State of Tennessee v. Deandre M. Broaden ( 2002 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 6, 2002
STATE OF TENNESSEE v. DEANDRE M. BROADEN
Direct Appeal from the Criminal Court for Shelby County
Nos. 99-06360, 99-06361 James C. Beasley, Jr., Judge
No. W2001-03100-CCA-R3-CD - Filed December 20, 2002
Defendant, Deandre M. Broaden, was indicted by the Shelby County Grand Jury for possession of
marijuana and for possession of cocaine with intent to sell. Defendant pled guilty to both offenses,
and the trial court sentenced him to four years probated under the Community Corrections Act of
1985. Defendant violated the conditions of his sentence, and the trial court resentenced him to five
years confinement, crediting him four months for time served in community corrections until the date
of his first violation. On appeal, Defendant argues that he should have received full credit for the
amount of time served up until the filing of the petition seeking revocation of his community
corrections sentence. We agree. We affirm the judgment of the trial court with respect to the
revocation of Defendant’s community corrections sentence and the new sentence of five years, but
reverse the trial court’s order insofar as it provides only four months of credit. We remand this case
for entry of an amended judgment consistent with this opinion.
Tenn. R. App. P. 3, Appeal as of Right;
Judgment of the Criminal Court Affirmed in part and Modified in part and Remanded
THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, and JOHN
EVERETT WILLIAMS, JJ., joined.
AC Wharton, Jr., Shelby County Public Defender; Garland Erguden, Assistant Public Defender; and
Robert H. Gowan, Assistant Public Defender, Memphis, Tennessee, for the appellant, Deandre M.
Broaden.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David Sharpiro, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
On October 4, 1999, Defendant pled guilty to possession of marijuana, a Class A
misdemeanor, and possession of cocaine with intent to sell, a Class B felony. Defendant petitioned
the trial court to sentence him, under the Tennessee Community Corrections Act of 1985, to four
years for his felony conviction and eleven months and twenty-nine days for his misdemeanor
conviction, to be served concurrently. On November 4, 1999, the trial court sentenced Defendant
in accordance with his request and ordered that Defendant serve his sentence in the community
corrections program, instead of in incarceration.
On November 8, 2000, the community corrections officer filed a Petition for Revocation of
Sentence, alleging that Defendant violated the conditions of his sentence, which was apparently not
served on Defendant until October, 2001. On December 12, 2001, a revocation and sentencing
hearing was held, at which the assistant program director for Correctional Alternatives testified that
Defendant committed the following violations: On July 28, 2000, Defendant was arrested for charges
of forgery and possession of cocaine with intent to sell; Defendant tested positive for morphine use
during a random drug screening on April 17, 2000; Defendant forged the number of community
service hours he performed in January and February 2000; and Defendant was one month behind in
the payment of required supervision fees and had several curfew violations. At the sentencing
hearing, Defendant testified that he had been shot on September 12, 2000, and after leaving the
hospital, he took some of his mother’s pills for back pain. Defendant also signed a statement of
admission to having taken his mother’s pain pills. The trial court noted, however, that the drug test
was administered in April, 2000, and Defendant was shot and hospitalized the following September.
At the conclusion of the hearing, the trial court reviewed Defendant’s presentence report,
noting an arrest for possession of drug paraphernalia in 1992, drug convictions in 1993 and 1997,
for which Defendant was given probation, a driving conviction in 1996, a vandalism charge and a
disorderly conduct conviction in 1998, and separate drug and weapon offenses convictions in 1999.
Finding that Defendant has an extensive history of criminal behavior and convictions in addition to
those for which Defendant was sentenced, an enhancement factor under Tenn. Code Ann. § 40-35-
114(1), the trial court revoked Defendant’s probation and increased Defendant’s sentence to five (5)
years confinement, as a Range I standard offender, pursuant to its authority under Tenn. Code Ann.
§ 40-36-106(e)(4) (1997). The trial court denied Defendant’s request for credit for time served from
November 3, 1999, the effective date of his original sentence, until November 8, 2000, the date the
revocation petition was filed. The court gave Defendant four months credit for time served while
on community corrections, explaining that the first violation occurred in April, 2000. We note, at
the outset, that even if the trial court had been correct in crediting Defendant for time served up until
his first violation in April, he would be entitled to at least five months credit rather than four.
A trial court may, in its discretion, revoke a community corrections sentence upon finding
by a preponderance of the evidence that the defendant has violated the conditions of his sentence.
See Tenn. Code Ann. §§ 40-36-106(e)(3)(B), -311 (1997); see also State v. Harkins, 811 S.W.2d 79,
82 (Tenn. 1991). Upon revocation, the trial court may impose a new sentence, to be served in
confinement, for a term longer than the original sentence. Tenn. Code Ann. § 40-36-106(e)(4)
(1997); Harkins, 811 S.W.2d at 82. On appeal, the trial court’s order, insofar as it revokes
Defendant’s community corrections sentence, is subject to reversal only upon a showing of abuse
of discretion. Harkins, 811 S.W.2d at 82.
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Defendant does not contest the trial court’s revocation of his community corrections
sentence, nor does he contest the increase in his sentence. Defendant argues only that he should
receive full credit for time served in community corrections pursuant to Tennessee Code Annotated
§ 40-36-106. We agree. The statute provides:
The court shall also possess the power to revoke the sentence imposed at any time
due to the conduct of the defendant..., 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(e)(4) (1997) (emphasis added).
The granting of credit for time served is mandated by statute and is not discretionary. See
State v. Victor Lofton, 1997 Tenn. Crim. App. LEXIS 985, No. 02C01-9611-CC-00427 (Tenn. Crim.
App. at Jackson, October 2, 1997), no app. to appeal filed. In its brief, the State concedes that
Defendant should have been credited for the full amount of time served. The trial court ordered
Defendant to serve his community corrections sentence, effective November 3, 1999. The petition
for the revocation of his sentence was filed November 8, 2000. Defendant should receive 372 days
credit for time served in community corrections.
CONCLUSION
We conclude that the trial court properly exercised its authority to resentence Defendant
under Tenn. Code Ann. § 40-36-106(e)(4) (1997). We therefore affirm the trial court’s revocation
of Defendant’s community corrections sentence and imposition of a five-year sentence. We
conclude, however, that Defendant is entitled to full credit for time served in community corrections,
which includes time served from the date of his original sentence until the filing of the revocation
petition. This case must be remanded for entry of a modified judgment reflecting 372 days credit
for time spent in the community corrections program. Therefore, the case is remanded for immediate
entry of a modified judgment consistent with this opinion.
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THOMAS T. WOODALL, JUDGE
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