State v. Smith, a.k.a Maxwell ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9708-CR-00366
September 22, 1998
Appellee, * KNOX COUNTY
VS. * Hon. Mary Beth Leibowitz, Judge
Cecil Crowson, Jr.
JAMES SMITH, a.k.a. * (Revocation of Community Corrections)
Appe llate Court C lerk
JAMES E. MAXWELL,
*
Appellant.
*
For Appellant: For Appellee:
Mark E. Stephens John Knox Walkup
District Public Defender Attorney General & Reporter
6th Judicial District
Georgia Blythe Felner
Paula R. Voss Assistant Attorney General
Julia Auer Criminal Justice Division
Assistant Public Defenders 450 James Robertson Parkway
1209 Euclid Avenue Nashville, TN 37243-0493
Knoxville, TN 37921
Randall Nichols
District Attorney General
and
Leon Franks
Assistant District Attorney General
400 Main Avenue
Knoxville, TN 37902
OPINION FILED:_____________________
AFFIRMED AS MODIFIED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, James Smith, a.k.a. James E. Maxwell, appeals the
trial court's revocation of his community corrections sentence. The following issues
have been presented for review:
(I) whether the trial court should have held a hearing
before the revocation of his suspended sentence and
imposition of greater sentences; and
(II) whether the judgment forms and orders reflect
illegal sentences.
The judgment of revocation is affirmed; the sentences are modified as provided
herein.
This appeal involves sentencing for three separate convictions. On
June 28, 1991, in case number 35815, the defendant was given a Range I, two-year
sentence to be served on probation for the attempted sale of a schedule II controlled
substance, a Class D felony. On September 2, 1992, probation on the two-year
term was revoked and the defendant was ordered to serve the full sentence in
custody, less credit for service of 105 days in jail. On December 22, 1992, the
Department of Correction placed the defendant on determinate probation pursuant
to Tenn. Code Ann. § 40-35-501.
While out on determinate probation for the two-year sentence, the
defendant incurred additional charges. On December 8, 1993, in case number
47804, he received a Range I, eight-year sentence in TDOC for possession of
cocaine with intent to sell, a Class B felony; the sentence was suspended and he
was placed on community corrections for eleven years. On the same date, in case
number 49817, he received a Range I, three-year sentence for sale of less than
one-half gram cocaine, a Class C felony; the sentence was suspended and he was
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placed on community corrections for eleven years. The three year sentence was to
be served consecutively to the eight-year sentence.1
Revocation warrants were eventually filed for all offenses. On July 21,
1995, the trial court held a brief hearing; no proof was presented. Apparently, the
defendant conceded that the terms of the alternative sentences had been violated.
The state and the defense appear to have agreed that the trial judge should revoke
the alternative sentences and then increase the term, as long as the defendant was
not ordered to serve any time in custody. The trial court asked the defendant, "You
... understand I intend to increase your sentence significantly now; so that, if you do
fail, you are going to spend some time in the penitentiary." The defendant
responded, "A whole lot, yes." The trial court then ruled from the bench as follows:
Here is what I have got. I have an eight-year
sentence and a B felony. So that can be increased to up
to twelve years as a range I offender and a three-year
sentence in 49817, which is a C felony and increase that
to six years, for a total sentence of eighteen years.
Now, I do not know how to deal with this pending
determinate probation, because that was not figured in
when we originally put Mr. Maxwell on C.A.P.P. in these
cases. ... I am going to put him on C.A.P.P. for two
1
The judgments of conviction entered in the defendant's latter two cases
reflect conflicting sentences. Read literally, the judgments reflect that the trial court
imposed sentences to the Department of Correction, suspended those sentences,
and placed the defendant in the community corrections program for a term of years.
This looks as if the trial court gave the defendant probation and made supervision
under the community corrections program a condition of that probation. See Tenn.
Code Ann. § 40-36-106(f). If that were so, the trial court would not have retained
the power to change the length of the sentences as originally imposed.
However, the record on appeal, including the judgments of conviction, reflect that
the trial court intended to impose community corrections sentences pursuant to
Tenn. Code Ann. § 40-36-106(e)(1), instead of making the program a condition of
probation pursuant to Tenn. Code Ann. § 40-36-106(f). With a community
corrections sentence, though, the trial court does not also impose a term of years for
service in the penitentiary or local jail that is then suspended. Any sentence so
imposed, including its length, is essentially a nullity and recording it in the judgment
of conviction is superfluous. The length of time the defendant serves in the
community corrections program is the only sentence to be imposed.
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years in this case, also, and run that C.A.P.P. time
concurrent.... [H]is effective C.A.P.P. sentences is
eighteen years.
The court also entered a written order on that date:
[I]n case no. 35815, the defendant's State Probation ... is
... revoked; and the defendant placed on CAPP for
eighteen (18) years to expire July 21, 2013. In case no.
47804, the defendant's CAPP revoked, sentence
increased from eight (8) years to twelve (12) years,
however, the defendant is placed back on CAPP for
eighteen (18) years to expire July 21, 2013. In case no.
49817, the defendant's CAPP revoked, sentence
increased from three (3) years to six (6) years, however,
the defendant is placed back on CAPP for eighteen (18)
years to expire July 21, 2013.
Sometime later, on January 6, 1997, another revocation warrant was
filed. At the revocation hearing, Tamela Wheeler, who supervised the defendant on
C.A.P.P., testified that the defendant had absconded and that she had no contact
from May 1996 until January 1997.
The trial court concluded that the defendant had violated the terms of
his community corrections sentence. Rather than ruling at the conclusion of the
hearing, however, the trial judge opted to review the transcript of the 1995 hearing
to make certain that the defendant had understood his sentence was to be
increased to an effective term of eighteen years. At a second hearing one month
later, defense counsel argued that at the 1995 hearing, where the sentences were
increased, the defendant was not advised of his right to insist on a sentencing
hearing and the right to appeal. The trial judge ruled as follows:
It is clear ... to this Court that Mr. Maxwell violated the
terms of his C.A.P.P. ... There is no question in my mind
that based upon this transcript and my memory ... that
Mr. Maxwell understood that I intended to revoke him.
But he took the eighteen year sentence because he
wanted to get out. ... It may not be equitable, but this
isn't a court of equity. And it may not be fair, and
perhaps we have not held the hearings that the law
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requires of us. ... However, I think that it's pretty clear
that there was a hearing, that there was an agreement,
that Mr. Maxwell understood the agreement, that Mr.
Maxwell understood because he had already been
revoked and sent to the penitentiary and put out on
determinate probation in one of the cases, what he had
to do and he didn't do it. ... So I don't think I really have
a choice but to revoke Mr. Maxwell. And I don't think I
have a choice right now but to revoke him at the eighteen
year sentence that he agreed to.
On that same day, the trial court entered three separate orders
revoking community corrections for each offense and ordering judgment to be
executed. The order on the two-year sentence provides as follows:
[T]he defendant's CAPP is ... revoked and the original
judgment of this Court on June 28, 1991 is put into full
force and effect. Defendant ... is to receive ... a
combined total credit of eight hundred and eight (808)
days, sentence to begin January 1, 1995.
The order on the twelve-year sentence, which originally was an eight-year sentence,
provides as follows:
CAPP is hereby revoked and the original judgment of this
Court on December 8, 1993 is put into full force and
effect, along with the revocation of July 21, 1995
increasing the defendant's sentence from eight (8) to
twelve (12) years.
The order on the six-year sentence, which was originally a three-year term, provides
as follows:
CAPP is hereby revoked and the original judgment of this
court on December 8, 1993 is put into full force and
effect, along with the revocation of July 21, 1995,
increasing the defendant's sentence from three (3) to six
(6) years.
Trial courts have authority to revoke a community corrections sentence
based upon the conduct of the defendant. Tenn. Code Ann. § 40-36-106(e)(3). A
trial judge's decision to revoke a defendant's release on community corrections
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should not be disturbed unless there is an abuse of discretion. State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). In order to find an abuse of discretion, it must appear
that the record contains "no substantial evidence to support the conclusion of the
trial judge that a violation of the conditions ... occurred." Id.
The same principles applicable to a probation revocation are relevant
to the revocation of community corrections. Id. at 83. The trial judge is not required
to find that a violation of the terms of probation has occurred beyond a reasonable
doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). Rather, the
existence of a violation of probation need only be supported by a preponderance of
the evidence. Tenn. Code Ann. § 40-35-311(d).
The defendant concedes he violated the terms of his community corrections sentence
and does not contest the revocation. Instead, he complains that the trial court erred by increasing his
sentence without a hearing and that the orders reflect illegal sentences.
I
On July 21, 1995, the trial court increased the eight-year sentence to twelve years and
the three-year sentence to six years. The trial court did so without having received any proof and
without making reference to any of the sentencing principles of the 1989 Act. The defendant argues
that because the trial judge failed to conduct an appropriate hearing before increasing the sentences,
the case should be remanded "for further proceedings which conformwith the [defendant's] rights to
due process of law."
The tim for appealing the order entered on July 21, 1995, has long since passed.
e
The defendant had thirty days to file a notice of appeal. Tenn. R. App. P. 4(a). The tim filing may
ely
be waived "in the interest of justice." Id. Under the circumstances, however, w are not inclined to do
e
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so. The defendant agreed to the increase in sentence. At the hearing, defense counsel stated to the
trial court:
I think that you were going to add additional time to his sentence.
That was one of the conditions of releasing him, and that is w M
hat r.
Maxwell wants to do. So I amgoing to ask that you do that.
Clearly, the defendant agreed to the additional time, in exchange for not being placed in custody after
the revocation. It is only because he now has to actually serve the agreed upon sentence that he
complains.
When a community corrections sentence is revoked, the trial court m increase the
ay
sentence. Tenn. Code Ann. § 40-36-106(e)(4); State v. Griffith, 787 S.W.2d 340 (Tenn. 1990). The
increases fromeight to twelve years and from three to six years are both within the statutorily
permissible range. Generally, before the trial court increases the sentence, a sentencing hearing
should be held. State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996). Nonetheless, it is
apparent the sentences were the product of negotiations. There are no circumstances here which
would warrant the review of a judgment which becam final three years ago.
e
II
The defendant next complains that he is either being forced to serve an illegal
sentence or that the written orders contain clerical errors. In our view, the written orders contained in
the record do contain errors which should be corrected.
The defendant's first complaint concerns the two-year sentence he received in 1991.
He complains that "nowhis sentence appears to be eighteen years in the state penitentiary." The
written order entered on July 21, 1995, does provide that "the defendant is placed ... on CAPP for
eighteen (18) years ...." The written order entered on March 20, 1997, however, provides "the original
judgm of this Court on June 28, 1991 is put into full force and effect." Also, the transcript of the
ent
hearing held in 1995 provides that he was to serve two years on C.A.P.P. concurrent with his other
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sentences. The state agrees "that the defendant's two (2) year sentence in case number 35815 was
not increased."
The trial court is without authority to order an eighteen-year community corrections
sentence for a Range I offender convicted of a Class D felony. Tenn. Code Ann. § 40-36-106(e)(2);
Tenn. Code Ann. § 40-35-112. When imposing a community corrections sentence, "the court shall
possess the power to set the duration of the sentence ... at any period of time up to the maximum
sentence within the appropriate sentence range." Tenn. Code Ann. § 40-36-106(e)(2) (emphasis
added). Thus, the order entered on July 21, 1995, is modified to reflect a concurrent two-year termon
C.A.P.P. for case num 35815. The order entered on March 20, 1997, is also m
ber odified to reflect a
concurrent two-year term on C.A.P.P. for case number 35815.
The defendant also complains that the judgment forms in cases 47804 and 49817 are
erroneous. He points out that the original judgment forms provided for sentences of eight years and
three years, to be served consecutively. Yet the original judgment forms also provide for an eleven-
year term on C.A.P.P. for each sentence. He claims the judgment form "appear[] to require himto
s
serve 22 years in the CAPP program and that this error w carried over to the orders entered on July
" as
21, 1995 and March 20, 1997. The state agrees that the written orders should be modified. Because
the trial court is without authority to order an eighteen-year community corrections sentence for either
of the Range I Class B or C felonies, we agree the orders should be modified to reflect a sentence of
twelve years in case number 47804 and six years in case num 49817. See Tenn. Code Ann. § 40-
ber
36-106(e)(2). Thus, the orders are modified to reflect that the six-year term is to be served
consecutively to the twelve-year term.
Accordingly, the judgm of the trial court is affirmed. The sentences are modified as
ent
provided in this opinion. See Tenn. R. Crim. P. 36.
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__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
______________________________
Joseph M. Tipton, Judge
_______________________________
David H. Welles, Judge
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