State of Tennessee v. Kenny Lamont McGee ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 11, 2011
STATE OF TENNESSEE v. KENNY LAMONT MCGEE
Appeal from the Circuit Court for Moore County
No. 1103 & 1146 Robert Crigler, Judge
No. M2010-00978-CCA-R3-CD - Filed April 18, 2011
In January 2009, the Moore County Grand Jury indicted Appellant, Kenny LaMont McGee
for three counts of aggravated sexual battery. Appellant pled guilty to two counts of
attempted aggravated sexual battery. Pursuant to the plea agreement Appellant was ordered
to serve an effective sentence of twelve years on community corrections. In January 2010,
the Moore County Grand Jury indicted Appellant for violation of the Sexual Offender
Registration and Monitoring Act. In February 2010, Appellant’s community corrections
officer filed an affidavit alleging that Appellant had violated the conditions of the community
corrections sentence. Appellant pled guilty to the violation of the Sexual Offender
Registration and Monitoring Act. Following a hearing, the trial court revoked Appellant’s
community corrections sentence and ordered him to serve the twelve-year sentence in
confinement. In addition, the trial court sentenced Appellant to two years and six months for
his violation of the Sexual Offender Registration and Monitoring Act and ordered the
sentence to be served consecutively to the twelve-year sentence. After a thorough review of
the record, we affirm the trial court’s revocation of the community corrections sentence.
However, we vacate the consecutive sentence, order the new sentence to be served
concurrently to the prior imposed sentence and remand for entry of a corrected judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in
Part; Vacated in Part; and Remanded.
J ERRY L. S MITH, J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.
Gregory D. Smith, Clarksville, Tennessee, for the appellant Kenny Lamont McGee.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Mike McCowen, District Attorney General, and Hollyn Eubanks, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
On April 24, 2009, Appellant pled guilty to two counts of attempted aggravated sexual
battery. Pursuant to the plea agreement, Appellant was sentenced to two, consecutive six-
year sentences for an effective sentence of twelve years. He was placed on community
corrections for the length of his sentence.
On January 22, 2010, the Moore County Grand Jury indicted Appellant for violation
of the Sexual Offender Registration and Monitoring Act based upon his failure to report
within seven days before and no later than seven days after his birthday on November 19.
On February 3, 2010, Jason Wallace, Appellant’s community corrections officer, filed an
affidavit alleging that Appellant had violated the terms of his community corrections
sentence by: incurring a new charge, failing to do community service work, failing to pay
supervision fees, failing to obtain a psychosexual evaluation, failing to pay any court costs,
and failing to maintain employment and submit proof of employment.
On February 19, 2010, Appellant pled guilty to a violation of the Sexual Offender
Registration and Monitoring Act. On April 23, 2010, the trial court held a hearing on
Appellant’s community corrections violations and to determine the sentence for the violation
of the Sexual Offender Registration and Monitoring Act following revocation.
Mr. Wallace was the first witness at the hearing. He stated that Appellant had been
reporting regularly. However, he had never presented proof of participating in community
service, proof of payment of supervision fees or court costs, or proof of employment or any
applications for employment. Mr. Wallace also stated that Appellant had not had a
psychosexual evaluation done by a medical professional. He stated that Appellant’s family
paid the fees after the violation allegations were filed with the trial court. Mr. Wallace
testified that it was Appellant’s responsibility to bring proof that he was completing the
conditions of his community corrections sentence.
Appellant also testified at the hearing. He testified that Mr. Wallace never asked him
if he was participating in community service work. He stated that he asked for a time sheet
to record the work and was saving it up until the end of his sentence to turn it in at one time.
Appellant stated that he repeatedly called the doctor to whom he was referred for the
psychosexual evaluation. However, the doctor never returned his call. Appellant admitted
that he had not been paying his fees or his court costs. He also admitted that he received new
criminal charges for violating the Sexual Offender Registration and Monitoring Act.
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At the conclusion of the hearing on the revocation of the community corrections
sentence and the sentencing for the new charges, the trial court revoked Appellant’s
community corrections sentence. The trial court found that Appellant failed to obtain a
psychosexual evaluation, had done some but not the full 100 hours of community service,
failed to pay his fees himself before the warrant or pay his court costs, and “most
significantly, he has pled guilty to another offense . . . .” The trial court ordered him to serve
the full twelve-year sentence in confinement. The trial court also sentenced Appellant to two
years and six months to run consecutively to his previously imposed twelve-year sentence.
Appellant filed a timely notice of appeal.
ANALYSIS
On appeal, Appellant argues that the trial court erred in revoking his community
corrections sentence and ordering him to serve his sentence in confinement and in ordering
his new two-and-a-half-year sentence to be served consecutively to twelve-year sentence.
Community Corrections
The Community Corrections Act of 1985 was designed to provide an alternative
means of punishment for “selected, nonviolent felony offenders in front-end
community-based alternatives to incarceration.” T.C.A. § 40-36-103. The community
corrections sentence provides a desired degree of flexibility that may be both beneficial to
the defendant and serve legitimate societal aims. State v. Griffith, 787 S.W.2d 340, 342
(Tenn. 1990). Even in cases where the defendant meets the minimum requirements,
however, the defendant is not necessarily entitled to a community corrections sentence as a
matter of law or right. State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
Once a defendant violates the terms of his community corrections program, the trial
court may revoke the sentence and impose a new one:
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 the community-based
alternative to incarceration.
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T.C.A. § 40-36-106(e)(4). In other words, the trial court may conduct a sentencing hearing,
and may impose a greater sentence than the original sentence. Griffith, 787 S.W.2d at 342;
State v. Cooper, 977 S.W.2d 130, 132 (Tenn. Crim. App. 1998).
In State v. Harkins, 811 S.W.2d 79 (Tenn. 1991), our supreme court ruled that a
community corrections sentence is so similar to a probationary sentence as to require the
application of the same standard of review. 811 S.W.2d at 82. Our general law provides that
a trial court may revoke a sentence of probation upon finding by a preponderance of the
evidence that the defendant has violated the conditions of his release. T.C.A. § 40-35-311(e);
Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). On appeal, a revocation will
be upheld absent an abuse of discretion. In order to establish that the trial court has abused
its discretion, the defendant must show that there is no substantial evidence to support the
determination that he violated the terms of his sentence. Harkins, 811 S.W.2d at 82 (citing
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980)). Relief can be granted only when “‘the trial court’s logic and
reasoning was improper when viewed in the light of the factual circumstances and relevant
legal principles involved.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State
v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). It is incumbent upon the trial judge to exercise
a conscientious and intelligent judgment. See State v. Gregory, 946 S.W.2d 829, 832 (Tenn.
Crim. App. 1997).
We conclude that the trial court did not abuse its discretion in revoking Appellant’s
community corrections sentence. Appellant has failed to show that there is a lack of
substantial evidence to support the trial court’s determination that: he incurred a new charge,
for which he pled guilty, failed to complete his community service work, failed to pay
supervision fees, failed to obtain a psychosexual evaluation, and failed to pay any court costs.
There was more than sufficient evidence presented at the revocation hearing to support the
trial court’s conclusions.
Consecutive Sentence
The State concedes that the trial court erred in ordering the two-and-a-half-year
sentence to be served consecutively to the twelve-year sentence. Under Tennessee Code
Annotated section 40-35-115(b)(6), if a defendant is sentenced for an offense that is
committed while the defendant is on probation, that is sufficient reason to order consecutive
sentences. However, in the case at hand, Appellant was on community corrections not
probation. As pointed out by the State, our supreme court has stated, “the legislature did not
intend a community corrections sentence and a probation sentence to be equivalents for
purposes of consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(6).” State v.
Pettus, 986 S.W.2d 540, 544 (Tenn. 1999).
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Furthermore, unlike the Pettus case, there is no other basis upon which to base a
consecutive sentence. Appellant’s only prior offense, other than those for which he was on
community corrections, is for failure to use a seatbelt/child restraint. Clearly, this is not
sufficient to support the imposition of a consecutive sentence for his violation of the Sexual
Offender Registration and Monitoring Act. Therefore, we must vacate the consecutive
sentence, order the sentence to be served concurrently to the previously imposed sentence,
and remand for entry of a corrected judgment.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s revocation of Appellant’s
community corrections sentence, but vacate the consecutive sentence, order the sentence to
be served concurrently to the previously imposed sentence, and remand for entry of a
corrected judgment.
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JERRY L. SMITH, JUDGE
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