            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE               FILED
                             JULY 1998 SESSION



STATE OF TENNESSEE,           *     C.C.A. # 03C01-9708-CR-00366
                                                      September 22, 1998
             Appellee,        *     KNOX COUNTY

VS.                           *     Hon. Mary Beth Leibowitz, Judge
                                                       Cecil Crowson, Jr.
JAMES SMITH, a.k.a.           *     (Revocation of Community Corrections)
                                                         Appe llate Court C lerk
JAMES E. MAXWELL,
                              *
             Appellant.
                              *




For Appellant:                      For Appellee:

Mark E. Stephens                    John Knox Walkup
District Public Defender            Attorney General & Reporter
6th Judicial District
                                    Georgia Blythe Felner
Paula R. Voss                       Assistant Attorney General
Julia Auer                          Criminal Justice Division
Assistant Public Defenders          450 James Robertson Parkway
1209 Euclid Avenue                  Nashville, TN 37243-0493
Knoxville, TN 37921
                                    Randall Nichols
                                    District Attorney General
                                    and
                                    Leon Franks
                                    Assistant District Attorney General
                                    400 Main Avenue
                                    Knoxville, TN 37902




OPINION FILED:_____________________



AFFIRMED AS MODIFIED



GARY R. WADE, PRESIDING JUDGE
                                     OPINION

             The defendant, James Smith, a.k.a. James E. Maxwell, appeals the

trial court's revocation of his community corrections sentence. The following issues

have been presented for review:

             (I)   whether the trial court should have held a hearing
             before the revocation of his suspended sentence and
             imposition of greater sentences; and

             (II)    whether the judgment forms and orders reflect
             illegal sentences.

The judgment of revocation is affirmed; the sentences are modified as provided

herein.



             This appeal involves sentencing for three separate convictions. On

June 28, 1991, in case number 35815, the defendant was given a Range I, two-year

sentence to be served on probation for the attempted sale of a schedule II controlled

substance, a Class D felony. On September 2, 1992, probation on the two-year

term was revoked and the defendant was ordered to serve the full sentence in

custody, less credit for service of 105 days in jail. On December 22, 1992, the

Department of Correction placed the defendant on determinate probation pursuant

to Tenn. Code Ann. § 40-35-501.



             While out on determinate probation for the two-year sentence, the

defendant incurred additional charges. On December 8, 1993, in case number

47804, he received a Range I, eight-year sentence in TDOC for possession of

cocaine with intent to sell, a Class B felony; the sentence was suspended and he

was placed on community corrections for eleven years. On the same date, in case

number 49817, he received a Range I, three-year sentence for sale of less than

one-half gram cocaine, a Class C felony; the sentence was suspended and he was


                                          2
placed on community corrections for eleven years. The three year sentence was to

be served consecutively to the eight-year sentence.1



              Revocation warrants were eventually filed for all offenses. On July 21,

1995, the trial court held a brief hearing; no proof was presented. Apparently, the

defendant conceded that the terms of the alternative sentences had been violated.

The state and the defense appear to have agreed that the trial judge should revoke

the alternative sentences and then increase the term, as long as the defendant was

not ordered to serve any time in custody. The trial court asked the defendant, "You

... understand I intend to increase your sentence significantly now; so that, if you do

fail, you are going to spend some time in the penitentiary." The defendant

responded, "A whole lot, yes." The trial court then ruled from the bench as follows:

                      Here is what I have got. I have an eight-year
              sentence and a B felony. So that can be increased to up
              to twelve years as a range I offender and a three-year
              sentence in 49817, which is a C felony and increase that
              to six years, for a total sentence of eighteen years.
                      Now, I do not know how to deal with this pending
              determinate probation, because that was not figured in
              when we originally put Mr. Maxwell on C.A.P.P. in these
              cases. ... I am going to put him on C.A.P.P. for two


       1
         The judgments of conviction entered in the defendant's latter two cases
reflect conflicting sentences. Read literally, the judgments reflect that the trial court
imposed sentences to the Department of Correction, suspended those sentences,
and placed the defendant in the community corrections program for a term of years.
This looks as if the trial court gave the defendant probation and made supervision
under the community corrections program a condition of that probation. See Tenn.
Code Ann. § 40-36-106(f). If that were so, the trial court would not have retained
the power to change the length of the sentences as originally imposed.

However, the record on appeal, including the judgments of conviction, reflect that
the trial court intended to impose community corrections sentences pursuant to
Tenn. Code Ann. § 40-36-106(e)(1), instead of making the program a condition of
probation pursuant to Tenn. Code Ann. § 40-36-106(f). With a community
corrections sentence, though, the trial court does not also impose a term of years for
service in the penitentiary or local jail that is then suspended. Any sentence so
imposed, including its length, is essentially a nullity and recording it in the judgment
of conviction is superfluous. The length of time the defendant serves in the
community corrections program is the only sentence to be imposed.

                                            3
             years in this case, also, and run that C.A.P.P. time
             concurrent.... [H]is effective C.A.P.P. sentences is
             eighteen years.
             The court also entered a written order on that date:

             [I]n case no. 35815, the defendant's State Probation ... is
             ... revoked; and the defendant placed on CAPP for
             eighteen (18) years to expire July 21, 2013. In case no.
             47804, the defendant's CAPP revoked, sentence
             increased from eight (8) years to twelve (12) years,
             however, the defendant is placed back on CAPP for
             eighteen (18) years to expire July 21, 2013. In case no.
             49817, the defendant's CAPP revoked, sentence
             increased from three (3) years to six (6) years, however,
             the defendant is placed back on CAPP for eighteen (18)
             years to expire July 21, 2013.



             Sometime later, on January 6, 1997, another revocation warrant was

filed. At the revocation hearing, Tamela Wheeler, who supervised the defendant on

C.A.P.P., testified that the defendant had absconded and that she had no contact

from May 1996 until January 1997.



             The trial court concluded that the defendant had violated the terms of

his community corrections sentence. Rather than ruling at the conclusion of the

hearing, however, the trial judge opted to review the transcript of the 1995 hearing

to make certain that the defendant had understood his sentence was to be

increased to an effective term of eighteen years. At a second hearing one month

later, defense counsel argued that at the 1995 hearing, where the sentences were

increased, the defendant was not advised of his right to insist on a sentencing

hearing and the right to appeal. The trial judge ruled as follows:

              It is clear ... to this Court that Mr. Maxwell violated the
              terms of his C.A.P.P. ... There is no question in my mind
              that based upon this transcript and my memory ... that
              Mr. Maxwell understood that I intended to revoke him.
              But he took the eighteen year sentence because he
              wanted to get out. ... It may not be equitable, but this
              isn't a court of equity. And it may not be fair, and
              perhaps we have not held the hearings that the law

                                           4
              requires of us. ... However, I think that it's pretty clear
              that there was a hearing, that there was an agreement,
              that Mr. Maxwell understood the agreement, that Mr.
              Maxwell understood because he had already been
              revoked and sent to the penitentiary and put out on
              determinate probation in one of the cases, what he had
              to do and he didn't do it. ... So I don't think I really have
              a choice but to revoke Mr. Maxwell. And I don't think I
              have a choice right now but to revoke him at the eighteen
              year sentence that he agreed to.



              On that same day, the trial court entered three separate orders

revoking community corrections for each offense and ordering judgment to be

executed. The order on the two-year sentence provides as follows:

              [T]he defendant's CAPP is ... revoked and the original
              judgment of this Court on June 28, 1991 is put into full
              force and effect. Defendant ... is to receive ... a
              combined total credit of eight hundred and eight (808)
              days, sentence to begin January 1, 1995.

The order on the twelve-year sentence, which originally was an eight-year sentence,

provides as follows:

              CAPP is hereby revoked and the original judgment of this
              Court on December 8, 1993 is put into full force and
              effect, along with the revocation of July 21, 1995
              increasing the defendant's sentence from eight (8) to
              twelve (12) years.

The order on the six-year sentence, which was originally a three-year term, provides

as follows:

              CAPP is hereby revoked and the original judgment of this
              court on December 8, 1993 is put into full force and
              effect, along with the revocation of July 21, 1995,
              increasing the defendant's sentence from three (3) to six
              (6) years.



              Trial courts have authority to revoke a community corrections sentence

based upon the conduct of the defendant. Tenn. Code Ann. § 40-36-106(e)(3). A

trial judge's decision to revoke a defendant's release on community corrections


                                           5
should not be disturbed unless there is an abuse of discretion. State v. Harkins, 811

S.W.2d 79, 82 (Tenn. 1991). In order to find an abuse of discretion, it must appear

that the record contains "no substantial evidence to support the conclusion of the

trial judge that a violation of the conditions ... occurred." Id.



                The same principles applicable to a probation revocation are relevant

to the revocation of community corrections. Id. at 83. The trial judge is not required

to find that a violation of the terms of probation has occurred beyond a reasonable

doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). Rather, the

existence of a violation of probation need only be supported by a preponderance of

the evidence. Tenn. Code Ann. § 40-35-311(d).



                The defendant concedes he violated the terms of his community corrections sentence

and does not contest the revocation. Instead, he complains that the trial court erred by increasing his

sentence without a hearing and that the orders reflect illegal sentences.



                                                    I

                On July 21, 1995, the trial court increased the eight-year sentence to twelve years and

the three-year sentence to six years. The trial court did so without having received any proof and

without making reference to any of the sentencing principles of the 1989 Act. The defendant argues

that because the trial judge failed to conduct an appropriate hearing before increasing the sentences,

the case should be remanded "for further proceedings which conformwith the [defendant's] rights to

due process of law."



                The tim for appealing the order entered on July 21, 1995, has long since passed.
                       e

The defendant had thirty days to file a notice of appeal. Tenn. R. App. P. 4(a). The tim filing may
                                                                                        ely

be waived "in the interest of justice." Id. Under the circumstances, however, w are not inclined to do
                                                                               e

                                                   6
so. The defendant agreed to the increase in sentence. At the hearing, defense counsel stated to the

trial court:

                 I think that you were going to add additional time to his sentence.
                 That was one of the conditions of releasing him, and that is w M
                                                                                hat r.
                 Maxwell wants to do. So I amgoing to ask that you do that.

Clearly, the defendant agreed to the additional time, in exchange for not being placed in custody after

the revocation. It is only because he now has to actually serve the agreed upon sentence that he

complains.



                 When a community corrections sentence is revoked, the trial court m increase the
                                                                                    ay

sentence. Tenn. Code Ann. § 40-36-106(e)(4); State v. Griffith, 787 S.W.2d 340 (Tenn. 1990). The

increases fromeight to twelve years and from three to six years are both within the statutorily

permissible range. Generally, before the trial court increases the sentence, a sentencing hearing

should be held. State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996). Nonetheless, it is

apparent the sentences were the product of negotiations. There are no circumstances here which

would warrant the review of a judgment which becam final three years ago.
                                                  e



                                                    II

                 The defendant next complains that he is either being forced to serve an illegal

sentence or that the written orders contain clerical errors. In our view, the written orders contained in

the record do contain errors which should be corrected.



                 The defendant's first complaint concerns the two-year sentence he received in 1991.

He complains that "nowhis sentence appears to be eighteen years in the state penitentiary." The

written order entered on July 21, 1995, does provide that "the defendant is placed ... on CAPP for

eighteen (18) years ...." The written order entered on March 20, 1997, however, provides "the original

judgm of this Court on June 28, 1991 is put into full force and effect." Also, the transcript of the
     ent

hearing held in 1995 provides that he was to serve two years on C.A.P.P. concurrent with his other

                                                    7
sentences. The state agrees "that the defendant's two (2) year sentence in case number 35815 was

not increased."



                  The trial court is without authority to order an eighteen-year community corrections

sentence for a Range I offender convicted of a Class D felony. Tenn. Code Ann. § 40-36-106(e)(2);

Tenn. Code Ann. § 40-35-112. When imposing a community corrections sentence, "the court shall

possess the power to set the duration of the sentence ... at any period of time up to the maximum

sentence within the appropriate sentence range." Tenn. Code Ann. § 40-36-106(e)(2) (emphasis

added). Thus, the order entered on July 21, 1995, is modified to reflect a concurrent two-year termon

C.A.P.P. for case num 35815. The order entered on March 20, 1997, is also m
                     ber                                                   odified to reflect a

concurrent two-year term on C.A.P.P. for case number 35815.



                  The defendant also complains that the judgment forms in cases 47804 and 49817 are

erroneous. He points out that the original judgment forms provided for sentences of eight years and

three years, to be served consecutively. Yet the original judgment forms also provide for an eleven-

year term on C.A.P.P. for each sentence. He claims the judgment form "appear[] to require himto
                                                                    s

serve 22 years in the CAPP program and that this error w carried over to the orders entered on July
                                  "                     as

21, 1995 and March 20, 1997. The state agrees that the written orders should be modified. Because

the trial court is without authority to order an eighteen-year community corrections sentence for either

of the Range I Class B or C felonies, we agree the orders should be modified to reflect a sentence of

twelve years in case number 47804 and six years in case num 49817. See Tenn. Code Ann. § 40-
                                                           ber

36-106(e)(2). Thus, the orders are modified to reflect that the six-year term is to be served

consecutively to the twelve-year term.



                  Accordingly, the judgm of the trial court is affirmed. The sentences are modified as
                                        ent

provided in this opinion. See Tenn. R. Crim. P. 36.



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                                  __________________________________
                                  Gary R. Wade, Presiding Judge

CONCUR:



______________________________
Joseph M. Tipton, Judge



_______________________________
David H. Welles, Judge




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