                                                                                      06/10/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs February 4, 2020

         STATE OF TENNESSEE v. TONY LEVON JOHNSON, JR.

                 Appeal from the Circuit Court for Madison County
                    No. 18-748-B        Donald H. Allen, Judge
                     ___________________________________

                          No. W2019-00738-CCA-R3-CD
                      ___________________________________


The Defendant, Tony Levon Johnson, Jr., was convicted by a Madison County jury of
burglary of a vehicle, a Class E felony, and theft of property under $1,000, a Class A
misdemeanor. The trial court sentenced him to an effective term of two years, with 240
days of “shock incarceration” in the Madison County Jail before release to Community
Corrections. On appeal, the Defendant argues, and the State agrees, that the trial court
erred in ordering a sentence of continuous confinement before release to Community
Corrections. Because the Defendant’s sentence of continuous confinement is prohibited
by Tennessee Code Annotated section 40-35-122, we reverse the sentence of
incarceration, modify the sentence to Community Corrections, and remand to the trial
court for entry of judgments in accordance with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
                   Part, Reversed in Part, and Modified in Part

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J. and CAMILLE R. MCMULLEN, JJ., joined.

Gregory D. Gookin, Jackson, Tennessee (at trial and on appeal), for the appellant, Tony
Levon Johnson, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                      OPINION
                                         FACTS

      The Defendant’s convictions stem from his participation with co-defendants in
rummaging through one vehicle and taking a wallet from another vehicle during the early
morning hours of March 24, 2018 in Jackson. Immediately after the March 7, 2019 trial,
a probation and parole officer testified that the Defendant had tested positive that day for
THC and admitted that he had smoked marijuana within the past month.

       At the April 22, 2019 sentencing hearing, the State introduced the Defendant’s
presentence report, which reflected that the nineteen-year-old Defendant had no prior
criminal history, either as an adult or as a juvenile; had not graduated from high school;
was employed at Sonic Restaurant at the time of his arrest; and reported that he first used
alcohol at the age of eighteen but had not used in over a year and that he occasionally
smoked marijuana.

       The prosecutor and defense counsel agreed that the Defendant qualified as a non-
violent property offender pursuant to Tennessee Code Annotated section 40-35-122.
Defense counsel additionally pointed out that the Defendant was very young, had been in
school at the time of the offenses, and had already served 46 days in jail due to his bond
having been revoked on the day he tested positive for marijuana. Defense counsel,
therefore, requested that the trial court release the Defendant from jail and place him
under Community Corrections supervision.

        In sentencing the Defendant, the trial court first noted that “vehicle burglaries
[were] a serious problem” throughout the jurisdiction. The court then found that the
Defendant had no prior criminal convictions but had a prior history of criminal behavior
as evidenced by his admitted use of marijuana and use of alcohol while under the legal
drinking age. The court gave minimal weight to the Defendant’s alcohol use but great
weight to his use of marijuana, with particular emphasis on the fact that the Defendant
had used marijuana while on bond for the instant offenses. The court also heavily
weighed as an enhancement factor that the Defendant was a leader in the commission of
the offenses, which the court found applicable based on the Defendant’s statement that he
drove the vehicle that he and his co-defendants used during the night of the offenses as
they made at least twenty stops at various locations to check for unlocked cars.
Additional enhancement factors that the court found applicable were that there was more
than one victim and that a firearm was found in the Defendant’s vehicle at the time of his
arrest. The court found as applicable mitigating factors the Defendant’s youth, to which
the court assigned great weight, and the Defendant’s lack of prior criminal convictions, to
which the court assigned minimal weight.



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       At the conclusion of the hearing, the court sentenced the Defendant as a Range I,
standard offender to concurrent terms of two years for the felony vehicle burglary
conviction and eleven months, twenty-nine days for the misdemeanor theft of property
conviction. Finding that a sentence of full probation would unduly depreciate the
seriousness of the offenses and that some period of confinement was particularly suited to
provide an effective deterrent not only to the Defendant but also to others, the court
ordered that the Defendant serve 240 days in the county jail before release on probation
supervised by the Community Corrections Alternative Program. When asked by defense
counsel whether the time was to be served on weekends rather than continuously, the trial
court responded:

             Well, I’m going to let him serve it as stated. I think I cancelled his
      bond on March the 7th, so he’ll just continue to be held until he’s served this
      period of shock incarceration of 240 days. Of course, I’ll let him serve that
      at 75 percent so that way he can earn some good behavior credits in our
      local jail assuming he behaves himself and then he can hopefully get
      released after serving 75 percent of the 240 days. I’m considering that a
      periodic confinement. It’s not continuous confinement.


                                      ANALYSIS

       On appeal, both the Defendant and the State submit that Tennessee Code
Annotated section 40-35-122 prohibited the trial court from ordering the Defendant to
serve the 240 day period of shock incarceration, which both view as a period of
continuous confinement. We agree.

        The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a
trial court’s sentencing determinations under an abuse of discretion standard, “granting a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707.

       The trial court failed to recognize that the sentence of 240 days of “shock
incarceration” was statutorily prohibited in the Defendant’s case. Tennessee Code
Annotated section 40-35-122 provides that a defendant who has been convicted of certain
non-violent property offenses, and who has no prior criminal convictions and has not

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violated the terms and conditions of the alternative sentence originally imposed on him,
shall not be sentenced to continuous confinement:

      (a) Notwithstanding any law to the contrary, except as provided in
      subsection (b), the judge sentencing a defendant who commits a nonviolent
      property offense, as defined in subsection (c), on or after July 1, 2010, shall
      not be authorized to impose the sentencing alternatives of continuous
      confinement in a local jail or the department of correction as authorized by
      §40-35-104(c)(5), (c)(6), or (c)(8). However, the judge may sentence the
      defendant to any of the other sentencing alternatives authorized by §40-35-
      104(c), which include, but are not limited to, periodic confinement, work
      release, community corrections, probation, or judicial diversion.

      (b)(1) A defendant convicted of an offense set out in subsection (c) may be
      sentenced to any of the sentencing alternatives authorized by §40-35-
      104(c), including a period of continuous confinement, if the sentencing
      judge determines the defendant:

             (A) Has at least one (1) prior conviction at the time the subsection
                 (c) offense is committed; or

             (B) Violated the terms and conditions of the alternative sentence
                 originally imposed upon the defendant pursuant to subsection
                 (a).

Tenn. Code Ann. §40-35-122 (a)-(b)(1).

        The Defendant’s convictions are included in the list of eligible non-violent
property offenses. See Tenn. Code Ann. §40-35-122 (c)(11), (18). Moreover, although
the trial court was understandably concerned at the Defendant’s inability to comply with
the conditions of his release on bond, the Defendant’s use of marijuana while on bond
does not constitute a violation “of the terms and conditions of the alternative sentence
originally imposed” such as to authorize the trial court’s imposition of a period of
continuous confinement.

       As this court has previously observed, “[i]f section 40–35–122 applies, the trial
court cannot order split confinement, where a defendant serves some time in continuous
confinement and the remainder of the sentence on probation.” State v. Sandra Kay Stutts,
No. W2016-01681-CCA-R3-CD, 2018 WL 637943, at *5 (Tenn. Crim. App. Jan. 31,
2018) (citing State v. Devon Elliott Cruze, No. E2014–01847–CCA–R3–CD, 2015 WL
5064070, at *4 (Tenn. Crim. App. Aug. 27, 2015)).
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        We agree with the State that the trial court’s having classified the 240 days of
“shock incarceration” as “periodic confinement” does not alter the fact that it is, in
reality, a period of continuous confinement followed by release to Community
Corrections, which is not allowed by the statute. We, therefore, conclude that the trial
court erred in ordering the 240 days of “shock incarceration.” Accordingly, we reverse
the order of incarceration and modify the sentence to Community Corrections.

                                   CONCLUSION

      Based on the foregoing authorities and reasoning, we reverse the sentence of
shock incarceration imposed by the trial court, modify the Defendant’s sentence to
Community Corrections, and remand for entry of judgments in accordance with this
opinion.



                                           ____________________________________
                                           ALAN E. GLENN, JUDGE




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