                                                                                         02/05/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 17, 2019

                   STATE OF TENNESSEE v. JAMES HALL

                Appeal from the Criminal Court for Davidson County
               Nos. 2015-C-1974, 2016-B-842 Seth W. Norman, Judge
                      ___________________________________

                           No. M2018-00096-CCA-R3-CD
                       ___________________________________


Defendant, James Hall, appeals the trial court’s denial of his motion to modify his
sentence pursuant to Tennessee Rule of Criminal Procedure 35. Defendant argues that
the trial court abused its discretion when it failed to consider Defendant’s rehabilitation
efforts. After a review of the record, we determine that the trial court did not abuse its
discretion. However, the judgment for case 2015-C-1974 contains an error that warrants
remand for correction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
                                  and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.

Kevin Kelly, Nashville, Tennessee, for the appellant, James Hall.

Herbert H. Slatery III, Attorney General and Reporter; Renee Turner, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and D. Paul DeWitt,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       On July 13, 2016, Defendant pled guilty to one charge of selling a substance
containing heroin, a Schedule I controlled substance, and one charge of an attempted sale
of a substance containing heroin, a Schedule I controlled substance. In exchange for his
guilty plea, Defendant received concurrent suspended sentences of thirteen years for
selling a substance containing heroin and eight years for the attempted sale of a substance
containing heroin and was placed on Community Corrections. Defendant violated
Community Corrections three times, and after his third strike, the trial court revoked his
suspended sentence and ordered Defendant to serve his sentence in incarceration.1
Defendant filed a timely petition pursuant to Tennessee Rule of Criminal Procedure 35
on December 5, 2017, asking the trial court to modify its decision to revoke his
suspended sentence.

        At the December 15, 2017 hearing on the matter, Lisa Drake, Defendant’s sister,
testified that she had kept up with Defendant’s struggles and that she would like to see
him placed in a rehabilitation program rather than prison. Ms. Drake is a “team lead” for
the Drug Screening Program at LabCorp, and she stated that she would provide any
transportation that Defendant required. Defendant also testified and showed proof that he
had completed the New Avenues 45-day intensive alcohol and drug treatment program
while incarcerated. Defendant also entered as an exhibit a letter of acceptance to the Safe
Harbor program at The Lighthouse, which is a six-month, faith-based recovery program.
Defendant claimed that he was motivated to recover and that if he were to be released, he
would be “a brand new James Hall.” After hearing argument from Defendant and the
State, the trial court ruled by saying, “I have given him all of the chances I can give him,
petition denied.”2 This appeal followed.

                                                Analysis

      Defendant argues that the trial court abused its discretion by failing to consider
Defendant’s rehabilitation efforts when ruling on his motion for modification of his
sentence. The State responds that Defendant failed to show an abuse of discretion. We
agree with the State.

        Tennessee Rule of Criminal Procedure 35 provides a mechanism by which a
defendant may seek reduction of his sentence within 120 days after the date the sentence
is imposed or probation is revoked. Tenn. R. Crim. P. 35(a). The trial court may only
reduce a sentence to one that the court could have “originally imposed.” Id. at 35(b). A
trial court may deny a Rule 35 motion without a hearing. Id. at 35(c). A defendant may
appeal the denial of the motion. Id. at 35(d). When an appellate court reviews the denial

        1
          A trial court order revoking Defendant’s suspended sentence is not included in the record on
appeal, but the State acknowledged at the hearing on Defendant’s motion to modify his sentence that the
revocation hearing occurred on August 30, 2017 and that Defendant’s suspended sentence was revoked
on “that day.”
        2
          A trial court order denying Defendant’s Petition to Modify Sentence is not included in the
record on appeal. After this Court ordered the trial court clerk to supplement the record, the trial court
clerk notified this Court that no order exists. A December 15, 2017 minute entry does appear in the
record, indicating the trial court denied Defendant’s petition on that date.
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of a motion to reduce or modify a sentence, the standard is whether the trial court abused
its discretion. State v. Edenfield, 299 S.W.3d 344, 346 (Tenn. Crim. App. 2009).

        Where a Defendant has entered a plea agreement with a specific, negotiated
sentence, that sentence may only be modified pursuant to Rule 35(b) “where unforeseen,
post-sentencing developments would permit modification of a sentence in the interest of
justice.” State v. McDonald, 893 S.W.2d 945, 947 (Tenn. Crim. App. 1994); see State v.
Patterson, __ S.W.3d __, 2018 WL 6441639, at *8 (Tenn. 2018) (“[A] defendant is
required to provide such information only if the defendant’s Rule 35 motion seeks
reduction of a specific sentence imposed in exchange for a guilty plea. For Rule 35
motions of this type, the McDonald standard remains applicable and appropriate.”). A
defendant’s willingness to enter a rehabilitation program or a defendant’s completion of a
rehabilitation program is not the type of “unforeseen, post-sentencing” development that
may serve as the basis for a modification of a sentence. See State v. Russell Leaks, No.
W2013-01136-CCA-R3-CO, 2014 WL 10316777, at *2 (Tenn. Crim. App. May 15,
2014) (determining the defendant’s claim that he would “seek intensive rehabilitation
treatment if released” was not an “unforeseen, post-sentencing” development that would
allow the trial court to modify the defendant’s sentence from negotiated plea in the
interest of justice), no perm. app. filed; State v. Hugo Mendez, No. W2009-02108-CCA-
R3-CD, 2010 WL 2836116, at *2 (Tenn. Crim. App. July 19, 2010) (stating completion
of rehabilitative services during incarceration was not the “type[] of ‘unforeseen
development[]’ which would serve as a basis for sentence modification”), no perm. app.
filed.

        Here, Defendant argues that the trial court abused its discretion because it failed to
take into account “that [Defendant] had turned a corner in his willingness to address his
addiction, took it upon himself to complete a substance abuse treatment program while in
custody, and enlisted the help of an established treatment program upon release to help
him in his efforts.” However, these are precisely the type of facts that this Court has held
may not serve as the basis for a modification of a sentence. See Russell Leaks, 2014 WL
10316777, at *2; Hugo Mendez, 2010 WL 2836116, at *2. The trial court did not abuse
its discretion, and Defendant is clearly not entitled to relief.

        In our review of the record, we noted that there is an error in one of the July 13,
2016 judgment documents entered by the trial court. The “Petition to Enter Plea of
Guilty,” signed by Defendant, the attorney for Defendant, and the attorney for the State,
indicates that Defendant was pleading guilty to “Att. Sale of Sched I: C Fel” in case
number 2015-C-1974. However, the judgment document for case number 2015-C-1974
lists the conviction offense as “Sale of Contr. Subst. (Sch. I – Heroin)” and indicates that
the conviction class is a B felony. To solve this discrepancy, we remand this case for
entry of a corrected judgment document in case number 2015-C-1974 indicating that
                                            -3-
Defendant’s conviction offense was attempted sale of a Schedule I substance, a class C
felony.

                                     Conclusion

       For the aforementioned reasons, the judgment of the trial court is affirmed, and
this case is remanded for entry of a corrected judgment.


                                           ____________________________________
                                           TIMOTHY L. EASTER, JUDGE




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