State v. Jagath Parachuri ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JUNE 1998 SESSION
STATE OF TENNESSEE, )
) NO. 01C01-9706-CC-00233
Appellee, )
) WILLIAMSON COUNTY
VS. )
) HON. DONALD P. HARRIS,
JAGATH N. PARACHURI, ) JUDGE
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS L. WHITESIDE JOHN KNOX WALKUP
172 Second Ave North Attorney General and Reporter
Suite 214
Nashville, TN 37201-1908 DEBORAH A. TULLIS
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR.
District Attorney General
Williamson County Courthouse
Suite G-6
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Jagath N. Parachuri, appeals the order of the Williamson County
Circuit Court revoking his probation. Since we conclude the court improperly modified
the original sentences, we REVERSE AND REMAND the case to the Williamson
County Circuit Court for entry of proper judgments and any further proceedings
consistent with this opinion.
I.
The record prepared for appeal in this case falls seriously short of the
requirements of Tenn. R. App. P. 24(a). The probation revocation hearing focused on the
dates of the defendant’s prior arrests and convictions. Although various judgments were
made exhibits, these judgments were not included in the record on appeal. Ordinarily we
would affirm based upon an inadequate record, or order the record to be supplemented.
We believe, however, that sufficient information can be gleaned from the trial court’s
findings to determine that a remand is in order.
The defendant appears to have been arrested for burglary in Davidson County on
July 27, 1994, and released on bail August 7, 1994. In the next several months, while on
bond for the Davidson County burglary charge, the defendant apparently also committed
offenses in Williamson County which led to indictments for five (5) counts of forgery
and one (1) count of failure to appear. The defendant was also charged in Davidson
County with aggravated burglary. We are only able to determine that this offense was
committed sometime prior to November 22, 1994.
The defendant was convicted and sentenced for the Williamson County offenses
first. Williamson County, therefore, became the first sentencing court. On May 15,
1995, the defendant was sentenced in Williamson County to concurrent two (2) year
terms for the forgery charges consecutive to a one (1) year term for the failure to appear,
2
yielding an effective three-year sentence. The sentences were suspended, and the
defendant was placed on probation.
Shortly after the Williamson County sentencing, the defendant was sentenced in
Davidson County to Community Corrections for consecutive terms of two (2) years for
the burglary charge and three (3) years for aggravated burglary. Davidson County,
therefore, became the second sentencing court. The defendant alleges that the Davidson
County sentences ran concurrent with the Williamson County sentences, and the
Davidson County court was aware of his Williamson County offenses at the time of
sentencing; however, we are unable to verify this allegation absent a proper record.
In May 1996, while on probation in Williamson County and Community
Corrections in Davidson County, the defendant pled guilty to driving under the influence
of an intoxicant in Davidson County and was sentenced. As a result, the defendant’s
Community Corrections sentences in Davidson County were revoked, and he was
remanded to serve his effective five-year Davidson County sentences. There is nothing in
the record to indicate whether the Davidson County court made any reference to the
Williamson County sentences..
On March 24, 1997, the Williamson County court found the defendant violated
the terms of his probation by the being convicted of the DUI in Davidson County. The
Williamson County court revoked the defendant’s probation. For purposes of the
revocation, the Williamson County court found it was the second sentencing court since
Davidson County had already revoked Community Corrections and ordered confinement.
The Williamson County court ordered the Williamson County sentences served
consecutive to the Davidson County burglary conviction because it found the defendant
had been released on bail for that Davidson County offense when the Williamson County
offenses were originally committed.
The defendant contests the Williamson County court’s authority to alter the
3
consecutive/concurrent nature of his sentences. We agree with the defendant’s
contentions.
II.
Consecutive sentencing is addressed in Tenn. R. Crim. P. 32(c). The Williamson
County court at the revocation hearing found the defendant committed the original
offenses in Wiliamson County after he had been released on bail in Davidson County for
the burglary charge. The Williamson County court at the revocation hearing found,
therefore, that it was required to order consecutive sentences. Tenn. R. Crim. P. 32(c)(3)
provides:
(3) Mandatory Consecutive Sentences. Where a defendant is convicted of
multiple offenses from one trial or where the defendant has additional
sentences not yet fully served as the result of the convictions in the same
or other court and the law requires consecutive sentences, the sentence
shall be consecutive whether the judgment explicitly so orders or not.
This rule shall apply:
(A) To a sentence for a felony committed while on parole for
a felony;
(B) To a sentence for escape or for a felony committed while
on escape;
(C) To a sentence for a felony where the defendant was
released on bail and the defendant is convicted of both offenses;
and
(D) Any other ground provided by law.
(emphasis added).
The defendant was convicted and sentenced for the Williamson County offenses
first. When the defendant was subsequently sentenced in Davidson County, the trial
court in Davidson County could have noted the Williamson County convictions were the
result of offenses committed there while on bail from Davidson County and ordered the
Davidson County sentences served consecutively to the Williamson County sentences.
Tenn. R. Crim. P. 32(c)(3)(C). The fact that the Davidson County offense was committed
first, yet Davidson County was the second sentencing court, would not prohibit Davidson
4
County from running its sentences consecutive to the Williamson County sentences as
required by Tenn. R. Crim. P. 32(c)(3)(C). See State v. Blanton, 926 S.W.2d 953, 961
(Tenn. Crim. App. 1996).
III.
While it appears the Williamson County court was correct in its determination
that the defendant should be required to serve the Williamson County sentences and the
Davidson County burglary sentence consecutively, the Williamson County court had no
authority to so order. Williamson County was the first sentencing court and, at the time
of the original sentencing in Williamson County, could not and did not order the
Williamson County sentences to run consecutively to a yet to be imposed Davidson
County sentence. Thus, the original sentence imposed by Williamson County was correct
in making no reference to the Davidson County pending cases.
IV.
The options available to a trial court upon revocation of probation are limited by
statute. Tenn. Code Ann. § 40-35-311(d) provides:
If the trial judge should find that the defendant has violated the
conditions of his probation and suspension by a preponderance of the
evidence, the trial judge shall have the right by order duly entered upon the
minutes of his court, to revoke the probation and suspension of sentence
and cause the defendant to commence the execution of judgment as
originally entered, or otherwise in accordance with § 40-35-310; provided,
that in case of such revocation of probation and suspension, the defendant
has the right to appeal.
(emphasis added).
Tenn. Code Ann. § 40-35-310 provides:
The trial judge possess the power, at any time within the maximum
time which was directed and ordered by the court for such suspension,
after proceeding as provided in § 40-35-311, to revoke and annul such
suspension, and in such cases the original judgment so rendered by the
trial judge shall be in full force and effect from the date of the revocation
5
of such suspension, and shall be executed accordingly; provided, that in
any case of revocation of suspension on account of conduct by the
defendant which has resulted in a judgment of conviction against him
during his period of probation, the trial judge may order that the term of
imprisonment imposed by the original judgment be served consecutively
to any sentence which was imposed upon such conviction.
(emphasis added).
Thus, “a trial court that determines that a probation violation has occurred can cause
execution of the original judgment as it was originally entered, see Tenn. Code Ann. §
40-35-310, -311, or can modify the defendant’s conditions of supervision, including
extending the defendant’s probationary period for up to two years. See Tenn. Code Ann.
§ 40-35-308.” State v. Bowling, 958 S.W.2d 362, 363 (Tenn. Crim. App.
1997)(emphasis added).
Under our revocation statutes a trial court does not have the authority to alter the
original sentence to run it consecutive to another sentence except for an offense
committed while on probation. When a trial court finds a defendant violated the terms of
his probation, the trial court has the right to revoke the probation and “cause the
defendant to commence the execution of judgment as originally entered . . .” Tenn. Code
Ann. § 40-35-311(d)(emphasis added). The Williamson County trial court’s only
determination of consecutive sentencing is to the triggering offense upon which the
revocation is based. See Tenn. Code
Ann. § 40-35-310. That determination is discretionary with the trial court under this
statute.
V.
If the Williamson County offenses were committed when the defendant was on
bail for the Davidson County burglary charge, we agree that the Williamson County
sentence and the Davidson County burglary sentence should have run consecutively
6
pursuant to Tenn. R. Crim. P. 32(c)(3)(C). This should have been done by the Davidson
County court at the time it originally sentenced the defendant. However, this cannot be
done by Williamson County upon revocation of probation.
We know not whether the proper facts were made known to the Davidson County
court at the time of the original sentence there or at its revocation hearing. We voice no
opinion as to the propriety of Davidson County amending its sentences as those cases are
not before us on appeal.
VI.
Although not raised by the parties, we note that the revocation order contains
errors as to the consecutive/concurrent nature of the six (6) Williamson County
convictions. The revocation order runs one (1) forgery count concurrent with the failure
to appear and the other four (4) forgery counts consecutive to the other two (2) counts.
This does not appear consistent with the original judgments, nor does it appear to be
consistent with the intentions of the trial court. The confusion appears to have arisen
from improper matching of convictions with docket numbers.
VII.
Upon remand, the trial court shall enter an order simply reinstating the original
sentences without any reference to the Davidson County sentences. Further, there should
be no alteration from the original judgments as to how the six (6) Williamson County
sentences will be served in relation to each other. As we understand those judgments, all
forgery counts run concurrent with each other, but the failure to appear count runs
consecutive for an effective sentence of three (3) years. These sentences also run
concurrent with the triggering Davidson County DUI since the trial court did not specify
a consecutive sentence.
7
CONCLUSION
This case is REVERSED AND REMANDED for entry of proper judgments and
any further proceedings consistent with this opinion.
________________________
JOE G. RILEY, JUDGE
CONCUR:
__________________________
CURWOOD WITT, JUDGE
__________________________
LEE MOORE, SPECIAL JUDGE
8