Cyril v. Fraser ( 1995 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL SESSION, 1995 September 19, 1995
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9409-CR-00345Clerk
Appellate Court
)
Appellee, )
)
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.
CARL STEVEN MCGILL, ) JUDGE
)
Appellant. ) (Sentencing)
ON APPEAL AS OF RIGHT FROM THE JUDGMENT OF THE
CIRCUIT COURT OF BLOUNT COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
NATALEE STAATS HURLEY CHARLES W. BURSON
Assistant Public Defender Attorney General and Reporter
318 Court Street
Maryville, TN 37804 CYRIL V. FRASER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
PHILIP H. MORTON
Assistant District Attorney General
363 Court Street
Maryville, TN 37804-5906
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of
Appellate Procedure. The Defendant appeals from the trial court's imposition of
consecutive sentences upon resentencing the Defendant after the Defendant violated
the terms of the community corrections sentence previously ordered by the trial court.
We affirm the judgment of the trial court.
On January 26, 1993, the Defendant entered an open-ended plea of guilty to
one count of the Class B misdemeanor of illegal possession of a credit card,1 seven
counts of the Class A misdemeanor of fraudulent use of a credit card,2 and seven
counts of the Class E felony of forgery.3 He was subsequently sentenced to six months
for possession of the credit card, eleven months and twenty-nine days for each of the
convictions for fraudulently using a credit card, and four years on each of the forgery
convictions. All the sentences were ordered to be served concurrently except for one
four-year sentence for forgery, which was ordered to be served consecutively to one
of the Class A misdemeanor convictions, for an effective sentence of five years.
On May 17, 1993, in the same court, the Defendant was convicted on his plea
of guilty to the offense of assault.4 For this Class A misdemeanor conviction, he was
sentenced to eleven months and twenty-nine days, concurrent with his prior sentences.
1
Tenn. Code Ann. § 39-14-118(a).
2
Tenn. Code Ann. § 39-14-118(b).
3
Tenn. Code Ann. § 39-14-114.
4
Tenn. Code Ann. § 39-13-101.
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The Defendant subsequently filed a motion requesting the trial court to amend
his sentence by placing him in the community corrections program. Pursuant to this
motion, the trial court modified the sentence by allowing the Defendant to serve the
sentence in community corrections.
Several months after the Defendant started serving his community corrections
sentence, a warrant was filed alleging that the Defendant had violated the terms and
conditions of his sentence. The warrant alleged, among other things, that the
Defendant failed to attend drug treatment sessions, failed to report for scheduled
appointments, failed to perform the community service work which had been ordered,
failed to pay on his court costs, failed to pay his supervision fee, and failed to report
that he was fired from his job. The trial court found that the Defendant had indeed
violated the terms of his community corrections, and the Defendant takes no real issue
with that finding. It is clear that the Defendant violated the terms of his sentence which
allowed him to be released in the community.
After ruling that the Defendant had violated the terms of his community
corrections sentence, the trial court determined that it would resentence the Defendant.
The court conducted a sentencing hearing. The court sentenced the Defendant to the
same sentence for each of the convictions but ordered that one of the four-year
sentences would run consecutively to the other four-year sentences. The remaining
sentences were to be served concurrently, for an effective sentence of eight years. On
this appeal, the Defendant argues that the trial court does not have the authority, after
revoking a Defendant's community corrections sentence, to restructure the sentences
by ordering them to be served consecutively when they had previously been ordered
to be served concurrently. In the alternative, the Defendant argues that if the court has
such authority, the trial judge erred or abused his discretion in so sentencing the
Defendant.
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The Defendant concedes that the trial court has the authority to resentence a
Defendant who violates the terms of a sentence in community corrections. Specifically,
the statutory authority is as follows:
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 any community-based alternative to
incarceration.
Tenn. Code Ann. § 40-36-106(4).
In State v. Griffith, 787 S.W.2d 340 (Tenn. 1990), our supreme court rejected a
double jeopardy challenge to the constitutionality of the above referenced statute. In
Griffith, Justice Cooper wrote for the court as follows:
The above statutes reflect the policy that the sentencing of a
defendant to a community based alternative to incarceration is not final,
but is designed to provide a flexible alternative that can be of benefit both
to the defendant and to society and allows the court to monitor the
defendant's conduct while in the community corrections program. A
defendant sentenced under the Act has no legitimate expectation of
finality in the severity of the sentence, but is placed on notice by the Act
itself that upon revocation of the sentence due to the conduct of the
defendant, a greater sentence may be imposed. This being so, the
decision to resentence a defendant to a sentence greater than his original
sentence does not subject the defendant to multiple punishments for the
same offense; rather, the practice reflects the need to alter the
defendant's sentence in light of the fact that the court's initial sentence to
a community based alternative to incarceration was not effective. The
defendant not being subjected to multiple punishments for the same
offense, there is no violation of the guarantees against double jeopardy.
Id. at 342.
This court has previously observed that the provisions of the resentencing
statute do not permit the trial court to arbitrarily establish the length of the new sentence
nor may the statute be used by trial courts for the sole and exclusive purpose of
punishing the accused for violating the provisions of a community corrections sentence.
State v. Timothy Lamont Wade, No. 01-C01-9303-CR-00092, Davidson County (Tenn.
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Crim. App., Nashville, filed Nov. 24, 1993). At the resentencing hearing, the trial court
is to conduct the sentencing hearing and approach the sentencing of the Defendant in
the same manner as if the court were sentencing the Defendant initially, except that the
court may consider the fact that community corrections was not successful.
In State v. Patty, ___ S.W.2d ___ (Tenn. 1995), the Tennessee Supreme Court
held that a trial judge imposing a new sentence as a result of community corrections
failure is bound to sentence the Defendant within the same range as the original
sentence. In Patty, the Defendant and the State had initially agreed to the range
applicable to the Defendant. Concerning the State's initial sentencing recommendation,
our Supreme Court stated, "once accepted, at least as to range, to permit a later
enhancement beyond the original range violates fundamental concepts of justice." In
the case sub judice, the Defendant argues that to allow a trial judge, in resentencing
a Defendant as a result of community corrections failure, to order consecutive
sentences and thus increase the overall length of the sentences originally imposed,
would circumvent and vitiate the ruling in Patty.
First of all, we note that in Patty, there is nothing to indicate that the Defendant
possessed the requisite number of prior convictions to qualify for an enhanced range.
Secondly, the Supreme Court pointed out that while Tennessee Code Annotated
section 40-36-106(e)(4) permits the trial court, upon revocation of a community
corrections sentence, to resentence a Defendant to "any period of time up to the
maximum sentence provided by law for that offense," that section should be read in pari
materia with the preceding section, 40-36-106(e)(2) which provides that a community
corrections sentence shall be for "any period of time up to the maximum sentence
within the appropriate sentence range."
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It is obvious that a defendant may not be sentenced for a term of years in excess
of the maximum provided for the offense in the defendant's sentencing range. This
court has held such a sentence to be an illegal sentence and as such a nullity. George
Cheairs v. State, No. 02C01-9304-CC-00070, Fayette County (Tenn. Crim. App.,
Jackson, filed Oct. 26, 1994). But see State v. Terry, 755 S.W.2d 854 (Tenn. Crim.
App. 1988). While the imposition of consecutive sentences by a trial court may be
erroneous because not warranted under the facts and sentencing laws, consecutive
sentences for multiple convictions are not considered illegal sentences.
We conclude that any lawful sentence within the defendant's range which is
justified by the facts, circumstances and sentencing laws and principles may be ordered
by the trial court in resentencing a defendant after a community corrections sentence
has been revoked. We now review the sentence imposed by the trial court.
When there is a challenge to the length, range or manner of service of a
sentence, it is the duty of this court to conduct a de novo review with a presumption that
the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d). This presumption is "conditioned upon the affirmative showing in the record
that the trial court considered the sentencing principles and all relevant facts and
circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing
Commission Comments provide that the burden is on the appellant to show the
impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at the trial
and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
the arguments of counsel relative to sentencing alternatives; (4) the nature and
characteristics of the offense; (5) any mitigating or enhancing factors; (6) any
statements made by the defendant in his own behalf; and (7) the defendant's potential
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for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103 and -210; State
v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987) .
The Defendant's convictions of the fifteen counts of credit card fraud and forgery
arose out of his unauthorized use of a credit card to obtain goods and services in the
amount totaling more than eleven hundred dollars. This activity apparently occurred
during a period of about one week. The Defendant gave the following statement to the
officer who prepared the presentence report, "I wasn't working at the time and I need
money to support my running around and smoking pot."
At the time of resentencing, the Defendant was twenty-six years old. His
educational background is not stated in the presentence report. At the time the
presentence report was prepared, the Defendant had been incarcerated for several
months. His employment prior to that had been primarily as a construction laborer.
The Defendant had several convictions prior to those being addressed herein.
In 1986, he was convicted of possession of stolen property and was sentenced to three
years probation. In 1987, he was convicted of two counts of passing forged checks for
which he received two years probation on each count. Also in 1987, he was convicted
of shoplifting for which he was sentenced to eleven months and twenty-nine days with
all but thirty days suspended. In 1988, he was convicted of escape and sentenced to
one year. In 1990, he was convicted of vandalism and sentenced to eleven months
and twenty-nine days. Also in 1990, he was convicted of two counts of passing
worthless checks for which he was sentenced to eleven months and twenty-nine days
and a concurrent sentence of thirty days.
At the resentencing hearing, the State introduced certified copies of indictments
issued against the Defendant for crimes alleged to have been committed while the
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Defendant was serving his community corrections sentence. These indictments
charged the Defendant with approximately ten counts of forgery, five counts of theft,
three counts of aggravated burglary, one count of especially aggravated robbery, and
one count of attempted first degree murder.
In arriving at the length of the sentences imposed, the trial court did not place
on the record specific findings of fact upon which application of the sentencing
principles was based as required by statute. Tenn. Code Ann. § 40-35-209(c). The
court did not address on the record any enhancement or mitigating factors as required
by statute. Tenn. Code Ann. § 40-35-210. It appears that the trial court believed that
the lengths of the sentences imposed at the Defendant's first sentencing hearing were
a part of the plea agreement. While we do not have in the record a copy of the
transcript from the Defendant's first sentencing hearing, it does appear that the plea of
guilty was open-ended. Because the record does not affirmatively show that the trial
court considered the sentencing principles and all relevant facts and circumstances, our
review of the sentences imposed is de novo without a presumption of correctness.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Even without the presumption of correctness, we cannot conclude that the trial
court erred or abused its discretion in setting the length of each sentence at the
maximum within the range for each offense. The Defendant obviously has a previous
history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range. Tenn. Code Ann. § 40-35-114(1). Prior to the
commission of the offenses herein, the Defendant had at least eight convictions.
Because it is obvious that some of these convictions arose from actions of the
Defendant while he was on probation, it is clear that the Defendant has a previous of
unwillingness to comply with the conditions of a sentence involving release in the
community. Tenn. Code Ann. § 40-35-114(8).
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It is also obvious from this record that this Defendant has evidenced a lack of
potential for rehabilitation or treatment, which is a factor to be considered in
determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5). In addition to
violating the terms of his community based sentence, the Defendant was terminated
from his employment for fighting on the job. In short, the trial court gave the Defendant
a golden opportunity in its initial sentence. The Defendant failed to take advantage of
the opportunity. Measures less restrictive than confinement had been recently applied
to this Defendant. Tenn. Code Ann. § 40-35-103(1)(C).
In announcing the trial court's decision that certain of the sentences were to be
served consecutively the court stated as follows:
And the record shows his lack of employment, also shows that he
refused to follow reasonable recommendations of the Community
Corrections director that would have solved his problems, but he really
didn't want to solve his problems. He wanted to continue living the way
he had been living.
I am going to order, based upon his record of criminal activity and
the fact that for a substantial period of time he has, in the recent and
distant past, depended upon violating the law to support himself, which
in my view says that he has, to a major extent, devoted himself to
violating the law as a source of livelihood.
This record supports a finding that the Defendant has established himself as a
professional criminal who has knowingly devoted himself to criminal acts as a major
source of livelihood. Tenn. Code Ann. § 40-13-115(1). We note again his initial written
statement to the officer who prepared the presentence report, "I wasn't working at the
time and I need money to support my running around and smoking pot." We also
conclude that the record supports the finding that this Defendant is an offender whose
record of criminal activity is extensive. Furthermore, we cannot say that the aggregate
maximum length of the sentences is not reasonably related to the offenses involved.
State v. Taylor, 739 S.W.2d 227,230 (Tenn. 1987).
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Based upon our review of the entire record in this cause and the applicable
sentencing laws and principles, we cannot conclude that the trial judge erred or abused
his discretion in sentencing the Defendant. The judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
JOHN A. TURNBULL, SPECIAL JUDGE
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