                                                                                         01/17/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs November 16, 2016 at Knoxville

            STATE OF TENNESSEE v. JACKIE PHILLIP LESTER

                 Appeal from the Circuit Court for Lawrence County
                        No. 32698 J. Russell Parkes, Judge
                     ___________________________________

                           No. M2016-00700-CCA-R3-CD
                       ___________________________________


Defendant, Jackie Phillip Lester, pled guilty to aggravated assault and possession of a
firearm after having been convicted of a felony. He was sentenced to six years, suspended
to probation. Defendant violated probation, and the trial court ordered a partial
revocation of the probationary sentence and service of eighteen months in incarceration.
Defendant was released from incarceration and violated probation for the second time
shortly thereafter. This time the trial court revoked Defendant’s probation, ordering him
to serve the original six-year sentence. The trial court awarded Defendant credit for time
served during the partial revocation and prior to sentencing on the full revocation. On
appeal, Defendant complains that the trial court did not award him all his due jail credit.
Because the proper method to address post-judgment jail credit is through the Uniform
Administrative Procedures Act rather than an appeal to this Court, we affirm the
judgment of the trial court. However, we remand the case for the correction of a clerical
error in the revocation order.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., J., joined. D. KELLY THOMAS, JR., J., filed a dissenting opinion.

Brandon E. White, Columbia, Tennessee (on appeal); Claudia Jack, District Public
Defender; and R. H. Stovall, Jr., Assistant Public Defender (at hearing), for the appellant,
Jackie Phillip Lester.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Brent Cooper, District Attorney General; and Christi Thompson, Assistant
District Attorney, for the appellee, State of Tennessee.
                                               OPINION

       Defendant was indicted in the fall of 2014 by the Lawrence County Grand Jury for
attempted first degree murder and unlawful possession of a firearm with the intent to go
armed. He eventually pled guilty to aggravated assault and possession of a firearm after
having been convicted of a felony. He received a three-year sentence for each conviction
on March 9, 2015. The sentences were ordered to be served consecutively to each other,
and the trial court ordered the sentences to be served on supervised probation.

        On May 15, 2015, Defendant was arrested for driving under the influence, failure
to stop at a stop sign, and having an improper address on his driver’s license. A
probation violation warrant was filed, alleging Defendant had violated the terms and
conditions of his probation because of his arrest as well as for failure to pay court costs,
fines, and restitution.

       Defendant was arrested and the trial court ordered a partial revocation of his
probationary sentence on July 23, 2015. He was ordered to serve eighteen months in the
county jail, with credit for time served between June 4, 2015, and July 23, 2015.
Defendant was released on December 21, 2015.

        A second probation violation warrant was filed on February 9, 2016, alleging that
Defendant had been arrested for unlawfully carrying or possessing a weapon. The
warrant additionally alleged that Defendant had failed to pay fines, court costs, and
restitution.1 At the conclusion of a hearing on March 15, 2016, the trial court determined
that Defendant had violated the terms and conditions of probation and ordered full
revocation of Defendant’s probationary sentence. At the hearing, Defendant argued that
he was entitled to credit for the entire eighteen-month period he was ordered to serve
following the partial revocation, not just the time he actually served. The trial court
continued the matter to March 31, 2016, to allow Defendant additional time to “get
someone from the jail up to testify about the sentencing credits” Defendant was due for
the time he served on the partial revocation.




        1
          There appears to be several clerical errors on the Probation Violation Report. It lists violations
of “Rule #1,” “Rule #3,” and “Rule #9,” giving the text of each probationary rule and the manner in
which the rule was violated. According to the report, Rule #3 and Rule #9 both state: “I agree to pay all
required fees to the Supervision and Criminal Injuries fund unless waived by appropriate authorities.
Additionally, if so ordered by the Court, I will pay all imposed fines and court costs.” The violation of
Rule #3 is listed as follows: “Subject was arrested on 2/7/16 for Unlawful Carrying or Possession of a
Weapon.” This mistake is repeated again in the affidavit accompanying the report. The probation rule
violations actually indicate that Rule #3 states the following: “I will not receive, own, possess, ship, or
transport any firearms, ammunition, or illegal weapon(s).”
                                                    -2-
        At the hearing on March 31, the trial court heard testimony from Lieutenant Jamie
Mahar, who was employed as the jail administrator for the Lawrence County Sheriff’s
Department. He testified that Defendant entered the county jail on June 4, 2015, and was
released on December 21, 2015, after serving 200 days. While in the county jail,
Defendant received “statutory good time” or “behavior credits” of 126 days and also
received work credit. When all of these credits were applied to the eighteen-month
partial revocation, Defendant received early release before being restored to probation.
In other words, application of the credits shaved approximately seven months off of the
eighteen-month sentence. In Lieutenant Mahar’s experience, the Tennessee Department
of Correction (“TDOC”) did not accept county jail behavior or work credits toward a
partial-revocation sentence. Defendant was also incarcerated from February 7, 2016, to
March 31, 2016, on the second violation warrant. On March 31, 2016, the trial court
entered a revocation order imposing the original six-year sentence, effective “3-15-15”2
with credit for time served from “6/4/15 to 12/21/15” and “2/7/16 to 3/31/16.”

        Defendant filed a timely notice of appeal.

                                                Analysis

        On appeal, Defendant does not challenge the revocation of probation and
implementation of his six-year sentence. Counsel for Defendant acknowledges that
controlling law is diametrically opposed to his position but, in the spirit of zealous
advocacy, argues that the trial court improperly concluded that it could only award jail
credit for time actually served in the county jail during the time Defendant spent
incarcerated on the eighteen-month partial revocation of his probation. The State insists
that the “role of calculating post-judgment jail credit belongs to TDOC and not to the trial
court” and that Defendant is not entitled to relief.

       When a defendant receives a sentence, the trial court “shall” note on the judgment
any credit a defendant is entitled to

        for any period of time for which the defendant was committed and held in
        the city jail . . . , or county jail or workhouse, pending arraignment and trial.
        The defendant shall also receive credit on the sentence for the time served
        in the jail, workhouse, or penitentiary subsequent to any conviction arising
        out of the original offense for which the defendant was tried.



        2
          This appears to be a clerical error and should read “3-15-16” as it would be impossible for
Defendant to be revoked from probation prior to the time he committed the alleged violations. On
remand, the trial court should correct the revocation order to reflect the sentence effective date of March
15, 2016.
                                                    -3-
T.C.A. § 40-23-101(c). TDOC is tasked with “calculating the sentence expiration date
and the release eligibility date of any felony offender sentenced to the department and
any felony offender sentenced to confinement in a local jail or workhouse for one (1) or
more years.” T.C.A. § 40-35-501(r);3 see also T.C.A. § 40-28-129 (stating TDOC “shall
be responsible for calculating the sentence expiration date and the earliest release date of
any felony offender sentenced to the department of correction and any felony offender
sentenced to confinement in a county jail or workhouse for one (1) or more years”). In
this case, because Defendant was detained in the local jail prior to his sentencing, the
local sheriff was required to submit a report to the TDOC that included information
“pertaining to the defendant’s behavior while in local custody.” T.C.A. § 40-23-113.

       Defendant acknowledges that “[t]he proper avenue to address post-judgment jail
credit for prisoners is through the TDOC administratively,” yet he insists that his due
process rights have been violated because the good behavior credits he received have
vanished. This argument is without merit for a number of reasons, including the fact that
what may have been good behavior has in fact turned to bad.

       Further, this Court has previously noted that while a trial court can award pretrial
jail credits, sentence reduction credits “are governed solely by the Department of
Correction.” Yates v. Parker, 371 S.W.3d 152, 156 (Tenn. Crim. App. 2012) (concluding
that “claims for post-judgment jail credit are not cognizable habeas corpus claims”).
Thus, Defendant is not entitled to relief in this Court. In this Court’s view, once
Defendant violated his probation, his sentence is placement in a penal facility for 2,190
days (six years) with credit for pre-judgment incarceration time.

       Moreover, the record on appeal does not contain any documentation from the
TDOC to indicate a calculation of Defendant’s sentence and, therefore, no documentation
that Defendant has indeed been denied the credit he claims he deserves. Consequently,
there is nothing for this Court to review. The proper avenue to seek review of the
calculation of a prisoner’s sentence is through the Uniform Administrative Procedures
Act, not an appeal to this Court. See T.C.A. §4-5-101, et. seq.

       For the foregoing reasons, the judgment of the trial court is affirmed and remanded
for correction of the revocation order.


                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE


       3
          There is an amendment to this statute effective January 1, 2017, but the amendment does not
apply to section (r).
                                                 -4-
