         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs September 22, 2004

      STATE OF TENNESSEE v. CHRISTOPHER DEMOTTO LINSEY

                    Appeal from the Circuit Court for Montgomery County
                       No. 49900006     John H. Gasaway, III, Judge



                   No. M2003-02420-CCA-R3-CD - Filed December 30, 2004


The Appellant, Christopher Demotto Linsey, appeals from the judgment of the Montgomery County
Circuit Court revoking his community corrections sentences. Linsey pled guilty to aggravated
robbery, aggravated burglary, and theft of property over $1,000.00 and, for these convictions, he
received an effective eight-year sentence to be served in the Community Corrections Program. On
November 21, 2002, a warrant was issued, alleging that Linsey violated the terms of his community
corrections agreement based upon new arrests for domestic assault and possession of illegal drugs
for resale and of drug paraphernalia. Following a hearing, the trial court ordered revocation of his
community corrections sentences, and further ordered that his sentence for aggravated robbery be
increased to ten years and that he serve the remainder of his now effective ten-year sentence in the
Department of Correction. On appeal, Linsey argues that (1) the evidence was insufficient to
establish that a violation occurred, (2) the trial court, in resentencing him to ten years for aggravated
robbery, failed to conduct a sentencing hearing as required by the 1989 Sentencing Act, and (3) his
sentences are excessive in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).
Finding no reversible error, the judgment of the trial court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH , J., filed a separate
concurring opinion, and THOMAS T. WOODALL, J., concurred in result only.

Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the Appellant,
Christopher Demotto Linsey.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B.
Marney, Assistant Attorney General; Arthur Bieber, Assistant District Attorney General, for the
Appellee, State of Tennessee.
                                             OPINION

                                       Factual Background

        On November 3, 1997, the Appellant was indicted for aggravated burglary and theft of
property over $1,000.00 in case number 39381A. In April of 1998, he was placed on judicial
diversion for a period of three years. The Appellant reported for his initial interview on May 18,
1998. Thereafter, he failed to report, and a violation warrant was issued on October 15, 1998,
alleging that the Appellant failed to report valid employment, failed to provide his current address,
failed to permit inspection of his residence, and failed to pay all required fees. In 1999, the
Appellant was stopped “for a traffic citation and the outstanding warrant was served.” He then
reported for the months of April and May. On April 6, 1999, the Appellant submitted to a drug
screen and tested positive for marijuana. Thus, a second violation warrant was issued on April 16,
1999, alleging that the Appellant “tested positive for Marijuana on a drug screen” and he “quit his
job without notifying his State Probation Officer.” On June 4, 1999, a violation hearing was held,
and the Appellant “admitted his violation of probation and the court directed a status review in 90
days, with the stipulation that strict compliance to probation rules be maintained.” On August 11,
1999, a third violation warrant was issued based upon the Appellant’s new arrests for simple
possession, driving on a revoked license, and contributing to the delinquency of a minor, his failure
to report arrests, and his failure to pay all required fees. A fourth violation warrant was issued on
September 9, 1999, which alleged two new arrests for aggravated robbery and simple possession.
The Appellant did not report to his case officer after October 20, 1999. A fifth violation warrant was
issued on July 21, 2000, based upon the Appellant’s arrests for the aforementioned five offenses,
his failure to report new arrests, his failure to report to his case officer, and his failure to permit
inspection of his residence.

       On October 13, 2000, the Appellant entered a plea of guilty to the 1997 charges of aggravated
burglary and theft of property over $1,000.00 resulting in termination of judicial diversion. In
exchange for his guilty pleas, he received concurrent three-year sentences in the Community
Corrections Program. Also on October 13, 2000, the Appellant plead guilty to the 1999 charge of
aggravated robbery, case number 49900006, and received a sentence of eight years, to be served
concurrently with the aggravated burglary and theft sentences in the Community Corrections
Program.

        On February 2, 2001, a violation warrant was issued in case numbers 39381A and 49900006,
based upon the Appellant’s arrest for possession of a Schedule II controlled substance for resale.
On April 24, 2002, the Appellant pled guilty to simple possession of cocaine and, therefore, admitted
violating his community corrections agreement. At this time, the Appellant, who had been
incarcerated in the county jail for 262 days, was given credit for time served and reinstated to the
Community Corrections Program. A violation warrant was issued on November 21, 2002, alleging
new arrests for domestic assault, possession of illegal drugs for resale and drug paraphernalia.




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         On July 23, 2003, a violation hearing was held. Following the conclusion of proof, the trial
court found that the Appellant was in violation of his community corrections agreement and ordered
that a presentence report be prepared for resentencing of the Appellant. On September 4, 2003, with
regard to the Appellant’s convictions for aggravated burglary and theft of property, the trial court
revoked the Appellant’s placement in the Community Corrections Program and ordered him to serve
the remainder of his sentences in the Department of Correction. The court also revoked the
Appellant’s eight-year community corrections sentence for aggravated robbery and resentenced him
to ten years in the Department of Correction. The Appellant filed a timely notice of appeal.

                                                    ANALYSIS

I. Revocation

        First, the Appellant contends that the trial court abused its discretion in revoking his
community corrections sentences based upon his arrest for possession of Schedule II and VI
controlled substances with the intent to sell.1 Specifically, he argues that

       the State failed to prove by a preponderance of the evidence either actual or
       constructive possession.

              He contends that the residence in which the drugs were found did not belong
       to him and his mere presence at the scene and association with those in possession
       of cocaine is not sufficient to find him in violation of his Community Corrections
       sentence.

         If the trial court finds by a preponderance of the evidence that a defendant has violated a
condition of his probation, the court has the authority to revoke the probation and reinstate the
judgment as originally entered. Tenn. Code Ann. §§ 40-35-310 , -311(e), -36-106(e)(4) (2003). This
court reviews a revocation of probation under an abuse of discretion standard. State v. Stubblefield,
953 S.W.2d 223, 226 (Tenn. Crim. App. 1997). This means that, if the record presents substantial
evidence to support revocation, the trial court’s action will be approved. Id. In other words, the
evidence need only show that the trial judge has exercised “conscientious and intelligent judgment
in making the decision rather than acting arbitrarily.” State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995) (citing Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980)). Thus, in
reviewing the trial court’s action, it is our obligation to examine the record and determine whether
the trial court has exercised a conscientious judgment.

        “Possession” may be either actual or constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001). Constructive possession requires proof that a person had “the power and intention at a given
time to exercise dominion and control over [the weapon] either directly or through others.” Id.
(quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)). In essence, constructive


       1
           The Appellant’s case officer testified that he was “not sure what happened” to the domestic assault charge.

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possession is the ability to reduce an object to actual possession. State v. Brown, 915 S.W.2d 3, 7
(Tenn. Crim. App. 1995). Obviously, proof that the accused had ownership or control over the
property where contraband is kept may help resolve the question of constructive possession because
it gives rise to an inference of knowledge and possession of the contraband. See Brown, 915 S.W.2d
at 7-8; State v. Jackson, No. M1998-00035-CCA-R3-CD (Tenn. Crim. App. at Nashville, May 5,
2000). Nonetheless, it is not a prerequisite for conviction.

       On November 6, 2002, Officer Frederick McClintock of the Clarksville Police Department
executed a search warrant at 205 Charlemagne Boulevard. Upon entering the home, Officer
McClintock mirandized the Appellant and Rebecca Beals, the owner of the residence and the
Appellant’s girlfriend. Later in a written statement, the Appellant admitted that he resided in the
home with Beals.

        During the search, McClintock found “multiple bags” of a Schedule VI substance in the
house. The largest bag of cocaine, which weighed “over a pound, was found in the master bedroom
closet. Also in the master bedroom, were five small bags of cocaine weighing approximately twenty-
six grams. According to Officer McClintock, 700 grams of marijuana was also discovered inside
the home. Moreover, McClintock found drug paraphernalia commonly used in the drug packaging
process, including “stripped out” cigars, razor blades, glad plastic bags with “the corners of them cut
out,” and electronic digital scales. Additionally, Officer McClintock discovered $360.00 in cash
behind the mat of a framed Titans’ jersey, which belonged to the Appellant.

         We conclude that the proof at the revocation hearing established by a preponderance of the
evidence that the Appellant violated the terms of his community corrections agreement by possessing
illegal drugs for resale. The Appellant resided in the home with his girlfriend, and they shared the
master bedroom, where the majority of the drugs were located. The drug paraphernalia discovered
in the home indicated that drugs were packaged for resale at the residence. Moreover, many of the
drugs and items were found in plain view. This proof clearly establishes a violation of condition #9
of the Appellant’s behavioral contract that he will obey the laws of the United States and not incur
any new arrests. His flagrant abuse of his judicially granted liberty is indefensible. The primary goal
of non-institutional punishment is to provide a period of grace in order to assist the rehabilitation of
a penitent offender. Burns v. United States, 287 U.S. 216, 220, 53 S. Ct. 154, 155 (1932).
Accordingly, we cannot conclude that the trial court abused its discretion in revoking the Appellant’s
community corrections sentences.

II. Sentencing

A. Ten-year Sentence for Aggravated Robbery

        Next, the Appellant contends that the trial court erred by increasing his sentence for
aggravated robbery from eight to ten years. He argues that the trial court failed to conduct a
sentencing hearing pursuant to the 1989 Sentencing Act and failed to state its reasons for increasing
his sentence on the record.


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          A trial court has the power, upon revocation of a community corrections sentence, to re-
sentence a defendant to a period of incarceration up to the maximum for the offense originally
committed, with credit for time already served in the Community Corrections program. Tenn. Code
Ann. § 40-36-106(e)(4) (2003). The purpose of allowing the trial court to impose a new sentence
is that the nature, circumstances, and frequency of the Appellant's violations may “warrant a different
type of alternative sentence or incarceration.” State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim.
App. 1996). The trial court may not, however, use the statute for the sole purpose of punishing a
defendant for violating the community corrections sentence. Id.

        When a trial court chooses to resentence a defendant to a sentence more severe than the
original, the trial court must conduct a sentencing hearing pursuant to the principles of the
Sentencing Reform Act. State v. Crook, 2 S.W.238, 240 (Tenn. Crim. App. 1998); Ervin, 939
S.W.2d at 583; State v. Keith F. Batts, No. 01C01-9210-CR-00326 (Tenn. Crim. App. at Nashville,
Feb. 18, 1993); State v. Timothy Lemont Wade, No. 01C01-9303-CR-00092 (Tenn. Crim. App. at
Nashville, Nov. 24, 1993). It is mandatory for the trial court to state on the record the reasons for
imposing a new sentence. State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987). The
Sentencing Reform Act provides that the record of the sentencing hearing “shall include specific
findings of fact upon which application of the sentencing principles was based.” Tenn. Code Ann.
§ 40-35-209(c) (2003); see also Tenn. Code Ann. § 40-35-210(f) (2003).

       When an appellant complains of his sentence on appeal, this court conducts a de novo review
coupled with a presumption that the trial court’s sentencing determinations are correct. Tenn. Code
Ann. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However, this
presumption is conditioned upon an affirmative showing that the trial court considered the relevant
sentencing principles and all pertinent facts and circumstances. Ashby, 823 S.W.2d at 169.
Regardless of whether the presumption of correctness is applied, the burden of showing the
impropriety of the sentence is on the appealing party. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.

        The trial court, in increasing the Appellant’s sentence for aggravated robbery to ten years,
stated on the record:

               The presentence report indicates that Mr. Linsey’s criminal history started
       when he was 18-years-old. He was convicted in May of 1994 in the Montgomery
       County Circuit Court of conspiracy to sell cocaine. That conviction was upon his
       plea of guilty, and he received a four year sentence, and was ordered to serve that
       sentence with community correction.

              Two months later he was charged with contributing to the delinquency of a
       minor. That matter came up in the Montgomery County General Sessions Court, and
       on November 10th 1994 he was convicted and - - as charged and was sentenced to
       a term of 11 months and 29 days.



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                The Court is uncertain how that sentence was satisfied, but the import of that
       is that he committed this offense two months after he was ordered to serve the four
       year sentence with community correction. That four year sentence, by the way, case
       number three three five eight eight.

             He was also convicted in the general sessions court on that same date of
       November 10, 1994 of evading arrest; was sentenced to term of 11 months and 29
       days.

               Then in February of 1996 he was convicted again in the Montgomery County
       General Sessions Court of vandalism. He was sentenced to a term of 11 months and
       29 days, and this sentence - - well I’m puzzled because the presentence report
       indicates that that sentence was ordered to be served consecutive to the four year
       sentence in three three five eight eight, but that could not have been done by general
       sessions court.

                So, I am uncertain as to structure of that sentence, but, nevertheless the - -
       again, the import of this is that after he was sentenced to serve the four years with
       community correction he committed the offenses of contributing to the delinquency
       of a minor, evading arrest, which stemmed out of the same conduct, but then was
       later, and two years later, convicted of vandalism under case three nine three eight
       one.

               The offense date was October the 2nd of 1997, which meant that for a fourth
       time he committed an offense while he was serving a community correction sentence.
       He was judicially diverted; and I don’t understand how that happened. I do not
       understand how he was judicially diverted on April the 9th 1998 under case number
       three nine three eight one regarding an offense that occurred on October 2nd 1997
       given the fact that he was at that point in time still serving a four year sentence,
       according to this presentence report, that was imposed on May the 25th 1994.

               ...

               . . . And so, given this history the Court, based on its authority, resentences
       Mr. Linsey in case number four nine nine zero zero zero zero six, and the original
       eight year sentence that was imposed in that case is changed to a term of ten years,
       and he is ordered to serve that in confinement with the Department of Correction.

Impliedly, the trial court enhanced the Appellant’s sentence based upon enhancement factor (2), the
Appellant has a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish th appropriate range. Tenn. Code Ann. § 40-34-114 (2) (2003). The record
supports application of this factor. Not only does the Appellant’s record indicate a criminal history
prior to his placement in the Community Corrections Program, but since such placement he has


                                                -6-
continued to violate the law on numerous occasions. See State v. Dale Goodwin, No. W2001-0-212-
CCA-R3-CD (Tenn. Crim. App. at Jackson, Dec. 14, 2001), perm. to appeal denied, (Tenn. 2002)
(“[F]acts which have been developed between the time a defendant is initially sentenced to
community corrections, and the time that the sentence is subsequently revoked, may be considered
in applying enhancement factors and increasing a sentence”). When there are enhancement factors
and no mitigating factors, there is no presumptive sentence and the court may sentence above the
minimum in the range. Tenn. Code. Ann. § 40-35-210(d). Based upon the Appellant’s lengthy
criminal history, the trial court was clearly justified in imposing a sentence of ten years for
aggravated robbery.

B. Blakely v. Washington

        The Appellant amended his brief to argue that his sentences are excessive because the trial
court improperly applied enhancement factors in light of Blakely v. Washington, 542 U.S. ___, 124
S. Ct. 2531 (2004).2 First, any sentencing challenge available to the defendant under Blakely is now
waived because the defendant did not object at trial to what he now contends is a constitutionally
invalid sentencing scheme. Tenn. R. App. P. 36(a). In Blakely, the Supreme Court did not
pronounce a new rule of law. Rather, it only provided an explanation of the rule previously
expressed in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), with regard to the term
“statutory maximum.” Clearly, the defendant could have raised this issue under Apprendi at the trial
level as did the defendant Blakely; however, this was not done. In United States v. Cotton, 535 U.S.
625, 631-34, 122 S. Ct. 1781, 1785-87 (2002), the Supreme Court held, after its decision in
Apprendi, that the defendant’s claim of right to a trial and finding by a jury on a fact used to enhance
the defendant’s sentence was forfeited because it was not raised at trial. Moreover, the Supreme
Court has held

         (1) the Apprendi rule is not a substantive rule that alters the range of conduct or the
         class of persons that the law punishes; rather, it is a procedural rule that affects only
         the manner of determining the defendant’s culpability, and (2) the Apprendi rule is
         not a “watershed rule of criminal procedure” that implicates the fundamental fairness
         and accuracy of criminal proceedings.

People v. George Carl Sample, No. C044445 (Cal. Ct. App. Sept. 13, 2004) (quoting Schriro v.
Summerlin, __ U.S. __, 124 S. Ct. 2519, 2523-24 (2004)). Accordingly, the Blakely issue is waived.


         2
           W e are constrained to note that the Appellant argues that Blakely applies to all three of his felony convictions.
However, the Appellant was not resentenced for his convictions for aggravated burglary and theft; he was merely revoked
from his three-year sentences previously imposed pursuant to a plea agreement. Moreover, the Appellant was sentenced
to three years for aggravated burglary, the minimum sentence for a class C felony. Thus, any Blakely argument would
only apply to the increase in his sentence to ten years for aggravated robbery.

          Additionally, this case illustrates another facet of Blakely. To increase a defendant’s sentence following
revocation of a community corrections sentence now requires a personal waiver or a finding of prior criminal history
unless a jury is to be empaneled, which could potentially require a mini-trial of the original charge(s).

                                                            -7-
        Nonetheless, overwhelming evidence was presented at the resentencing hearing which
established that the Appellant had a prior criminal history, thus permitting application of enhancing
factor (2). See Tenn. Code Ann. § 40-35-114(2). As the Supreme Court stated in Apprendi and
reiterated in Blakely, the Sixth Amendment of the United States Constitution permits the fact of a
prior conviction to be used to increase a defendant’s sentence without that fact having been tried
before a jury and proved beyond a reasonable doubt. Blakely, 542 U.S. at __, 124 S. Ct. at 2537;
Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. The Appellant’s extensive record of prior
convictions, in our opinion, fully justifies a ten-year sentence.

                                         CONCLUSION

        Based upon the foregoing, we conclude that the trial court did not abuse its discretion in
ordering revocation of the Appellant’s community corrections sentences and resentencing him to ten
years for his aggravated robbery conviction. The judgment of the Montgomery County Circuit Court
is affirmed.



                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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