a revocation hearing. The Defendant
admitted that he had violated the terms of his community corrections sentence. The court
found that the Defendant had received an additional criminal conviction in Arkansas.
The trial court noted that the Defendant had a lengthy criminal history and had previously
suggested alternatives to incarceration, such as probation. Acknowledging that these
alternatives had been unsuccessful, the trial court stated, “I’ve given you opportunities
and you have violated that trust.”
The trial court revoked the Defendant’s community corrections sentence and
increased the sentence in case number W1201322 from one year to two years and the
sentence in case number W1201124 from three years to four years. The trial court then
ordered the sentences to be served consecutively with each other. In support of the
imposition of consecutive sentences, the trial court held:
[B]ased upon [the Defendant’s] extensive record, it would appear to the
[c]ourt that [the Defendant is] a professional criminal, a person who has
made [his] lifestyle of committing crimes over a thirty year period of time
and in my opinion the sentences should be served consecutively.
The court continued, “[The Defendant’s] [r]ecord of criminal activity is extensive and for
those reasons, I believe the sentence imposed should be consecutive.” The record
indicates the Defendant has fifteen misdemeanor convictions for crimes such as driving
with a suspended license, theft, criminal trespass, and driving while under the influence
(DUI). The defendant has ten felony convictions for crimes such as aggravated burglary,
theft of property valued at $1,000 or more but less than $10,000, and felony DUI.
Additionally, the trial court ordered the Defendant be awarded time served on community
corrections.
The Defendant filed a timely notice of appeal from the criminal court’s order.
This matter is before this court on appeal as of right.
ANALYSIS
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I. Consecutive Sentencing
The Defendant first challenges the trial court’s imposition of consecutive
sentences. The Defendant argues this case should be governed by the Tennessee
Supreme Court’s reasoning in State v. Patty, 922 S.W.2d 102, 104 (Tenn. 1995), which
held the trial judge was not permitted to resentence the defendant within a higher range
than that of the original sentence. The court reasoned, “Once accepted, at least as to the
range, to permit a later enhancement beyond the original range violates fundamental
concepts of justice.” Id. at 104. Based upon the reasoning of this case, the Defendant
argues that the order to serve consecutive sentences violates fundamental concepts of
justice. The Defendant also contends that the trial court erred by imposing consecutive
sentences following the revocation of community corrections, when the original plea
agreement provided for concurrent sentences. The State responds that the Defendant’s
claim is meritless because it is within the trial court’s discretion to impose consecutive
sentences as long as the sentence is within the range prescribed by statute.
With respect to the Defendant’s argument that the reasoning of Patty should be
applied to his case, we note that Patty addresses concurrent sentences, one of which was
outside of the original range. However, State v. Samuels, 44 S.W.3d 489, 491 (Tenn.
2001) controls this case. In Samuels, our supreme court upheld a trial court’s order of
consecutive sentences upon a revocation of community corrections, despite the fact that
the plea agreement provided for concurrent sentences. The court held that a trial court
had discretion to order a consecutive sentence where the defendant did not have one
previously, so long as the new and longer sentence was within the range pursuant to
Tennessee Code Annotated section 40-36-106(e)(4). Id. at 496. Upon revocation of
community corrections, a trial court may resentence a defendant “for any period of time
up to the maximum sentence provided for the offense committed.” Tenn. Code Ann. §
40-36-106(e)(4). Thus, imposition of consecutive sentences following revocation is
permitted so long as the new sentence is within the statutory range. See id.
Additionally, the Defendant argues that the trial court improperly found him to be
a professional criminal who knowingly devoted his life to criminal acts as a major source
of livelihood. See Tenn. Code Ann. § 40-35-115(b)(1). The State responds that the trial
court did not err by imposing consecutive sentences because the Defendant had a lengthy
criminal record and the sentence imposed was within the range prescribed by statute.
When reviewing a trial court's imposition of consecutive sentences, “the
presumption of reasonableness applies,” and this court gives “deference to the trial court's
exercise of its discretionary authority to impose consecutive sentences if it has provided
reasons on the record establishing at least one of the seven grounds listed in Tennessee
Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851, 861 (Tenn.
2013). “Any one of [the] grounds [listed in section 40-35-115(b)] is a sufficient basis for
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the imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d
735 (Tenn. 2013)).
One such criterion by which a trial court may order sentences to run consecutively
is if the trial court finds by a preponderance of the evidence that the “defendant is an
offender whose record of criminal activity is extensive.” Tenn. Code Ann. § 40–35–
115(b). Here, the trial court listed one of the seven grounds as its reason for ordering
consecutive sentences.1 At the revocation hearing, the trial court emphasized that the
Defendant had a lengthy criminal history. The record shows the Defendant has fifteen
misdemeanor convictions and ten felony convictions. Additionally, the trial court found
that the Defendant had been given many opportunities other than incarceration, and all of
these failed. Therefore, we conclude the trial court did not abuse its discretion in
imposing consecutive sentences.
II. Credit for Time Served on Community Corrections
Both the Defendant and the State are in agreement that the trial court erred in not
awarding the Defendant sufficient time served in the community corrections program.
The trial court judge acknowledged that the Defendant was entitled to nine and one-half
months of “street credit”; however, the judgment forms do not reflect the entry of any
credit for the Defendant’s time spent on community correction. The Defendant and the
State argue this amount is incorrect. They argue that the Defendant is entitled to eleven
months and nineteen days of credit for the time spent in community corrections. We are
unable to determine the correct amount because the record does not include the petition to
revoke the Defendant’s community corrections sentence.
We agree that the trial court erred in not awarding the Defendant sufficient credit for
time served in the community corrections program. Tennessee Code Annotated section
40-36-106(e)(3)(B) requires an offender to receive credit “for actual time served in the
community-based alternative program.” In reference to this statute, our supreme court
has held that time served “commences on the date a defendant is ordered to serve his
sentence on community corrections, and ceases on the date a petition to revoke the
sentence is filed.” State v. McNack, 356 S.W.3d 906, 911 (Tenn. 2011) (quoting State v.
Timothy Wakefield, No. W2003-00892-CCA-R3-CD, 2003 WL 22848965, at *1 (Tenn.
Crim. App. Nov. 25, 2003)). Thus, we remand this case to the trial court for a
determination of the correct amount of the Defendant’s community corrections credit and
entry of corrected judgments reflecting that amount.
1
Because only one of the grounds listed in section 40-35-115(b) is needed to justify consecutive
sentencing, we need not determine whether the trial court properly concluded that the Defendant was a
professional criminal who knowingly devoted his life to criminal acts as a major source of livelihood.
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Additionally, the Defendant’s plea agreement provided he would be sentenced as a
Range I, standard offender. However, the judgment forms erroneously list the Defendant
as a Range III, career offender. As such, we also remand the judgments for correction of
this clerical error.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the trial court’s
imposition of consecutive sentences is affirmed. However, we remand this case to the
trial court for a determination of the correct amount of the Defendant’s community
corrections credit and entry of corrected judgments reflecting that amount and the
Defendant’s status as a Range I, standard offender.
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D. KELLY THOMAS, JR., JUDGE
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