State of Tennessee v. Tory Hardison ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2016
STATE OF TENNESSEE v. TORY HARDISON
Direct Appeal from the Circuit Court for Giles County
No. 16333 J. Russell Parkes, Judge
No. M2015-01188-CCA-R3-CD – April 6, 2017
The Appellant, Tory Hardison, pled guilty in the Giles County Circuit Court to the sale of
.5 grams or more of cocaine, the sale of less than .5 grams of cocaine, the possession of .5
grams or more of cocaine with the intent to sell, and the possession of alprazolam with
the intent to sell. Pursuant to the plea agreement, the Appellant received a total effective
sentence of twenty years, which was suspended to community corrections. Thereafter,
the trial court revoked the Appellant’s community corrections sentences for failure to
comply with the terms of release and ordered the Appellant to serve his original sentences
in confinement. On appeal, the Appellant contends that his judgments of conviction are
illegal and cannot be revoked. In the alternative, he contends that the trial court abused
its discretion by revoking his community corrections sentences and ordering him to serve
his sentences in confinement. Upon review, we conclude that the case must be remanded
to the trial court for entry of corrected judgments. The judgments of the trial court are
affirmed in all other respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
Case Remanded
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.
A. Colbrook Baddour, Pulaski, Tennessee, for the Appellant, Tory Hardison.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Brent A. Cooper, District Attorney General; and Jonathan W. Davis, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
The record reflects that the Appellant was charged in case number 16333 with
three counts of the sale of less than .5 grams of cocaine within a drug-free school zone
and with two counts of the sale of .5 grams or more of cocaine within a drug-free school
zone. In case number 16491, the Appellant was charged with possession of .5 grams or
more of cocaine with the intent to sell, possession of marijuana, and possession of
alprazolam.
On October 29, 2013, the Appellant pled guilty pursuant to a written plea
agreement whereby counts one and three of case number 16333 and count two of case
number 16491 were dismissed and the school-zone enhancement was also dismissed.
The written plea agreement provided that the Appellant would plead guilty as follows:
Case No. Count Offense Class Sentence
16333 1 sale less than .5 g. cocaine dismissed
within a drug-free school
zone
16333 2 sale .5 g. or more cocaine B 8 years
felony
16333 3 sale .5 g. or more cocaine dismissed
within a drug-free school
zone
16333 4 sale less than .5 g. cocaine C 4 years consecutive to count 1
felony of case number 16333
16333 5 sale less than .5 g. cocaine dismissed
in a drug-free school zone
16491 1 possession .5 g. or more B 8 years consecutive to count 4
cocaine with intent to sell felony of case number 16333
16491 2 possession of marijuana dismissed
16491 3 possession of alprazolam D 4 years concurrent with count 1
felony of case number 16333
The Appellant was sentenced as a Range I, standard offender to a total effective
sentence of twenty years, which was suspended, and he was placed on community
corrections.
On September 22, 2014, a warrant was issued alleging that the Appellant had
violated the rules of community corrections by not reporting to his case officer.
According to the warrant, the Appellant had not reported since August 18, 2014, despite
having failed to report on a previous occasion and being warned about the consequences
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of the failure to report. The warrant also stated that the Appellant had been arrested twice
for driving on a revoked license and once for failure to appear, that he had failed to report
the new arrests, that he had failed to provide verification he had paid court costs, that he
had failed to provide verification of employment despite warnings to do so, and that he
was $165 in arrears for supervision fees. On November 17, 2014, an amended violation
warrant was issued based upon the Appellant’s arrest in Giles County for possession of
drug paraphernalia, “schedule IV drug violations, simple possession, and schedule II drug
violations (x4).”
Jason Wallace testified at the revocation hearing that he had worked with the
community corrections program for seven years before leaving in August 2013. He
returned in April 2015 and had worked for approximately one and one-half months
before the hearing. Wallace acknowledged that he had never met the Appellant. He
explained that the individual who had supervised the Appellant was no longer working
with the program. Wallace was familiar with the records related to the Appellant.
Wallace said that the Appellant’s community corrections records revealed that he
was convicted on October 29, 2013. Wallace said that generally every offender was
advised of the rules of alternative sentencing when he began serving his sentence and that
the offender signed a form acknowledging he had been advised of the rules. While on
probation, an offender usually was required to report once a month; on community
corrections, however, an offender had to report once or twice a week. The Appellant
missed several meetings, and he received verbal and written warnings about his failure to
report. At some point, the Appellant was considered to be “an absconder.” The
Appellant’s last reporting date was August 18, 2014. Wallace said that the Appellant
owed $165 in community corrections supervision fees and failed to provide proof that he
had paid his court costs and fees. Despite receiving warnings, the Appellant failed to
provide proof of employment. Additionally, the Appellant acquired new criminal
charges and had failed to report the new charges to his case officer.
On cross-examination, Wallace stated that according to the records, the Appellant
was arrested on new charges on July 1, 2014; July 26, 2014; and August 6, 2014.
Wallace acknowledged that an offender could not report to his case officer while in jail.
Wallace said an offender was required to pay a $15 fee each month he was under
community corrections supervision. Wallace could not find a receipt indicating the
Appellant had ever paid the monthly fee or any court costs. The Appellant’s file
contained a letter from the account manager for Magneti Marelli that stated the Appellant
was working in a “temp-to-hire position” and that he had been assigned to the company
by Staffmark. The letter was dated February 28, 2013, which was prior to the
Appellant’s being placed on community corrections. The file also contained a check stub
from Staffmark for work performed from February 17 to February 23, 2014, which
indicated the year on the letter was incorrect.
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Wallace said that an offender who accrued a new charge was supposed to come to
the office or call to advise his case officer of the new charge. The case officer was
supposed to then put a note in the offender’s file about the new charge. Wallace said that
the Appellant’s case officer “had a form that he used that not everybody in [the] offices
uses.” Wallace acknowledged that the Appellant’s file contained several of the forms,
that Wallace had not examined each of the forms, and that he did not know whether any
of the forms “indicate[d] any information . . . about these new charges.” Upon review,
Wallace discovered a form which noted that on July 14, 2014, the Appellant told his case
officer that he had been “pulled over” by law enforcement. Wallace said the notation
may have referred to the Appellant’s July 1, 2014 arrest for driving on a revoked license.
Wallace said that the Appellant’s file reflected that he was booked into jail on
October 14, 2014. He stated that the Appellant could have informed his case officer of
the new charges by letter or telephone. From the file, Wallace determined that the
Appellant had not failed a drug screen during his supervision.
Kenneth Bass, an investigator with the Pulaski Police Department, testified that
the Giles County Sheriff’s Department’s web site reflected three instances in which the
Appellant was booked into jail and released on the same day: July 1, 2014; July 26,
2014; and October 6, 2014. On October 14, 2014, the Appellant was booked into jail on
new drug charges and had not been released.
Regarding the new charges, Investigator Bass said that in 2014, a confidential
informant made four controlled purchases of cocaine from the Appellant. On February
26, he bought .77 grams; on March 4, he bought 1.69 grams; on March 11, he bought
1.16 grams; and on March 27, he bought .31 grams. Investigator Bass said the
confidential informant had made other controlled purchases for the police, and
Investigator Bass considered the confidential informant to be reliable. Investigator Bass
noted that the confidential informant was not working with the police in order to mitigate
any pending criminal charges but was paid by the police.
On cross-examination, Investigator Bass clarified that all of the transactions
occurred in the front yard of the confidential informant’s house, which was close to the
street. Defense counsel asked if the confidential informant went inside the house prior to
any of the transactions. Investigator Bass responded, “A few of them. I’m not sure on
exactly which ones [the confidential informant] went to his actual house and sat and
waited on the [Appellant] to show up.” Investigator Bass acknowledged that the police
did not search the confidential informant’s house before the transactions and that the
confidential informant possibly could have “stuck some cocaine in his pocket that he
found in his house or that he had in his house.”
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Investigator Bass said that the confidential informant volunteered to help the
police investigate several different people, one of whom was the Appellant. Investigator
Bass had no reason to believe the confidential informant “might have an axe to grind
against” the Appellant. Investigator Bass said that he usually paid informants $80 to
$100 per transaction.
The confidential informant testified that on the morning of February 26, 2014, he
met Investigator Bass at the police station, which was near the confidential informant’s
house. At the station, officers searched the confidential informant and equipped him with
a recording device. He then called the Appellant. The Appellant drove to the front of the
confidential informant’s house and got out of his car. The confidential informant gave
the Appellant money, and the Appellant gave the confidential informant some powder
cocaine. The confidential informant did not recall the amount he paid for the cocaine.
The confidential informant said that on March 4, 11, and 27, 2014, he obtained
cocaine from the Appellant in transactions that occurred essentially the same as the
earlier transaction. On all four occasions, the Appellant drove to the confidential
informant’s house, and they had “a hand-to-hand transaction.” After each transaction, the
confidential informant gave the cocaine to Investigator Bass. The confidential informant
said that he did not make any stops before meeting with Investigator Bass.
On cross-examination, the confidential informant said that he had used powder
cocaine and heroin; however, he did not use drugs before any of the transactions with the
Appellant and that he stopped using drugs around the beginning of 2015. The
confidential informant said that he volunteered to help the police to avoid “falling right
back into the drug situation.”
The confidential informant said that he had a criminal history and that he was
facing “charge[s]” for drugs and guns. He said that he carried a gun to protect himself
from the Appellant’s friends, who were upset with him. He explained that he had heard
rumors that “people” were “looking for” him and planned to “get” him.
The confidential informant said that he did not go inside his house after being
searched by the police but that he went to the side of the house and waited for the
Appellant. After completing the transactions, he returned to the police station. The
confidential informant said that he gave Investigator Bass all of the cocaine he bought
from the Appellant.
The trial court found that the Appellant violated community corrections “on both a
technical and nontechnical basis.” The court found that the Appellant failed to pay fees
and costs and that a few months after being granted community corrections, the Appellant
sold cocaine on four occasions. The trial court said:
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The fact is [the Appellant] was granted a plea
agreement such that many of the underlying school zone
cases essentially went away. He was granted the benefit of a
community . . . corrections sentence. He failed miserably.
He failed not once, not twice, not three times, but four times.
He did it in the shadows of the city police department. . . .
The [Appellant] was given significant and sufficient rope and
the [Appellant] has hung himself. He has no one to blame but
himself.
The trial court ordered the Appellant to serve his original sentences in confinement.
On appeal, the Appellant contends that his judgments are illegal; therefore, the
trial court had no authority to revoke his community corrections sentences and order
confinement. He contends that the appropriate remedy is to remand to the trial court for
correction of the judgments and that he is entitled to a new revocation hearing.
II. Analysis
A. Errors in Judgments
The Appellant maintains that the judgments of conviction in count 4 of case
number 16333 and count 1 of case number 16491 are illegal because the sentences in
those counts were either to be served concurrently with or consecutively to a sentence in
count 1 of case number 16333, which was dismissed pursuant to the plea agreement. The
Appellant contends that this court should remand the case to the trial court for entry of
amended judgments that “conform with the negotiated plea agreement” and for a second
probation revocation hearing. The State responds that the errors in the judgments are
clerical and that a second revocation hearing is not required. We agree with the State.
Tennessee Rule of Criminal Procedure 36 provides that “[c]lerical mistakes in
judgments . . . may be corrected by the court at any time.” The judgment of conviction
for count 1 in case number 16491 provides that the eight-year sentence is to be served
consecutively to count one of case number 16333, which the State dismissed. Therefore,
we must remand the case for entry of a corrected judgment reflecting that the sentence is
to be served consecutively to the four-year sentence for count 4 in case number 16333, as
is provided in the plea agreement.
Next, the judgments of conviction reflect that the four-year sentence for count 4 in
case number 16333 was to be served consecutively to the sentence for count 1 in case
number 16333 and that the four-year sentence in count 3 in case number 16491 was to be
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served concurrently with the sentence in count 1 of case number 16333. The Appellant
asks that the case be remanded for entry of corrected judgments that conform with the
written plea agreement. Notably, the judgments for count 4 in case number 16333 and
count 3 in case number 16491 do conform with the terms of the written plea agreement.
However, the written plea agreement also provides that count 1 of case number 16333
was to be dismissed. Clearly, both the written plea agreement and the judgments of
conviction contain clerical errors. Accordingly, we must remand to the trial court for
entry of corrected judgments reflecting that the sentence for count 4 in case number
16333 is to be served consecutively to count 2 of case number 16333 and count 3 in case
number 16491 is to be served concurrently with the eight-year sentence for count 2 in
case number 16333. The resulting total effective sentence of twenty years is consistent
with the sentence set out in the plea agreement.
B. Community Corrections
Generally, community corrections sentences are governed by the Tennessee
Community Corrections Act of 1985. See Tenn. Code Ann. § 40-36-101. The Act
provides as follows:
The court shall . . . 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(e)(4). A trial court may revoke a community corrections
sentence upon finding by a preponderance of the evidence that an offender violated the
conditions of his suspended sentence. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). The trial court’s revocation of a community corrections sentence will be upheld
absent an abuse of discretion. Id. An abuse of discretion occurs if the record contains no
substantial evidence to support the conclusion of the trial court that a violation of
community corrections has occurred. See State v. Gregory, 946 S.W.2d 829, 832 (Tenn.
Crim. App. 1997).
On appeal, the Appellant contends that the trial court abused its discretion by
finding that the Appellant violated the terms of community corrections. The Appellant
maintains that his cross-examination of Wallace revealed that the Appellant was unable
to report to his case officer or advise his case officer of new charges because the
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Appellant was incarcerated in the Giles County Jail. He also contends that he had
provided proof of employment to his case officer; therefore, the only ground for
revocation was the Appellant’s failure to pay his supervision fees. He argues that he was
“only $165 behind in paying his supervision fees” and that the trial court should not have
revoked the Appellant’s community corrections sentences without proof that his failure to
pay was willful.
Our review of the record belies the Appellant’s contentions. Wallace testified that
the Appellant was supposed to report to his case officer at least once a week. The
Appellant failed to report from August 18, 2014, until the revocation warrant was filed on
October 20, 2014. During that period, the Appellant was booked into jail on July 1,
2014; July 26, 2014; and October 6, 2014. On each occasion, the Appellant was released
the same day. Therefore, until the Appellant was incarcerated without release on October
14, 2014, he was not impeded from reporting to his case officer.
The record also reveals that the Appellant failed to pay supervision fees of $15 per
month and that the $165 was an arrearage of several months. Moreover, Investigator
Bass and the confidential informant testified that the Appellant sold drugs to the
confidential informant on four occasions while he was released on community
corrections for multiple convictions relating to possessing and selling drugs. The trial
court noted that despite receiving the largesse of alternative sentencing, the Appellant
violated the terms of community corrections “on both a technical and a nontechnical
basis” by failing to pay fines and court costs and by continuing to sell drugs. We
conclude that the trial court did not abuse its discretion by revoking the Appellant’s
community corrections sentences.
Finally, this court has repeatedly stated that “an accused, already on [alternative
sentencing], is not entitled to a second grant of probation or another form of alternative
sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065,
at *2 (Tenn. Crim. App. at Nashville, Feb. 10, 1999); see also State v. Timothy A.
Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim. App. at
Nashville, Feb. 11, 2002). We conclude that the trial court did not abuse its discretion by
revoking the Appellant’s community corrections sentences and ordering him to serve the
sentences in confinement.
III. Conclusion
Based upon the foregoing, we affirm the judgments of the trial court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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