        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   July 25, 2012 Session

           STATE OF TENNESSEE v. JAMES EDWARD KILBY, III

             Direct Appeal from the Criminal Court for Morgan County
              No. 2010-CR-81 & 2011-CR-12 E. Eugene Eblen, Judge




               No. E2011-02462-CCA-R3-CD - Filed September 4, 2012


The Defendant, James Edward Kilby, III, pled guilty to felony reckless endangerment and
reckless aggravated assault. For the felony reckless endangerment conviction, the trial court
imposed a two-year sentence, ordering the Defendant to serve six months of incarceration
before release to the community corrections program. For the reckless aggravated assault
conviction, the trial court imposed a four-year sentence, ordering the Defendant to serve
eleven months and twenty-nine days of incarceration before release to the community
corrections program. The trial court ordered that these sentences be served consecutively,
for a total effective sentence of six years, to serve eighteen months of incarceration followed
by community corrections. In this appeal, the Defendant contends the trial court improperly
ordered the Defendant to serve more than one year in split confinement. After a thorough
review of the record and relevant authorities, we conclude that the trial court erred when it
sentenced the Defendant. As such, we reverse the trial court’s judgments and remand the
cases for a new sentencing hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
                                  and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and R OGER A. P AGE, JJ., joined.

Kevin C. Angel, Oak Ridge, Tennessee for the Appellant, James Edward Kilby, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Russell Johnson, District Attorney General; Frank Harvey, Assistant District
Attorney General, for the Appellee, State of Tennessee.
                                          OPINION
                                           I. Facts

       In 2010, the Morgan County grand jury indicted the Defendant for the attempted first
degree murder of Corey Snow. In 2011, the Morgan County grand jury indicted the
Defendant for the attempted first degree murder of Aaron Turner. On October 5, 2011, the
Defendant entered guilty pleas in both cases. For the 2010 charge, the Defendant pled guilty
to the lesser-included offense of felony reckless endangerment with an agreed two-year
sentence, with the trial court to determine the manner of service. For the 2011 charge, the
Defendant pled guilty to the lesser-included offense of reckless aggravated assault with an
agreed four-year sentence, with the trial court to determine the manner of service.

       On November 8, 2011, the trial court ordered the Defendant, for the 2010 case, to
serve six months of incarceration, with the remainder of the two-year sentence to be served
on community corrections. For the 2011 case, the trial court ordered the Defendant to serve
eleven months and twenty-nine days of incarceration, with the remainder of the four-year
sentence to be served on community corrections. The trial court then ordered that the 2010
case run consecutively to the 2011 case. It is from these judgments that the Defendant
appeals.

                                        II. Analysis

       On appeal, the Defendant contends, and the State concedes, that the trial court erred
when it imposed a split confinement sentence with a total of eighteen months of confinement.
The Defendant asks this Court to reduce the total period of confinement to one year. The
State asks this Court to remand for a new sentencing hearing. We agree with the State, and
remand for a new sentencing hearing.

         Tennessee Code Annotated section 40-35-306(a), the statute governing split
confinement, prohibits the trial court from sentencing the Defendant to more than one year
in jail as a part of a split confinement sentence. That statute reads, “A defendant receiving
probation may be required to serve a portion of the sentence in continuous confinement for
up to one (1) year in the local jail or workhouse, with probation for a period of time up to and
including the statutory maximum time for the class of the conviction offense.” T.C.A. §
40-35-306(a) (2010) (emphasis added). The consecutive alignment of split confinement
sentences resulting in a confinement period of over one year runs afoul of Section 40-35-
306(a). See State v. Matthew I. Tart, E2009-01315-CCA-R3-CD, 2010 WL 1610515, at *3
(Tenn. Crim. App., at Knoxville, Apr. 21, 2010) no Tenn. R. App. P. 11 application filed.
Thus, the trial court’s judgments ordering the Defendant to serve his two split confinement
sentences consecutively, for a total of eighteen months in confinement, are in error.

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        As the proper remedy to the trial court’s erroneous judgments, we remand the cases
for a new sentencing hearing. As cited above, this Court addressed the issue in Matthew
Tart, remanding to the trial court for a new sentencing hearing after determining that the
consecutive sentences were in contravention of Tennessee Code Annotated section 40-35-
306(a). Matthew Tart, 2010 WL 1610515, at *3 (remanding to the trial court for a new
sentencing hearing to “determine whether [the trial court] wishes to retain the probation
component, thus invoking section 40-35-306’s 365-day limitation on split confinement” or
whether the trial court wanted to “delete the provisions for probation.”). Further, remand is
warranted in these cases because the Defendant did not include the sentencing hearing
transcript in the appellate record. Because the appellate record does not provide information
as to the intent of the trial court’s judgments, this Court remands the cases to the trial court
for a new sentencing hearing.

                                       III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that the
trial court erred when it sentenced the Defendant. As such, we reverse the trial court’s
judgments and remand these cases for a new sentencing hearing.

                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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