        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs November 26, 2002

              STATE OF TENNESSEE v. BRADLEY RYAN WEBB

                 State Appeal from the Circuit Court for Cocke County
 Nos. 7974-7978; Circuit Court for Jefferson County No. 6916, Ben W. Hooper II, Judge



                                No. E2002-01375-CCA-R3-CD
                                     February 26, 2003


The State appeals the ruling of the Cocke County Circuit Court modifying the sentence of the
Appellee, Bradley Ryan Webb, pursuant to Rule 35, Tennessee Rules of Criminal Procedure. Under
the terms of a plea agreement, Webb received an effective six-year Department of Correction (DOC)
sentence, which stemmed from six theft convictions in Cocke and Jefferson counties. The plea
agreement provided that the six-year DOC sentence would be served concurrently with a federal
sentence Webb was serving. Following a timely filed Rule 35 motion, the trial court modified
Webb’s DOC sentences to “time served” and ordered removal of the state detainer warrant lodged
against Webb. The trial court found that modification was necessary to effectuate the intent of the
plea agreement. The State argues that the trial court’s ruling was improper because Webb’s
sentences were imposed as a result of an “agreed plea,” and any post-sentencing developments
complained of by Webb were not unforeseen. After review, we conclude that Webb’s sentence was
improperly modified. Accordingly, the judgment of the trial court is reversed, and this case is
remanded for reinstatement of the judgments of conviction as originally entered.

          Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed; Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE , JJ., joined.

William M. Leibrock, Newport, Tennessee, for the Appellee, Bradley Ryan Webb.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D.
Aslinger, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Ronald C.
Newcomb, Assistant District Attorney General, for the Appellee, State of Tennessee.
                                             OPINION

                                       Factual Background

        In May 2000, the Appellee pled guilty in Cocke County to two counts of Class D felony theft
and three counts of Class B felony theft, and he also pled to one count of Class D felony theft,
stemming from an indictment in Jefferson County. The plea agreement provided that the Appellee
would receive two-year sentences on each Class D theft conviction and six-year sentences on each
Class B theft conviction, with all sentences to be served concurrently. The plea agreement further
provided that sentencing would be deferred to permit the Appellee to be sentenced in federal district
court on charges which were pending at the time. After federal sentencing was completed, the
Appellee would be returned to the state court for sentencing and, as agreed, his state sentences would
run concurrently with his federal sentences. On January 8, 2001, the sentences were imposed by the
trial court in Cocke County. On March 9, 2001, the Appellee, pursuant to Rule 35(b),Tennessee
Rules of Criminal Procedure, filed a pro se motion requesting that his state sentence be “run co-
terminus to his sentence of 30 months imposed by the United States District Court for the Eastern
District of Tennessee.” The trial court’s order granting the Appellee’s Rule 35 motion recites the
following findings:

       2. The defendant had an effective sentence of 6 years, and has accumulated
       substantial credit towards that sentence. The Court relies on the T.O.M.I.S. offender
       report generated by the Tennessee Department of Correction in finding that he is well
       beyond his release eligibility date.

       3. The Court is aware that the Tennessee Board of Paroles has conducted foreign
       jurisdiction hearings in this matter last year and this year, in the absence of the
       defendant, and has not granted parole.

       4. The Court finds that the defendant is in federal custody with a release date of
       December 23, 2002, and is currently under detainer from the State of Tennessee for
       the sentences referenced above. The active detainer has adversely affected his
       security level, causing him to be removed from the camp and placed in a federal
       correctional facility, and further, will prevent his placement in a halfway house by the
       federal system.

       5. The Court specifically makes note of the State’s objection to any alteration in the
       terms of the plea agreement, but finds that under the circumstances of this particular
       matter, it is appropriate to amend his state sentences from Cocke and Jefferson
       County, enumerated above, to run co-terminus with his federal sentence, and the
       detainer removed. It is, therefore, ORDERED that these sentences be modified to
       time served and the balance to be served on supervised probation, and that the State
       take such action as is necessary to withdraw the detainer and execute any additional
       forms as may be required to amend this judgment.


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                                                     ANALYSIS

        Modification of a sentence may be granted under Rule 35(b),Tennessee Rules of Criminal
Procedure,1 if the trial court finds “in the interest of justice,” that the sentence must be reduced.
State v. Hodges, 815 S.W.2d 151, 154 (Tenn. 1991). However, where a trial court accepts a guilty
plea agreement under Rule 11(e)(1)(C), Tennessee Rules of Criminal Procedure, the trial court
should not modify the agreed upon sentence absent unusual circumstances, such as unforeseen post-
sentencing developments. State v. McDonald, 893 S.W.2d 945, 947 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1994). On appeal, the trial court’s disposition of a motion to modify will not
be disturbed unless the appellate court finds an abuse of discretion. State v. Irick, 861 S.W.2d 375,
376 (Tenn. Crim. App. 1993); State v. Costa, No. 01C01-9511-CR-00376 (Tenn. Crim. App. at
Nashville, Dec. 4, 1997).

        The Appellee argues that granting the Rule 35 motion was entirely proper, as modification
was necessary to reflect the original agreement of the parties. Moreover, the Appellee argues that,
after he was returned to federal custody following state sentencing, the office of the district attorney
general placed a state detainer on him which “adversely affected his security level” and resulted in
loss of other inmate privileges. On the other hand, the State argues that the plea agreement provides
that the Appellee’s state and federal sentences are to be served “concurrently,” not “co-terminus,”
and that the Appellee was not guaranteed parole after service of thirty percent of his sentence.

        It is undisputed that the plea agreement executed by the Appellee and his attorney and the
plea recommendation by the prosecutor at sentencing is as follows:

        The defendant shall receive a sentence of six years, TDOC to run concurrently with
        case no. 6916 on the docket of the Jefferson County Circuit Court and concurrently
        with cases 7974 and 7975 of the Circuit Court of Cocke County. All Jefferson and
        Cocke sentences shall run concurrently with sentencing to be imposed by the U.S.
        District Federal Court of Greenville, Tennessee, and the sentencing in this cause shall
        be deferred until after the sentencing in Federal Court. The defendant shall likewise
        pay as restitution all reward money paid by the victim in this cause for the return of
        the three motorcycles involved.

        The above terms represent the full agreement between the parties.




       1
           Rule 35 provide s in relevant part as follows:

       (b) The trial court may reduce a sentence upon app lication filed within 120 days after the date the
       sentence is impo sed o r probation is revo ked. . . . If the sentence is modified, the state may appeal as
       otherwise provided by law. A modification can only be as to any sentence the court could have
       originally imposed.

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        Placing considerable blame with the prosecutor’s office for lodging the detainer against the
Appellee while he was in federal custody, the trial court granted the Rule 35 motion. The court
concluded that it was the intent of the State and the Appellee that the state and federal sentences were
to be served “co-terminus.” We are unable to agree with this conclusion. The plea agreement
executed by the Appellee, the trial court’s pronouncement at the guilty plea hearing, and the trial
court’s docket entry all reflect that the state and federal sentences were to be served “concurrently.”
There is nothing in the record supporting the Appellee’s argument that the sentences were to be “co-
terminus,” which was defined by the Appellee as “when he did that Federal time he was supposed
to get out of jail.” Furthermore, with regard to the detainer, we would note that, under the Interstate
Compact on Detainers Act, it was incumbent upon the district attorney general to notify the warden
at the federal correctional facility where the Appellee was incarcerated as to the disposition of
charges in this state. Tenn. Code Ann. § 40-31-101 to - 108. As such, the prosecutor’s action may
not be characterized as unforeseen. Because the Appellee has failed to establish any “unforeseen,
post sentencing development[s],” it was an abuse of discretion for the trial court to modify the agreed
sentence.


                                          CONCLUSION

        Based upon the foregoing, we find that it was abuse of discretion for the trial court to grant
the Appellee’s Rule 35 motion for modification of sentence. Accordingly, the judgment of the trial
court is reversed, and this case is remanded for reinstatement of the judgments of conviction as
originally entered.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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