         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 1, 2005

                STATE OF TENNESSEE v. BRANDON S. MOORE

                 Direct Appeal from the Criminal Court for Sumner County
                          No. 370-2000    Jane Wheatcraft, Judge



                    No. M2004-01731-CCA-R3-CD - Filed March 17, 2005


The defendant appeals the sentence he received after a violation and revocation of his community
corrections sentence. On appeal, the defendant contends that the sentence issued was illegal.
Following our review, we affirm the sentence imposed by the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER , JJ., joined.

Brandon S. Moore, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General; and Sallie W. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                    Facts and Procedural History

       The defendant, Brandon S. Moore, was indicted on two counts of aggravated robbery (a Class
B felony) and one count of aggravated assault (a Class C felony). Pursuant to a plea agreement, the
defendant pled guilty to two counts of the lesser included offense of facilitation of aggravated
robbery (a Class C felony) and one count of aggravated assault. On November 14, 2000, the
defendant was sentenced as a Range I, standard offender to five years on each facilitation charge and
three years for aggravated assault. The sentences for facilitation were ordered to be served
concurrently, and the aggravated assault sentence ran consecutively, for an effective sentence of eight
years. The defendant was further ordered to serve the first year of the sentence “day-for-day,” with
the remainder to be served on community corrections.1

        Thereafter, the defendant was found to have violated the terms of community corrections.
A hearing was held on September 17, 2001, regarding the violation, and the defendant was released
to time served and was returned to community corrections. Following a second violation of
community corrections in November 2001,2 the defendant was resentenced, pursuant to the
Tennessee Community Corrections Act of 1985, to six years on each facilitation charge and four
years on the aggravated assault charge. The two facilitation charges were again ordered to be served
concurrently, while the aggravated assault charge was run consecutively, for a total effective
sentence of ten years. The resentencing order was entered on December 18, 2001.

        On March 8, 2004, the defendant filed a pro se motion to withdraw his guilty plea, claiming
that the trial court violated the terms of the original plea agreement and that the court did not have
jurisdiction to issue sentences greater than those originally imposed. The motion was summarily
denied by the trial court three days later. On May 11, 2004, the defendant filed a “motion for status
of the case,” to which the trial court filed an order in reply. In that order, the court recited the action
taken on the case and reiterated that the defendant’s motion to withdraw his plea was “not only
without merit but time-barred as well.” The defendant filed a notice of appeal on July 6, 2004. On
appeal, the defendant argues that the sentences issued in December 2001 were illegal because:
        1) the court was without jurisdiction or authority to issue the sentences from the
            beginning because Tennessee law prohibits consecutive sentences of community
            corrections and/or probation for a defendant convicted of a felony while on
            probation;
        2) the court errantly sentenced the defendant to greater sentences than those
            originally imposed; and
        3) the court imposed the sentences, which were not a part of the original plea
            agreement, without the consent of the defendant.

                                                           Analysis

            This court’s review of the sentence imposed by the trial court is de novo with a
presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned
upon an affirmative showing in the record that the trial judge considered the sentencing principles
and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the
trial court fails to comply with the statutory directives, there is no presumption of correctness and
our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

      The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are

         1
            The propriety of sentencing the defendant to community corrections in light of the nature of the offenses is
not an issue before this Court on appeal.
          2
            The record indicates that the defendant pled guilty to the second violation.

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required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:
                (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2)
        [t]he presentence report; (3) [t]he principles of sentencing and arguments as to
        sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct
        involved; (5) [e]vidence and information offered by the parties on the enhancement
        and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
        defendant wishes to make in the defendant’s own behalf about sentencing.

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C,
D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       A court may also consider the mitigating and enhancing factors set forth in Tennessee Code
Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations.
Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
Additionally, a court should consider the defendant’s potential or lack of potential for rehabilitation
when determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5);
Boston, 938 S.W.2d at 438.

        There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case
basis, tailoring each sentence to that particular defendant based upon the facts of that case and the
circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

        The defendant initially contends that the trial court was without jurisdiction or authority to
issue consecutive community corrections sentences because he was convicted of a felony while on
probation. However, the defendant fails to cite any authority in support of this proposition;
therefore, this issue is deemed waived on appeal. Tenn. Ct. Crim. App. R. 10(b); State v. Schaller,
975 S.W.2d 313, 318 (Tenn. Crim. App. 1997).




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        Next, the defendant argues that the trial court erred in issuing greater sentences than those
originally imposed. However, Tennessee Code Annotated section 40-36-106 speaks to the trial
court’s authority to revoke the previous sentence and resentence the defendant:
        The court shall also possess the power to revoke the sentence imposed at any time
        due to the conduct of the defendant or the termination or modification of the program
        to which the defendant has been sentenced, and the court may 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, less
        any time actually served in any community-based alternative to incarceration.
Tenn. Code Ann. § 40-36-106(e)(4) (2004) (emphasis added). In the present case, both conviction
offenses are Class C felonies, which have Range I penalties of between three and six years.
Therefore, the trial court could have resentenced the defendant to a maximum effective sentence of
twelve years.

         The record reflects that, following two community corrections violations, the defendant’s
original sentence was revoked and he was resentenced to concurrent six-year sentences on the
facilitation charges and a consecutive four-year sentence on the aggravated assault conviction, for
an effective sentence of ten years. Further, the trial court noted that the defendant was to receive
credit for time served and noted that time in the order issued in December 2001. We conclude that
the trial court resentenced the defendant within the appropriate range and gave him credit for time
served; therefore, the defendant’s sentences were issued in compliance with the applicable statutory
authority and were not illegal.

        In the defendant’s final argument, he contends that the trial court was without authority to
sentence him to a term that was not a part of the original plea agreement without his consent.
However, as aforementioned, the conduct of a defendant is one basis upon which the trial court may
revoke a community corrections sentence and “resentence the defendant to any appropriate
sentencing alternative,” which includes incarceration for any length of time up to the maximum
penalty provided for the offense committed less time served. Therefore, when the defendant pled
guilty to violating the conditions of his community corrections sentence, he effectively lost the
benefit of his plea agreement and became subject to the court’s discretion in resentencing. Further,
we have previously concluded that the court properly revoked and resentenced the defendant.

                                            Conclusion

       We affirm the sentences imposed by the trial court.




                                                 __________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE


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