             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE              FILED
                           JUNE 1998 SESSION
                                                        October 2, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 03C01-9707-CC-00311
             Appellee,           )
                                 )    BLOUNT COUNTY
VS.                              )
                                 )    HON. D. KELLY THOMAS, JR.,
KENNETH W. ERVIN,                )    JUDGE
                                 )
             Appellant.          )    (Resentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:


MACK GARNER                           JOHN KNOX WALKUP
District Public Defender              Attorney General & Reporter
419 High St.
Maryville, TN 37804                   JANIS L. TURNER
                                      Asst. Attorney General
                                      John Sevier Bldg.
                                      425 Fifth Ave., North
                                      Nashville, TN 37243-0493

                                      MIKE FLYNN
                                      District Attorney General

                                      EDWARD P. BAILEY, JR.
                                      Asst. District Attorney General
                                      363 Court St.
                                      Maryville, TN 37804




OPINION FILED:____________________



REVERSED AND REMANDED


DAVID G. HAYES,
Judge
                                                  OPINION



        The appellant, Kenneth W. Ervin, appeals the sentences imposed by the Blount

County Circuit Court following revocation of his Community Corrections sentences.

The appellant’s placement in the Community Corrections program stemmed from his

guilty pleas to three class C felonies. This appeal is before this court from a previous

remand of the sentencing hearing following revocation. Upon remand, the trial court

increased the term imposed for each of the multiple sentences by one year and

modified the previously ordered concurrent sentences to reflect that they be served

consecutively. In this appeal, the appellant contends (1) that the trial court erred in

increasing his sentences by one year; (2) that the trial court erred in ordering his

sentences to run consecutively; and (3) that, because the plea agreement violated

mandatory consecutive sentencing requirements, he should have been allowed to

withdraw his guilty pleas.



        After review of the record before us, we reverse and remand this case to the trial

court for further proceedings consistent with this opinion.



                                                Background



        In 1994, the appellant was arrested on one count of aggravated burglary in case

number C-8088. While on bail for this offense, he was arrested on another count of

aggravated burglary (C-8252) and one count of theft of property valued over ten

thousand dollars (C-8253). 1 The record indicates that in May 1994, the appellant




        1
           The a ppellant w as also c harged with two co unts of th eft unde r $500, o ne cou nt of attem pt to
com mit agg ravated burglary, an d one c ount of the ft over $10 00. See State v. Erv in, 939 S.W.2d 581,
582-582 (Tenn. Crim. App. 1996). However, these charges and their resulting sentences are not at
issu e in this appe al.

                                                       2
entered guilty pleas to each of the three counts and, pursuant to a plea agreement,2

was sentenced to four years on each count, to be served concurrently. Each of the

four year sentences were ordered to be served in the Community Corrections program,

preceded by one year in the county jail.



        After completing his time in the county jail, the appellant was released into the

Community Corrections program. Shortly thereafter, April 1995, the appellant violated

the behavioral conditions of his Community Corrections contract. On May 30, 1995,

the trial court revoked his Community Corrections sentence and, at resentencing,

increased his sentences from four to five years in the Department of Corrections, with

credit for all time served. The appellant appealed this sentencing decision to this court.

On appeal, this court affirmed the revocation of the appellant’s Community Corrections

sentence. See Ervin, 939 S.W.2d at 582. However, because this court found the trial

court’s findings incomplete and insufficient to conduct a de novo review, this court

remanded this case to the trial court for a new sentencing hearing. Ervin, 939 S.W.2d

at 582, 584.



        On March 20, 1997, a rehearing was held. Neither party presented any

sentencing evidence to supplement that which already appeared in the case file; both

relying on the proof previously introduced. At this hearing, the trial court noted,

following reexamination of the sentencing proof in the record, that the appellant’s

previous sentence was illegal because Tenn. R. Crim. P. 32(c)(3)(C) (felony committed

while defendant released on bail) mandates that the terms should have been


         2
          The trial court’s statements at the resentencing hearing suggest that, at the time the initial
pleas were entered, the plea agreement was based upon the recommendation of a specific sentence,
pursuant to Tenn. R. Crim. P. 11(e)(1)(C). Because a transcript of the initial plea hearing was not
includ ed in th e rec ord a nd be cau se th e cou rt faile d to e nter s pec ific find ings on th is iss ue, w e are unab le
to reach such a conclus ion for pur poses of this app eal. More over, the “O rder Ac cepting P lea of G uilty,”
which is inc luded in the record, p rovides “th e Cou rt is to hear th e eviden ce and fix punish men t. . . ,”
app ears incon siste nt with the c ourt’s state me nt tha t the in itial plea was ente red p ursu ant to a spe cific
sentence, Tenn. R . Crim. P. 11(e)(1)(C).

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consecutive and not concurrent. The trial judge also noted that the appellant’s initial

sentence was entered pursuant to a plea agreement, and, on the second occasion, the

court’s resentencing of the appellant was based upon the State’s recommendation of

five years. As such, the trial judge noted that this was the first time that the court had

weighed all of the evidence and looked at the enhancing and mitigating factors in this

case. After review of the applicable sentencing factors and after acknowledgment of

Tenn. R. Crim. P. 32(c)(3)(C), the trial court modified the sentence by increasing the

sentences from five to six years on each count, the maximum in the range, and

ordered them to run consecutively, for an effective sentence of twelve years.



                      I. Consecutive Sentencing/ Illegal Sentences



         At the rehearing, the trial court found that two felonies were committed while the

appellant was released on bail. Clearly, the appellant’s sentence is subject to being

vacated because the sentence violates Tenn. R. Crim. P. 32(c)(3)(C). State v.

Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). Rule 32(c)(3)(C) provides that if a

person commits a felony while on bail for another offense and the person is convicted

of both offenses, the two sentences are required to be served consecutively. The rule

makes the manner of serving the sentences compulsory, regardless of what the

judgment might recite. In other words, the manner of serving the sentences is non-

negotiable, and the provisions of the rule cannot be altered by a plea agreement. See

State v. Connors, No. 03C01-9506-CC-00176 (Tenn. Crim. App. at Knoxville, Dec. 17,

1996).



         Because the statute mandates consecutive sentencing in such a situation, the

trial court erred in ordering the sentences to be served concurrently. A court is with the

authority to correct an illegal sentence at any time, even if it has otherwise become


                                              4
final. Burkhart, 566 S.W.2d at 873. However, in the present case, the convictions

were based upon a negotiated plea agreement. Thus, if the plea agreement was

conditioned upon the concurrent service of the sentences, the State could not legally

fulfill its part of the plea agreement. As previously noted, we are unable to determine

from the record before us whether the appellant’s guilty pleas were so conditioned.

Moreover, no findings as to this issue were entered by the trial court at the hearing on

remand. This court may not act as a factfinder as our jurisdiction is appellate only and

is limited to review of the final judgments of trial courts. Tenn. Code Ann. §

16-5-108(a). Accordingly, this cause must be remanded to the trial court for a

determination of whether the appellant’s guilty pleas were entered contingent upon his

receiving concurrent sentences.



       Upon remand, if the trial court determines that the plea bargain was conditioned

upon the imposition of concurrent sentences, the appellant is entitled to withdraw his

guilty pleas. Burkhart, 566 S.W.2d at 873. In the event that the appellant elects to

proceed to trial and is convicted of both offenses, the sentences imposed must be

served consecutively. However, if the trial court determines that the appellant’s guilty

pleas were not, in any degree, conditioned upon the concurrent service of the

sentences, the court has the authority to correct the illegal sentences and should do

so.



                                II. Length of Sentences



       Although our ruling in this appeal renders the appellant’s remaining issue as to

the length of the sentences premature, we elect to proceed with our review to further

prevent unnecessary and protracted litigation of this remaining issue. If the trial court

determines that the appellant’s pleas were not conditioned upon the concurrent service


                                            5
of his sentences, the issue remains whether the trial court’s increase of the appellant’s

sentences from five to six years was proper.



      Again, four year sentences were originally imposed. After revocation from the

Community Corrections program, the trial court increased the sentences from four to

five years. On appeal, this court remanded the case because the trial court failed to

enter findings of fact on the record. Upon remand, the trial court again increased the

appellant’s sentences, from five to six years. The appellant concedes that the five year

sentences were proper; however, he contends that the six years sentences are

excessive.



       When the length of sentence is challenged on appeal, this court conducts a de

novo review conditioned upon the presumption that the determination made by the trial

court is correct. Tenn. Code Ann. § 40-35-201(d) (1990). This presumption only

applies, however, if the record demonstrates that the trial court properly considered

relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In

the case before us, the trial court considered relevant sentencing principles; thus, the

presumption applies. Moreover, this court may only modify a sentence if the sentence

is excessive or the manner of service is inappropriate. State v. Russell, 773 S.W.2d

913, 915 (Tenn. 1989). On appeal the appellant bears the burden of showing that the

sentence imposed was improper. Sentencing Commission Comments, Tenn. Code

Ann. § 40-35-401(d)(1990).



      In increasing the appellant’s sentences, the trial court applied three

enhancement factors: (1) the appellant has a previous history of criminal convictions,

Tenn. Code Ann. § 40-35-114(1) (1994 Supp.); (8) the appellant has a previous history

of unwillingness to comply with the conditions of a sentence involving release in the


                                            6
community, Tenn. Code Ann. § 40-35-114(8); and (3) the offense involved more than

one victim, Tenn. Code Ann. § 40-35-114(3). The court found no applicable mitigating

factors.



       No new evidence was presented at the remand sentencing hearing. The

presentence report indicates that the appellant has prior convictions for burglary and

several misdemeanors. The appellant has also repeatedly violated the conditions of

prior sentences involving release in the community. Thus, the trial court properly

enhanced the appellant’s sentences on the basis that he has a previous history of

criminal convictions and has shown an unwillingness to comply with the conditions of a

sentence involving release in the community.



       The trial court also found that “[t]wo of these offenses [the burglaries] involve

more than one victim.” The victim impact statements reflect that one of the families,

whose home was burglarized by the appellant, had young children. The children are

afraid to go in their homes at night before their parents go through the house and they

“won’t sleep in their own beds and are terrified to go in their home.” To properly apply

this factor in enhancing a sentence for aggravated burglary, more than one victim must

be present at the time the crime was committed. See State v. Wilson, No. 01C01-

9602-CC-00073 (Tenn. Crim. App. at Nashville, Jul. 31, 1997), perm. to appeal denied,

(Tenn. Apr. 20, 1998) (citing State v. Denton, No. 02C01-9409-CR-00186 (Tenn. Crim.

App. at Jackson, Aug. 2, 1996); Register v. State, No. 01C01-9210-CC-00329 (Tenn.

Crim. App. at Nashville, Aug. 12, 1993), perm. to appeal denied, (Tenn. Dec. 28,

1993)). In the case before us, there is no proof to show that any of the victims were

present at the time of the burglary. Additionally, only one count of aggravated burglary,

C-8252, is supported by evidence showing that more than one person was victimized

by the appellant. Thus, it was error for the trial court to apply this enhancing factor.


                                             7
       The sentencing range for the appellant, a Range I standard offender, for the

crimes committed, which were class C felonies, is three to six years. See Tenn. Code

Ann. § 40-35-112(a)(3) (1990). When there are enhancement factors and no

mitigating factors, the trial court may set the sentence above the minimum within the

applicable sentencing range, but still within the range. Tenn. Code Ann. § 40-35-

210(d) (1990). Beginning with the presumptive minimum sentence, the trial court must

then "enhance the sentence within the range as appropriate for the enhancement

factors, and then reduce the sentence within the range as appropriate for the mitigating

factors." Id. Again, the trial court found, and we agree, that enhancement factors (1)

and (8) and no mitigating factors are applicable. However, we have determined that

factor (3) is not supported by the proof in the record and is, therefore, inapplicable. In

view of our finding that the trial court misapplied one enhancing factor, modification of

the maximum sentence is necessary. 3 Upon de novo review, after weighing the two

applicable enhancement factors found, we conclude that a sentence of five years on

each conviction is justified.



       Accordingly, this case is remanded to the trial court for a determination of

whether the appellant’s guilty pleas were conditioned upon the concurrent service of

his sentences. If the court finds that the pleas were so conditioned, the appellant shall

be given the opportunity to withdraw his guilty plea and either enter into a new

agreement or proceed to trial. However, if the concurrent aspect of the sentences was

not of relevance in the appellant’s decision to plead guilty, the appellant’s sentences

should be modified to reflect a term of five years on each count, with the sentences in



        3
           As thrust for the appellant’s argument, he refers to the doctrine of “judicial vindictiveness” as
reason why the trial court improperly modified his sentences from five to six years. This doctrine holds
that a harsher sentence after a new trial raises a presumption of judicial vindictiveness absent an
affirm ative sho wing on th e record of the rea sons fo r the hars her sen tence. See North Carolina v.
Pearce, 395 U.S . 711, 89 S .Ct. 2072 (1969); State v. Gilliam , 901 S.W .2d 385, 3 92 (Te nn. 1995 ).
Because we have modified the appellant’s sentences following de novo review, we find it unnec essary to
address this issue.

                                                     8
cases C-8252 and C-8253 to run consecutive to the sentence in case C-8088, for a

total effective sentence of ten years.



       For the foregoing reasons, the judgment of the trial court is reversed and this

case is remanded to that court for proceedings consistent with this opinion.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



______________________________
JOHN H. PEAY, Judge



______________________________
JOSEPH M. TIPTON, Judge




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