        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Knoxville August 21, 2013

                STATE OF TENNESSEE v. NORA HERNANDEZ

                 Appeal from the Circuit Court for Williamson County
                    No. I-CR026245      Timothy L. Easter, Judge


                No. M2012-02383-CCA-R3-CD - Filed October 7, 2013


Appellant, Nora Hernandez, was convicted by a jury of two counts of felony failure to
appear. The trial court merged the convictions and sentenced her to two years, suspended
after service of twenty-five days. On appeal, appellant argues that: (1) her action in failing
to report to the jail to serve a delayed sentence did not constitute the criminal offense of
failure to appear; (2) the trial court erred by failing to dismiss the indictment based on
prosecutorial vindictiveness; (3) her conviction should be dismissed because the jury only
found her guilty of the elements of misdemeanor failure to appear, an offense for which the
statute of limitations had passed; and (4) the trial court erred in sentencing. Following our
review, we affirm appellant’s convictions, but we vacate the two failure to appear judgments
and remand the case for entry of a single judgment reflecting the merger of these convictions.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Vacated;
                                  Case Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Drew Justice, Franklin, Tennessee, for the appellant, Nora Hernandez.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Kim R. Helper, District Attorney General; Christopher Vernon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           I. Facts

      On March 16, 2010, appellant pleaded guilty in the general sessions court of
Williamson County to theft under $500 and simple possession of a schedule VI substance.
The general sessions judge sentenced her to concurrent sentences of eleven months, twenty-
nine days in the workhouse, suspended after the service of five days. The judgment forms
state that appellant was to report to serve her sentence on April 16, 2010, by 4:00 p.m. She
did not report to the jail on that date. Her probation officer contacted the general sessions
judge, who changed her report date to July 9, 2010. On June 17, 2010, a probation violation
warrant was issued, stating that appellant had violated her probation by failing to pay fines,
failing to report to jail (although the warrant noted that her report date was changed to July
9), and failing to report for court-mandated review dates. On July 9, 2010, appellant again
failed to report to the jail. The probation violation warrant was amended to include the
failure to report on July 9, 2010. Appellant was arrested on the probation violation warrant
on December 23, 2010, and her probation was subsequently revoked. On December 28,
2011, she filed a notice of appeal with respect to her probation revocation.

       On February 13, 2012, a Williamson County grand jury indicted appellant on two
counts of felony failure to appear. Subsequently, appellant filed a motion to quash the
indictment for failure to charge a criminal offense, which the trial court denied after a
hearing. The trial court also denied appellant’s motions to dismiss the indictment for
prosecutorial vindictiveness and to dismiss the indictment for the statute’s being
unconstitutionally vague.

        At trial, Nephtaly Feliciano, a probation officer, testified that on March 16, 2010, he
met with appellant to review her probation order. He said that appellant signed her probation
order, “indicating that she fully understood her requirements to probation and to the court.”
Mr. Feliciano testified that during the intake process, appellant reported having medical
problems and that her report date to serve the five days was set for April 16, 2010, to
accommodate her. He said that individuals who receive a delayed report date for their
sentences are told to report to the clerk’s office on their report date. The clerk’s office
prepares a mittimus, and the sheriff’s department takes custody of the individual at the
clerk’s office. Mr. Feliciano explained this process to appellant. Mr. Feliciano agreed that
the general sessions judge had the authority to order someone into custody “at any point in
time if they’ve been convicted,” and he further agreed that he would classify this authority
as a “restraint.”

       Mr. Feliciano testified that on April 16, 2010, he received a telephone call from
appellant. Appellant told him that she was unable to report to jail due to medical needs.
Later that day, she submitted documentation from her doctor to the general sessions judge.
After consulting with Mr. Feliciano about appellant’s needs, the general sessions judge
changed appellant’s report date to July 9, 2010. Mr. Feliciano informed appellant of her new
report date.



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       Mr. Feliciano further testified that on June 3, 2010, appellant missed a court-ordered
review date. The review date was rescheduled for June 17. On July 9, 2010, the clerk’s
office informed Mr. Feliciano that appellant had not reported to jail. Appellant never
contacted him with regard to missing the report date. He testified that her probation was
revoked in December 2011 and that the probation violation warrant was originally premised
on her failure to attend the court-mandated review and later amended to include her failure
to report to jail.

       Deputy Clerk Donna Green testified that the general sessions clerk’s office prepared
a mittimus for each of appellant’s convictions. Both indicated originally that she was to
report on April 16, 2010, and both were amended to indicate a new report date of July 9,
2010.

         Sergeant Carol Hughes, the custodian of the records for the booking department at the
jail, testified that none of her records indicated that appellant reported to jail on July 9, 2010.

       The defense submitted an audio recording of appellant’s February 2, 2010 general
sessions court appearance. On that date, appellant requested a lawyer “kind of late in the
day,” as her trial counsel characterized it. The general sessions judge revoked her bond,
reinstated a bond of $2,000, and said that an attorney would be appointed the following day.
During closing arguments, appellant’s counsel argued that “the lawfulness of this whole
sentence is fairly dubious” because the general sessions judge violated appellant’s right to
an attorney.

       The jury convicted appellant as charged, and the trial court merged the two
convictions. At sentencing, the only evidence presented was a presentence report. The trial
court found that appellant had a history of criminal convictions or behavior in addition to that
necessary to establish the sentencing range, that appellant failed to comply with the
conditions of a sentence involving release into the community, and that appellant was on
probation when she committed the felony. See Tenn. Code Ann. § 40-35-114(1), -114(8),
-114(13). The court stated that it considered the mitigating factor that appellant’s conduct
neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1).
The trial court imposed a within-range sentence of two years, and after finding that
consecutive sentencing was appropriate under Tennessee Code Annotated sections 40-35-
115(b) and 39-16-609(f), ordered that she serve her sentence in this case consecutively to the
sentence from her general sessions court cases. Finally, the trial court ordered appellant to
serve twenty-five days in confinement with the balance of the sentence suspended after
finding that some confinement was appropriate because measures less restrictive than
confinement had recently been applied unsuccessfully and because confinement was



                                                -3-
necessary to avoid depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-
35-103(1)(B)-(C).

                                         II. Analysis

              A. Application of Tennessee Code Annotated section 39-16-609

        Appellant submits that her conduct in failing to report for a delayed sentence was not
failure to appear as criminalized in Tennessee Code Annotated 39-16-609(a)(4), which if
true, would require dismissal of her conviction. Her argument is based on her interpretation
of the phrase “released from custody . . . on condition of subsequent appearance at . . . [a]
penal institution.” Tenn. Code. Ann. § 39-16-609(a)(4). She contends that she was not in
custody as contemplated by the statute at the relevant time and that her release from custody
earlier had not been conditioned on a subsequent appearance at a penal institution. The State
responds that the statute unambiguously makes it a criminal offense to fail to appear at a
penal institution to serve a sentence and that appellant’s conduct constituted failure to appear.

       Issues of statutory construction are reviewed de novo with no presumption of
correctness. Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009). “The most basic principle
of statutory construction is to ascertain and give effect to legislative intent without
broadening the statute beyond its intended scope.” Id. “When statutory language is clear and
unambiguous, we must apply its plain meaning in its normal and accepted use, without a
forced interpretation that would extend the meaning of the language[,] and[] in that instance,
we enforce the language without reference to the broader statutory intent, legislative history,
or other sources.” Id.

       Tennessee Code Annotated section 39-16-609, in pertinent part, states as follows:
       (a) It is unlawful for any person to knowingly fail to appear as directed by a
       lawful authority if the person:

       ....

       (4) Has been lawfully released from custody, with or without bail, on condition
       of subsequent appearance at an official proceeding or penal institution at a
       specified time or place . . . .


“Custody,” as it relates to this title of the code, is defined in Tennessee Code Annotated
section 39-16-601(2): “‘Custody’ means under arrest by a law enforcement officer or under
restraint by a public servant pursuant to an order of a court.”

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        Appellant does not argue that failing to report to jail is never a criminal offense, but
she contends that in her situation, it was not. We disagree and conclude that the plain
meaning of the statute encompasses her conduct. She pleaded guilty to two Class A
misdemeanors. From the record, it appears that as part of her plea agreement, she agreed to
serve five days in the county workhouse but, due to health concerns, would serve the five
days approximately one month after her guilty plea acceptance hearing. Appellant argues
that she was “free,” i.e., not in custody, during her court appearance and, thus, could not have
been released from custody. She may not have been in handcuffs, but we fail to comprehend
how she was “free.” Appellant was obligated to be in the courtroom to address her charges,
and she would have been transferred to the county workhouse the same day that she pleaded
guilty if the general sessions court had not accommodated her special needs by allowing her
to report at a later date. Therefore, she was under restraint by a public servant - the general
sessions court. Appellant was only allowed to leave the courthouse because she agreed to
report to the county workhouse in April. Thus, she was released from being under restraint
on the condition that she appear at a penal institution at a specific time and place. Appellant’s
arguments to the contrary are theoretical and stretch the interpretation of the statute far
beyond its plain and ordinary meaning. It is clear that the legislature intended to criminalize
the failure to report to jail to serve a sentence, which is exactly what appellant did in this
case. Therefore, she is without relief as to this issue.

                               B. Prosecutorial Vindictiveness

       For her second argument, appellant contends that the State punished her for exercising
her right to appeal her probation revocation by prosecuting her for two new felonies that
covered the same conduct leading to her probation revocation. The State responds that it
acted properly and without vindictiveness when it presented the failure to appear charges to
the grand jury. We agree with the State.

       It is unconstitutional to punish a person for choosing to exercise his or her
constitutional rights. North Carolina v. Pearce, 395 U.S. 711, 724 (1969) (citing United
States v. Jackson, 390 U.S. 570, 581 (1968), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794 (1989)). Due to the severity of allegations of vindictive prosecution, see
United States v. Goodwin, 457 U.S. 368, 373 (1982), “the Court has restricted application of
the presumption of vindictiveness to situations where ‘its objectives are thought most
efficaciously served.’” State v. Phipps, 959 S.W.2d 538, 542 (Tenn. 1997) (quoting Texas
v. McCullough, 475 U.S. 134, 138 (1986)). When determining whether a prosecutor’s
actions give rise to a presumption of vindictiveness, courts should consider “‘the nature of
the right asserted’ and ‘the timing of the prosecutor’s action.’” Id. (quoting Goodwin, 457
U.S. at 381-82). “The balance weighs in favor of applying the presumption if the right

                                               -5-
asserted by the defendant requires ‘duplicative expenditures of prosecutorial resources,’ or
would require the State ‘to do over what it thought it had already done correctly.’” Id. at 542-
43 (quoting Goodwin, 457 U.S. at 383).

        If proven, allegations of prosecutorial vindictiveness or selective prosecution in the
institution of a prosecution may warrant dismissal of the indictment based on constitutional
concerns. State v. Skidmore, 15 S.W.3d 502, 508 (Tenn. Crim. App. 1999) (citing
Blackledge v. Perry, 417 U.S. 21, 27 (1974)). However, if the prosecutor had probable cause
to believe the accused committed the underlying offense, the decision to prosecute the
accused rests entirely within the prosecutor’s discretion, subject to certain constitutional
limitations. Id. (citing State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn. 1994); Quillen
v. Crockett, 928 S.W.2d 47, 51 (Tenn. Crim. App. 1995)).

       The record in the instant case shows that appellant was not in court on the probation
revocation until December 2011. During argument before the trial court, appellant’s counsel
said that appellant rejected a plea agreement covering the probation revocation, instead
deciding to go through with the revocation hearing. After the court determined that she
should serve her entire sentence in confinement, she appealed to the circuit court. She was
indicted for failure to appear in February 2012. According to the prosecutor, the State did
not know that appellant had failed to report to jail as ordered until she was in court for the
probation revocation.

       A presumption of prosecutorial vindictiveness is not warranted. The new charges
garnered by appellant in this case are separate from the probation revocation case, not
increased punishment in the same case. The State had probable cause to initiate the
prosecution, and it did so as soon as practicable after learning of the underlying offense.
Skidmore, 15 S.W.3d at 508. Prosecutorial resources were not duplicated nor was the State
required to do over what it thought it had done correctly once because, again, this was a
separate case. Phipps, 959 S.W.2d at 542. Appellant’s arguments to the contrary are without
merit.

                          C. Failure to Charge Material Elements

        Appellant contends that the trial court failed to charge all material elements of felony
failure to appear by not instructing the jury that it must find that the occasion for which
appellant was required to appear was a Class A misdemeanor or felony. “The law is
well-settled in Tennessee ‘that a defendant has a right to a correct and complete charge of
the law so that each issue of fact raised by the evidence will be submitted to the jury upon
proper instructions.’” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (quoting State v.
Farner, 66 S.W.3d 188, 204 (Tenn. 2001)). However, in this case, the occasions for which

                                              -6-
appellant was required to appear were not an issue of fact. She pleaded guilty to theft under
$500 and simple possession, both of which, by definition, are Class A misdemeanors. See
Tenn. Code Ann. §§ 39-14-105, 39-17-418. Thus, her failure to appear in those cases could
only be a Class E felony, which is how the grand jury indicted her. See Tenn. Code Ann. §
39-16-609(e). Therefore, the trial court did not fail to charge a material element, and
appellant is without relief as to this issue.

                                        D. Sentencing

       Appellant submits that the trial court imposed an excessive two-year sentence because
(1) it punished her for presenting what the court viewed as a baseless defense; (2)
consecutive sentencing was not required for purposes of rehabilitation and was unnecessary
because she had already been harshly punished for the same conduct; and (3) the trial court
misapplied enhancement factors eight and thirteen. The State responds that the record
supports the trial court’s sentence. We agree with the State.

                                    1. Standard of Review

        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Id.
§ 40-35-103(4).

       Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” that are not binding on the trial court; however, the trial court must
nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors
is advisory, a court shall consider “[e]vidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-
210(b)(5). The trial court must also place on the record “what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair
and consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing

                                               -7-
factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant. State
v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App.
Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating
factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at
345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at
*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

      A trial court should base its decision regarding alternative sentencing on the following
considerations:

       (A)    Confinement is necessary to protect society by restraining a defendant
              who has a long history of criminal conduct;

       (B)    Confinement is necessary to avoid depreciating the seriousness of the
              offense or confinement is particularly suited to provide an effective
              deterrence to others likely to commit similar offenses; or

       (C)    Measures less restrictive than confinement have frequently or recently
              been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).

       When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). This standard of review also applies to “the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). If a trial
court misapplies an enhancing or mitigating factor in passing sentence, said error will not
remove the presumption of reasonableness from its sentencing determination. Bise, 380
S.W.3d at 709. This court will uphold the trial court’s sentencing decision “so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,
under such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).




                                              -8-
        The determination by the trial court of consecutive or concurrent sentencing should
not be disturbed on appeal absent an abuse of discretion. State v. Blouvet, 965 S.W.2d 489,
495 (Tenn. Crim. App. 1997). A trial court may, in its discretion, order sentences to be
served consecutively to each other if it finds one of seven criteria by a preponderance of the
evidence. Tenn. Code Ann. § 40-35-115(b). “These criteria are stated in the alternative;
therefore, only one need exist to support the appropriateness of consecutive sentencing.”
State v. Mickens, 123 S.W.3d 355, 394 (Tenn. Crim. App. 2003). Imposition of consecutive
sentences must be “justly deserved in relation to the seriousness of the offense.” Tenn. Code
Ann. § 40-35-102(1). The length of the resulting consecutive sentence must be “no greater
than that deserved for the offense committed.” Id. § 40-35-103(2).

                           2. Punishment for Presenting Defense

        Appellant claims that the trial court punished her for presenting a defense that the
general sessions court denied her due process by not appointing her an attorney. The trial
court did mention that it was disturbed by this defense twice during the sentencing hearing,
but the record does not establish that the trial court inappropriately relied on this issue to
enhance appellant’s punishment. The first time the court mentioned the defense was after
it stated that it agreed with appellant’s contention that her conduct neither caused nor
threatened serious bodily injury. The court next mentioned the defense when it was
discussing alternative sentencing. The court determined that some confinement was
necessary in appellant’s case because measures less restrictive than confinement had recently
been applied unsuccessfully and to avoid depreciating the seriousness of the offense. With
regard to the second factor, the trial court said:

       The Court also finds that confinement is necessary to avoid depreciating the
       seriousness of this offense, and particularly under the facts of this case where
       the defendant, again, was trying to somehow indicate that she was not going
       to have her rights protected or somehow she was going to . . . have her rights
       violated by coming to court, or serving her sentence, and there just was no
       proof at all in the record of that. . . .

              People need to understand that if you don’t show up to serve your jail
       time[] and try to hide behind some fact that just is not supported by the record,
       then the sentencing will be more severe.

       Clearly, the court was concerned that appellant did not report to serve her sentence as
a form of protest rather than taking the appropriate legal actions if she believed she had been
denied counsel. It was not an abuse of discretion for the court to base its finding that some
confinement was necessary to avoid depreciating the offense when it was concerned that

                                              -9-
appellant did not, in fact, accord proper gravitas to serving her original sentence. In any
event, as the court also found that some confinement was necessary because measures less
restrictive than confinement had recently been applied unsuccessfully, the court did not abuse
its discretion in ordering a sentence involving twenty-five days of confinement. Appellant
is without relief as to this issue.


                                 3. Consecutive Sentencing

        Appellant contends that the trial court’s requiring her to serve her sentence for failure
to appear consecutively to her sentences for the Class A misdemeanors for which she had
failed to appear was unnecessary. Appellant notes that she was ordered to serve the entire
eleven months, twenty-nine days for the Class A misdemeanors after a revocation hearing.
She alleges that the eleven-month, twenty-nine-day sentences for the Class A misdemeanors
were sufficient to rehabilitate her and that the imposition of a consecutive sentence for failure
to appear is essentially punishing her again for the same conduct for which she was already
being harshly punished.

         Tennessee Code Annotated section 39-16-609(f) specifically gives a court the
discretion to order that a defendant serve his or her sentence for failure to appear
consecutively to the offense(s) for which the defendant failed to appear. The court in this
case appropriately relied on the offense statute as well as Tennessee Code Annotated section
40-35-115(b)(6) in ordering that appellant serve her sentence consecutively to her general
sessions cases. Appellant argues that she had already been harshly punished for failing to
report to the jail when she was ordered to serve the full sentences for her general sessions
cases; however, there were more probation violations alleged than just the failure to report
to jail. Furthermore, the legislature clearly sanctioned consecutive sentencing in cases such
as this one.

                           4. Application of Enhancement Factors

        Finally, appellant contends that the trial court erred by applying enhancement factors
(8) and (13) because the facts that she committed the offense while on probation and that she
failed to complete a sentence involving release into the community were inherent in the
offense itself. See Tenn. Code Ann. § 40-35-114(8), -114(13)(C). Contrary to appellant’s
assertions, the offense of failure to appear does not require as an essential element that a
defendant be on probation or fail to comply with the conditions of a sentence involving
release into the community. See Tenn. Code Ann. § 39-16-609. We conclude that the record
supports the trial court’s sentencing because it is within the appropriate range and is in



                                              -10-
compliance with the purposes and principles of the sentencing statutes. Therefore, appellant
is without relief as to this issue.

                                         E. Merger

        As a matter of plain error, we note that despite the trial court’s merging of the two
failure to appear convictions, the record contains separate judgments and sentences for the
convictions with the merger noted in the special conditions section of the forms. However,
“[i]n a case such as this one, when two offenses merge, it is proper to enter only one
judgment of conviction.” State v. Cecret C. Williams, No. M2009-01739-CCA-R3-CD, 2010
WL 4674300, at *9 (Tenn. Crim. App. Nov. 17, 2010). Therefore, we must vacate the
judgments and remand the case for entry of a single judgment form reflecting the merged
conviction.

                                     CONCLUSION

       Based on our review of the record, the briefs of the parties, and relevant legal
authorities, we affirm appellant’s convictions but vacate the judgments and remand this
matter for entry of a corrected judgment form consistent with this opinion.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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