Terry L. Baker v. State of Tennessee - Concurring

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 10, 2002 Session
TERRY L. BAKER v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County
No. 92-A-647 Seth Norman, Judge
No. M2002-00400-CCA-R3-PC - Filed December 29, 2003
DAVID G. HAYES, J., separate concurring.
I join with the majority in concluding that resentencing is necessary for those reasons recited
in the opinion. In addition, I find that resentencing is also required for the following reasons. The
plea agreement, which is the subject of this appeal, was not negotiated contemporaneously with the
petitioner's revocation hearing in January 1997; rather, it was negotiated at the time of his original
guilty pleas in May 1995. At that time, he received a ten-year community correction sentence. The
1995 plea agreement provided that should he violate a condition of his ten-year sentence, he would
then serve a "minimum of twelve years at thirty-five percent . . . and the State would request at least
partial consecutive sentencing." I find this type of sentence is not authorized by our sentencing laws.
A high degree of exactitude is required in the pronouncements of judgments
imposing penal servitude, and a sentence should be definite, certain, and not
dependent upon any contingency or condition. It should clearly reveal the intention
of the court as to the punishment to be inflicted. Where the contrary is the case, the
benefit of any doubt should be resolved in favor of the defendant.
21 AM JUR 2D , Criminal Law, § 821 (1998).
The State now seeks enforcement of an alternative sentence contained within the original
sentence agreement based upon the contingency of a violation. I find no authority under our
sentencing laws which would permit imposition of an alternative sentence based upon the existence
of a future contingency. Tennessee Code Annotated Section 40-35-211 requires that a sentence be
specific as to length.
Additionally, following revocation, the trial court simply pronounced a twenty-year sentence
with no request by trial counsel for a sentencing hearing or any opportunity for the petitioner to be
heard or to present witnesses or evidence relevant to sentencing. While the accused in a revocation
proceeding is not entitled to "the full panoply of procedural safeguards associated with a criminal
trial," he is, nonetheless, entitled to certain due process rights. Black v. Romano, 471 U.S. 606, 613-
14, 105 S. Ct. 2254, 2258-59 (1985). Moreover, as alluded to in the majority opinion, in
resentencing the petitioner, the court ordered imposition of a single twenty-year sentence for the
seven class B felony offenses. When a defendant is sentenced upon different counts, the correct
method of entering judgment is not for the total time in gross, but for a specific time under each
count.
For these reasons and those expressed in the majority opinion, I find remand for resentencing
necessary.
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DAVID G. HAYES, JUDGE
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