         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 9, 2002

    STATE OF TENNESSEE v. JERRY WAYMON TRAVIS, aka JERRY
                       WAYMON RAY

                   Direct Appeal from the Circuit Court for Henry County
                            No. 12746    Julian P. Guinn, Judge



                   No. W2001-01914-CCA-R3-CD - Filed October 14, 2002


The defendant claims it was error for the trial court to sentence him to the Department of Correction
for three years, then order one-year split confinement with the balance on Community Corrections.
The defendant contends that a one-year split confinement sentence will require him to serve 1.2
months longer in confinement than a three-year sentence at 30% to the Department of Correction.
We conclude the sentence imposed did not violate the principles of sentencing and, accordingly,
affirm the judgment from the trial court as modified.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
                                         Modified

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN, JJ., joined.

Guy T. Wilkinson, District Public Defender, and W. Jeffery Fagan, Assistant Public Defender, for
the appellant, Jerry Waymon Travis.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

         On July 19, 2000, the defendant, Jerry Waymon Travis, aka Jerry Waymon Ray, pled guilty
to facilitation of the sale of a Schedule II controlled substance, a Class D felony, and was sentenced
as a Range I standard offender to two years, to be served in split confinement.1 The defendant was
ordered to serve sixty days continuous confinement in the county jail and the remainder of the
sentence in a Community Corrections program. While incarcerated, the defendant violated the terms
of his Community Corrections sentence by introducing drugs into a penal system. After a re-
sentencing hearing, the trial court enhanced the defendant’s sentence based upon his prior history
of criminal convictions and his previous unwillingness to comply with the conditions of parole, bail,
or probation. See Tenn. Code Ann. § 40-35-114(1), (8). The trial court sentenced the defendant to
three years in the Tennessee Department of Correction to be served in split confinement, with one
year in continuous confinement and the balance to be served on Community Corrections.

         The defendant appeals the trial court’s sentence. Essentially, the defendant argues that the
trial court erred by ordering him to serve one year in continuous confinement, because had he simply
been sentenced to three years as a Range I offender, he would have been eligible for release after
serving 30% of his three-year sentence, or approximately 10.8 months.

                                                       Analysis

        Assuming that a new sentencing hearing is conducted, a trial court generally has the authority
to increase the length of a revoked Community Corrections sentence up to the maximum sentence
within the appropriate sentence range for the offense. Tenn. Code Ann. § 40-36-106(e)(2); State v.
Samuels, 44 S.W.3d 489, 493 (Tenn. 2001). In evaluating the propriety of the “new” sentence, it is
the duty of this Court to conduct a de novo review with a presumption that the determinations made
by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned
upon the affirmative showing in the 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); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). “If the trial court applies inappropriate factors or
otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.” State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments
provide that the burden is on the defendant to show the impropriety of the sentence.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).




         1
            The defendant was initially charged with and convicted by a jury of selling a Schedule II controlled substance.
On appeal, this Court reversed the conviction and remanded for a new trial due to the trial court’s failure to instruct the
jury on the appropriate lesser included offenses. State v. Jerry W ayman T ravis, 2000 Tenn. Crim. App. LEXIS 218
W1999-01089-CC A-R 3-CD (Te nn. Crim. Ap p., Jackson, Mar. 10 , 200 0). T herea fter, the de fendant pled guilty to
facilitation o f a felony.

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        The defendant was convicted of facilitation of the sale of a Schedule II controlled substance,
a Class D felony. The presumptive sentence to be imposed by the trial court for a Class D felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d
at 123.

         In the instant case, the trial court found two applicable enhancement factors: (1), the
defendant’s prior history of criminal convictions and (8), the defendant’s previous unwillingness to
comply with the conditions of parole, bail, or probation. Tenn. Code Ann. § 40-35-114 (1), (8). The
trial court increased the defendant’s sentence from two years to three years. In addition, the trial
court found that “[b]y law, this Court must consider alternative means of service, and so finds that
this is an appropriate case to split the sentence and order it served split, with one year of continuous
confinement and the balance in the Community Corrections Program.”

        The judgment reflects a three-year sentence in the Department of Correction, with one year
to be served in continuous confinement and two years in Community Corrections. A defendant
sentenced to split confinement may be ordered to serve up to one year in continuous confinement.
However, the time is to be served in the local jail or workhouse. Tenn. Code Ann. § 40-35-306(a).

        The defendant argues that the trial court’s order of one year of continuous confinement
violates the principles of sentencing because his release eligibility date would have occurred after
serving 30%, or 219 days, had he been sentenced to serve his sentence in the Department of
Correction. The defendant correctly points out that a trial court may not order a defendant sentenced
to two years or less to serve a sentence of confinement that exceeds his or her release eligibility date.
See Tenn. Code Ann. § 40-35-501(a)(3) (mandating that “inmates with felony sentences of two (2)
years or less shall have the remainder of their original sentence suspended upon reaching their
release eligibility date”). The instant defendant was sentenced to three years and is not entitled to
automatic release upon reaching his release eligibility date. However, he contends that the trial court
sentenced him outside the range for a Range I standard offender by extending his release eligibility
date beyond 30%.

        This issue was addressed by this Court in State v. Jeremy Michael Shelton, No. W2000-
00457-CCA-R3-CD, 2001 WL 846029 (Tenn. Crim. App. July 20, 2001). Shelton involved an
identical sentence and concluded as follows:
                In our view, the sentence of split confinement does not violate the principles
        of sentencing merely because the defendant may have to serve 1.2 months more than
        he may have had to serve in the Department of Correction. As the state correctly
        notes, the defendant would have no right to conditional release prior to the expiration
        of his Department of Correction sentence. Greenholtz v. Inmates of the Neb. Penal
        and Correctional Complex, 442 U.S. 1, 7 (1979); Daniels v. Traughber, 984 S.W.2d


                                                  -3-
        918, 924 (Tenn. Ct. App. 1998); see Tenn. Code Ann. § 40-35-503(b) (1997)
        (“Release on parole is a privilege and not a right, . . . .”). Moreover, because the
        defendant is to be confined in the local jail, the trial court will retain full jurisdiction
        over the manner of service of his sentence. Tenn. Code Ann. § 40-35-212(c); see
        Tenn. R. Crim. P. 35, Committee Comment. At any time, the defendant may apply
        to the trial court to serve the balance of his sentence of confinement on probation.
        Tenn. Code Ann. § 40-35-306(c).
Id. at *6.

        Accordingly, the judgment is modified to reflect a sentence of one-year confinement in the
local jail, as opposed to the Department of Correction, followed by two years in Community
Corrections.




                                                          ___________________________________
                                                            JOHN EVERETT WILLIAMS, JUDGE




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