State of Tennessee v. Bruce Cole

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
AUGUST 1996 SESSION March 24, 2008
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) NO. 02C01-9510-CC-00290
)
Appellee ) GIBSON COUNTY
)
V. ) HON. DICK JERMAN, JR., JUDGE
)
BRUCE COLE ) (Sentencing)
)
Appellant )
)
FOR THE APPELLANT FOR THE APPELLEE
Tom W. Crider Charles W. Burson
District Public Defender Attorney General and Reporter
107 South Court Square 450 James Robertson Parkway
Trenton, Tennessee 38382 Nashville, Tennessee 37243-0493
J. Diane Stouts Charlotte H. Rappuhn
Assistant District Public Defender Assistant Attorney General
107 South Court Square 450 James Robertson Parkway
Trenton, Tennessee 38382 Nashville, Tennessee 37243-0493
Periann S. Howghton Clayburn L. Peeples
Assistant District Public Defender District Attorney General
107 South Court Square 109 East First Street
Trenton, Tennessee 38382 Trenton, Tennessee 38382-1841
Gary G. Brown
Assistant District Attorney General
109 East First Street
Trenton, Tennessee 38382-1841
OPINION FILED:______
REMANDED FOR A NEW SENTENCING HEARING
William M. Barker, Judge
Opinion
The Appellant, Bruce Cole, appeals as of right his sentences for five
convictions of sale of a Schedule II controlled substance. The Appellant argues on
appeal that the trial court erred when it enhanced his sentences and ordered them to
be served consecutively. Following a careful review of the record on appeal, we
remand the case to the trial court for a new sentencing hearing.
On February 27, 1992, the Appellant pled guilty to separate offenses of assault
and robbery. The trial judge sentenced him to three years for the robbery and eleven
months and twenty-nine days for the assault, both sentences to be served
concurrently. The trial judge then ordered forty-five days confinement and the
remainder of the sentence to be served on probation.
On June 22, 1992, the Appellant pled guilty to, and was convicted of, five
separate incidents of sale of a Schedule II controlled substance. The trial judge
revoked the Appellant’s probation and sentenced him to five concurrent ten-year
sentences in a community corrections program.
On February 27, 1995, the Appellant was arrested for public intoxication and
possession of marijuana in violation of the terms of his community corrections
sentence. On June 19, 1995, at the community corrections revocation hearing, the
trial judge revoked the Appellant’s community corrections sentence. The trial judge
also enhanced each ten-year sentence to twelve years and ordered one twelve-year
sentence to be served consecutively to the remaining four twelve-year sentences for a
total of twenty-four years imprisonment. The trial judge stated for the record that he
had given the Appellant not only one chance, but two chances, and that he could not
give him a third chance. The trial judge did not place on the record why he enhanced
and ordered consecutive the Appellant’s sentences.
When an Appellant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)
(1990). This presumption, however, is conditioned upon an affirmative showing in the
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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).
Here, the trial judge was well within his authority to revoke the Appellant’s
community corrections sentence and to resentence him within bounds of the
Sentencing Reform Act. A trial judge has the authority to revoke a previously imposed
community corrections sentence due to a defendant’s conduct. Tenn. Code Ann.
§ 40-36-106 (e)(4) (Supp. 1995). A trial judge “may [also] 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 . . . .” Id.
However, the trial judge did not indicate on the record to what extent he
considered the Sentencing Reform Act’s principles and all the relevant facts and
circumstances surrounding the Appellant and the Appellant’s criminal history. Since
the record is void of the trial court’s considerations we cannot rely on the statutorily
mandated presumption of correctness. When the presumption of correctness fails, we
must conduct a de novo review of whether the Appellant’s sentence was appropriate.
Tenn. Code Ann. § 40-35-401(d). See State v. Shelton, 854 S.W.2d 116, 123 (Tenn.
Crim. App.1992).
When the record on appeal does not contain sufficient facts for de novo review,
however, it is appropriate for the reviewing court to remand the case to the trial court
for a new sentencing hearing. See State v. Wilkerson, 905 S.W.2d 933, 934-35
(Tenn. 1995); State v. Kenneth Eugene Troutman, No. 03C01-9509-CC-00287 (Tenn.
Crim. App., Knoxville, Nov. 6, 1996). In this case, we decline de novo review for two
reasons. First, as previously stated, the trial judge did not place on the record why he
enhanced and ordered consecutive the Appellant’s sentences. Second, the record on
appeal is very meager and does not contain any transcripts from the earlier
sentencing hearings and no presentence report or other facts and circumstances
regarding the Appellant’s previous criminal history. Without this necessary information
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we cannot review de novo whether the Appellant’s sentences were appropriate.
Accordingly, this case is remanded to the trial court for a new sentencing hearing.
__________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
__________________________
GARY R. WADE, JUDGE
__________________________
JERRY L. SMITH, JUDGE
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