                                                                                          10/17/2018
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                   AT NASHVILLE
                                  June 19, 2018 Session

                STATE OF TENNESSEE v. AREANNA O. LLOYD

                 Appeal from the Circuit Court for Rutherford County
                       No. F-75770C       Royce Taylor, Judge
                      ___________________________________

                             No. M2017-01919-CCA-R3-CD
                         ___________________________________



Easter, J., dissenting in part.

       I agree with the majority’s well-reasoned conclusion that the trial court maintained
jurisdiction over Defendant’s sentence pursuant to Tennessee Code Annotated section 40-
35-212 to consider her petition for a suspended sentence. I disagree with the majority’s
conclusion that the trial court correctly modified the Defendant’s agreed upon sentence,
which was the result of a fully negotiated plea agreement between Defendant and the
State just mere months earlier. There is no evidence of post-sentencing information or
developments that would warrant an alteration of the agreed upon manner of service of
Defendant’s sentence. I respectfully dissent.

       An application to suspend the balance of a sentence has been described as being
“akin to a motion to reduce a sentence” under Rule 35. State v. Ruiz, 204 S.W.3d 772,
777 (Tenn. 2006). The standard for evaluating such applications is “whether post-
sentencing information or developments have arisen that warrant an alteration in the
interests of justice.” Id. This Court reviews a trial court’s ruling under an abuse of
discretion standard. Id. at 778; State v. Edenfield, 299 S.W.3d 344, 346 (Tenn. Crim.
App. 2009). “[A]n appellate court should find that a trial court has abused its discretion
only when the trial court has applied an incorrect legal standard, or has reached a decision
which is illogical or unreasonable and causes an injustice to the party complaining.”
Ruiz, 204 S.W.3d at 778 (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)).

      The standard utilized to review applications under Rule 35 has been applied in
cases involving plea agreements where defendants seek to reduce or suspend the
remainder of their sentences. See State v. McDonald, 893 S.W.2d 945 (Tenn. Crim. App.
1994); State v. Thomas Jefferson Teague, No. M2007-01646-CCA-R3-CD, 2008 WL
3850511, at *6 (Tenn. Crim. App. Aug. 19, 2008), no perm. app. filed. The defendant in
McDonald was sentenced by the trial court pursuant to a plea agreement. 893 S.W.2d at
945. Later, the defendant filed a Rule 35 motion for reduction of sentence, which the
trial court denied based on the existence of the plea agreement. On appeal, the defendant
challenged the trial court’s refusal to consider a Rule 35 motion because the case
involved a negotiated plea agreement. The State insisted that a negotiated plea agreement
resulted in a waiver of the right to file a Rule 35 motion. Our court affirmed the trial
court’s denial of the motion, holding that although the defendant had not completely
waived his Rule 35 rights by entering a plea pursuant to Rule 11(e)(1)(C) of the
Tennessee Rules of Criminal Procedure (now Rule 11(c)(1)(C)), the trial court could
modify his sentences only if required in the “interest of justice.” McDonald, 893 S.W.2d
at 947. Recognizing that alteration of a negotiated plea agreement sentence is limited in
scope, we stated in McDonald that “a situation may arise where unforeseen, post-
sentencing developments would permit modification of a sentence in the interest of
justice.” Id.

       Here, it appears that Defendant entered her negotiated plea of guilty and sentence
pursuant to Rule 11(c)(1)(C) of the Tennessee Rules of Criminal Procedure. That is, the
State and Defendant agreed to a specific sentence of seven years, two months, and twelve
days to be served in confinement in the Department of Correction, which sentence was
accepted and placed into effect by the trial court. This was a binding contract between
Defendant and the State to which the trial court was, in effect, not a party. The trial court
did not conduct a sentencing hearing. The trial court took no action in fashioning the
agreed-upon sentence and the manner of its service. The record supports that the
negotiated agreement was freely entered into by Defendant and the State. Thus, in order
to seek a reduction in the sentence, no matter whether the vehicle is Rule 35 or, as in this
case, section 40-35-212, Defendant must show “unforeseen, post-sentencing
developments [that] would permit modification of a sentence in the interest of justice.”
McDonald, 893 S.W.2d at 947.

        Defendant claims that the parole board (“the Board”) denied parole without giving
her a definitive reason.1 Obviously, this denial would have occurred after sentencing, but
it was not unforeseen. “Release on parole is a privilege, and not a right.” T.C.A. § 40-
35-303(b). Therefore, just because a defendant is eligible for parole does not in any way
entitle or “guarantee that he or she will be granted parole.” David v. State, 313 S.W.3d
751, 756 n.5 (Tenn. 2010).

        The possibility of parole after the service of twenty percent of her sentence was
just that – a possibility. A possibility carries with it an uncertainty of a definite result, but
that uncertainty is known and cannot later be labeled unforeseen or unexpected. In my
       1
          I say “claims” because the only evidence in the record that Defendant was denied parole on
April 11, 2017, is Defendant’s self-serving testimony that the Board found Defendant to be “high risk”
and “set me off 36 months.”
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view, Defendant’s post-sentencing denial of parole, in and of itself, was always a real
possibility that was foreseeable and expectable. It was not something that no one could
have ever seen coming.

        Post-sentencing developments which can be foreseen are not sufficient to justify a
modification of a sentence in a case with a negotiated plea agreement under Rule 35 or
otherwise. See, e.g., Ruiz, 204 S.W.3d at 778; McDonald, 893 S.W.2d at 947; State v.
Johnathan David Patterson, No. M2016-01716-CCA-R3-CD, 2017 WL 4342212, slip
op. at 6-7 (Tenn. Crim. App. Sept. 29, 2017), perm. app. granted (Tenn. Feb. 14, 2018);
State v. Misty Ann Miller, No. M2016-01165-CCA-R3-CD, 2017 WL 478267, at *3
(Tenn. Crim. App. Feb. 6, 2017) (finding defendant’s numerous mental and physical
conditions, which were known at the time of entry of the negotiated plea, failed to
constitute a change in circumstances warranting modification of an agreed-upon
sentence), perm. app. denied (Tenn. May 18, 2017); State v. Russell Leaks, No. W2013-
01136-CCA-R3-CO, 2014 WL 10316777, at *2 (Tenn. Crim. App. May 15, 2014)
(determining the defendant’s claim that he would “seek intensive rehabilitation treatment
if released” was not an “unforeseen, post-sentencing” development that would allow the
trial court to modify the defendant’s sentence from negotiated plea in the interest of
justice); State v. Hugo Mendez, No. W2009-02108-CCA-R3-CD, 2010 WL 2836116, at
*2 (Tenn. Crim. App. July 19, 2010) (stating completion of rehabilitative services during
incarceration was not the “type [ ] of ‘unforeseen developments’ which would serve as a
basis for sentence modification”), no perm. app. filed; State v. Herman Sowell, Jr., No.
M2008-02358-CCA-R3-CD, 2010 WL 987196, at *4 (Tenn. Crim. App. Mar. 17, 2010)
(finding trial court did not abuse its discretion in denying modification of a sentence
based on unforeseen circumstances arising from complications relating to pregnancy of
the defendant’s wife, which hampered her ability to support her family, where trial court
determined interests of justice did not support modification of sentence), no perm app.
filed; State v. William C. Osborne, Jr., No. M2008-00988-CCA-R3-CD, 2009 WL
1260238, at *3 (Tenn. Crim. App. May 7, 2009) (finding Defendant presented no proof
of unforeseen, post-sentencing developments, except the violation of his own probation,
that would warrant modification of his sentence), no perm. app. filed; State v. Robert C.
Payne, No. M2006-01662-CCA-R3-CD, 2007 WL 92355, at *1-2 (Tenn. Crim. App. Jan.
11, 2007) (denying relief under Rule 35 based on finding that “health and family
concerns were present at the time of sentencing”), no perm. app. filed; State v. John
Harvey Jennings, No. M2006-02055-CCA-R3-CD, 2007 WL 2600541, at *2-3 (Tenn.
Crim. App. Sept. 11, 2007) (determining that alteration of defendant’s sentence was not
proper in the interest of justice), no perm. app. filed.

       Finally, I am baffled at the mathematics established by this record. I admit that I
have never been able to track the Board’s sentencing calculator, but the raw numbers
established by the Corrected Judgment contained in the record demonstrate that
                                           -3-
Defendant received an agreed sentence of seven years, two months, and twelve days to
serve in the Department of Correction. In my calculation, that results in a term of 2,627
days. A 20% release eligibility date (RED) results in a term of 525 days to serve before
release eligibility is reached. Defendant had accrued 23 pre-trial credit days on her plea
date, October 25, 2016, leaving 502 days to serve before her RED. Assuming that
Defendant was in fact denied parole on April 11, 2017, the time span between the plea
date and the parole hearing date yields only 192 days of incarceration. That leads me to
conclude that Defendant had not reached her RED on April 11, 2017, and, therefore, was
not even eligible for parole. Further, even with the additional 137 days between April 11
and September 1, 2017 (the date the trial court granted the suspended sentence),
Defendant was still lacking some 173 days of a 20% RED. In short, it appears Defendant
had not reached the 20% RED for an especially mitigated offender even by the time the
trial court granted her petition for a suspended sentence.

       Because Defendant failed to show unforeseen post-judgment developments, I
believe the trial court abused its discretion by granting Defendant’s petition for
suspended sentence. I would, therefore, have reversed the trial court’s judgment.


                                            ____________________________________
                                            TIMOTHY L. EASTER, JUDGE




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