State v. Cooper ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1997 April 7, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9601-CC-00031
)
Appellee, )
)
) SEVIER COUNTY
VS. )
) HON . BEN W. HO OPE R, II
RANDALL DEAN COOPER, ) JUDGE
a/k/a TIMOTHY D. COOPER )
Appe llant. ) (Dire ct Ap pea l-Co mm unit y
) Corrections)
FOR THE APPELLANT: FOR THE APPELLEE:
DENNIS C. CAMPBELL JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
Fourth Judicial District
P. O. Box 416 DARIAN B. TAYLOR
Dandridge, TN 37725 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
AL SCHMUTZER, JR.
District Attorney General
G. SCOTT GREEN
Assistant District Attorney
Sevierville, TN 37862
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
The Sevier Coun ty Circuit Court removed Appellant, Randall Dean Cooper,
from particip ation in the Community Corrections program upon finding Appellant
violated certain program conditions. The trial judge resentenced Appellant to ten
years as a Ra nge III offender, from an original sentence of eight years as a
Range III. On appeal, Appellant presents the following issues: 1) whether the trial
court abus ed its d iscretio n by inc reasin g App ellant’s senten ce to ten years in the
Department of Corrections after finding Appe llant viola ted the cond itions o f his
eight year Co mm unity Cor rections s entenc e; 2) whe ther App ellant was denied
a statutory or constitutional right to a sentencing hearing after the trial court found
him in violation of the requirements of the Community Corrections program; and
3) whether the trial cou rt erred by refusing Appellant credit for the time he served
pretrial and for time se rved in the Com munity C orrection s progra m.
After a review of the record we reverse the judgment of the trial court, and
remand this case for a new sentencing hearing.
FACTUAL BACKGROUND
Appellant was indicted for theft over the value of $1,000, fleeing from a law
enforcement officer, driving on a suspended license, and driving under the
influence of an intoxicant. He pled guilty to driving under the influence of an
intoxicant and theft over $1,000. According to the plea agreement, Appellant
agreed to serve eight years as a Range III offender. The parties agreed that the
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sentence shou ld be s erved in the S evier C ounty Jail 1 . After s erving appro ximate ly
six month s, Appe llant reque sted an d receive d placem ent in the C omm unity
Corrections program. At that time, the trial court also ordered the App ellant to
begin paying restitution of $3,500.00 . Five months later, the trial court issued a
warrant for the Appellant based upon allege d violations of the Co mm unity
Correc tions Act.
The trial court conducted a hearing on August 21 and 23, 1995, in which
the court fo und A ppella nt had failed to report to his program counselor. The trial
court removed Appellant from the Community Corrections program and
sentenced Appellant to serve ten years in the Tennessee Department of
Corrections.
INCREASE IN SENTENCE
Appellant concedes that he broke the rules of the Community Corrections
program, but he co ntends the court ab used its discre tion by in creas ing his
original sentence. He argues that a violation fo r failure to report is merely a
technical violation an d is not of the severity of a violent act or an unlawful act. He
maintains that the trial c ourt er red in not following the procedure for sentencing
set out in T .C.A. § 4 0-35-21 0.
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The origin al sen tenc e wa s eigh t years of inc arce ration in a co unty ja il. Bec aus e this origin al
sentence is not the subject of a dispute in this appeal we need not address the propriety of such a
sentence. However, this court is at a loss to understand how, in the absence of a sentence of
split confinement, a sentence of eight years can legally be ordered served in a county jail. See
Tenn. Code Ann. Sec. 40-35-314.
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This court conducts a de novo review of all appeals involving sentencing
issues, according the trial court a presumption of correctness upon a showing
that the trial c ourt follo wed th e statu tory sch eme in imposing the sentence. T.C.A.
§ 40-35-40 1(d).
The statute which gr ants the tria l court’s au thority over such proceedings
as the one sub judice provides that:
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 p eriod of time up to the
maximum sentence provided for the offense committed,
less any time actually served in any community based
alternative to incarcera tion.
T.C.A . § 40-36 -106(e)( 4). In State v. Ervin, 939 S.W.2d 581 (Tenn. Crim. App.
1996), this court stated:
The purpose of this statute is to permit a trial
court to impose a new sentence if the nature,
circumstances, and frequency of the accused’s
violations warrant a different type of alternative
sentence or incarce ration. Ho wever th e provisions of
the statute do no t perm it a trial court to arbitra rily
establish the length of the new sentence. The sta tute
shou ld not be used by the trial courts for the sole and
exclusive purpose of punishing an accused for violating
provisions of a community corrections sentence.
If the trial court imposes a sente nce th at exce eds th e origin al sen tence , it
must conduct a sentencing hearing pursuant to the Tennessee Criminal
Sentencing Reform Act of 19 89. Ervin, 939 S.W.2d at 583. The sentence must
be based on (1) th e evide nce in the rec ord of th e trial, (2) the sentencing hearing,
(3) the presentence report, and (4) the record of prior felony convictions filed by
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the district attorney genera l with the court as required by § 40-35-202(a). T.C.A.
§ 40-35 -210(g); see Ervin, 939 S.W.2d at 584.
In this case, the trial court did not follow the sentencing procedures set
forth in the 1989 Sentencing Act. It did not address the purposes or sentencing
considerations of the Act. Nor did the trial court set forth its findings with respect
to enhan ceme nt and m itigating facto rs. Rathe r, the trial cour t’s decision to
enhan ce the se ntence rested so lely on Ap pellant’s failu re to repo rt.
W e recog nize that there may be valid grounds for the enhancement of
Appe llant’s sentence. The record includes a presentence report that states that
the defendant has a prior criminal record and previous history of unwillingness
to comply with the conditions of a sentence involving release into the comm unity.
See T.C.A. § 40-35-114(a) and (8). However, the record does not contain a
transcript of the proceedings of the guilty plea subm ission and the initial
sentencing hearing.
Given the state of the record , this co urt can not co nduc t the sta tutorily
mandated de novo review of the s enten ce im pose d by the trial court upon
revocation of the comm unity corre ctions se ntence . See Ervin, 939 S.W.2d at
584-85. We therefore reverse and remand this case for a new sente ncing
hearing consistent with the principles outlined in this opinion.
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In view of our disposition of this appeal we pretermit consideration of
Appe llant’s remaining issu es which de al with the proced ure at the hearing which
forms the ba sis of th is app eal.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOSEPH M. TIPTON, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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