         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs May 18, 2004

                    STATE OF TENNESSEE v. JOE W. FRANCE

                     Appeal from the Criminal Court for Jefferson County
                              No. 7133   O. Duane Slone, Judge



                       No. E2003-01293-CCA-R3-CD - Filed July 19, 2004


The defendant, Joe W. France, pled guilty to the sale of cocaine in excess of .5 grams. A Range II,
12-year sentence was imposed but the defendant was granted probation supervised under a
Community Corrections program after a term in jail. After the issuance of a revocation warrant, the
defendant agreed to an increase of the sentence to 20 years in exchange for continued probation
supervised by the Community Corrections program. Later, the defendant violated the terms of the
agreement and was ordered to serve the 20-year sentence. In this appeal, the defendant complains
that even though he entered into the sentence modification by agreement, he was entitled to a hearing
before the sentence was increased. The judgment of the trial court is reversed. Because both the
original plea agreement and the amended agreement provided for illegal sentences, the conviction
must be set aside and the cause remanded for trial.

          Tenn. R. App. P. 3; Judgment of the Trial Court Reversed and Remanded

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN ,
JJ., joined.

Edward C. Miller, Public Defender (on appeal), and Susanne Bales, Assistant Public Defender (at
trial), for the appellant, Joe W. France.

Paul G. Summers, Attorney General & Reporter; Elizabeth Ryan, Senior Counsel; and Charles L.
Murphy, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        On July 10, 2001, the defendant pled guilty to the sale of cocaine in excess of .5 grams. As
a part of a plea agreement, the trial court imposed a Range II, 12-year sentence, requiring 365 days
in the county jail with the balance on probation but to be supervised by a Community Corrections
program. Six and one-half months after the guilty plea, the petitioner was charged with violating
conditions of his probation after testing positive for cocaine, failing to pay costs, fines and fees, and
evading arrest. A probation revocation hearing was conducted and the defendant admitted the
violations of his Community Corrections probation. At the hearing on September 24, 2002, the
petitioner entered into a sentence modification agreement which provided for an increase in the
sentence to 20 years but which also provided for a continuation of "Community Corrections
supervised probation." The conditions of his release included a drug and alcohol assessment and
random drug testing. Less than three months later, a second probation violation warrant was issued
and, after a hearing, the trial court ordered the 20-year sentence to be served in the Department of
Correction.

        In this appeal, the defendant argues that the trial court erred by approving the revised 20-year
plea agreement without directing a pre-sentence investigation and conducting a sentencing hearing.
The defendant argues that the legislature authorized trial courts to re-sentence under the Community
Corrections Act only after a determination of the nature, the circumstances, and the frequencies of
the defendant's misconduct while on a release status. Citing State v. Ervin, 939 S.W.2d 581, 583
(Tenn. Crim. App. 1996), the defendant insists that the legislation precludes an increase in the
sentence absent an evidentiary hearing documenting the reasons for the imposition of a greater term.

        The state has conceded that the holdings in both State v. Gauldin, 737 S.W.2d 795, 798
(Tenn. Crim. App. 1987), and State v. Crook, 2 S.W.3d 238 (Tenn. Crim. App. 1998), require a
sentencing hearing with appropriate findings of fact when a defendant is re-sentenced to a term more
severe than the original sentence to the Department of Correction. It takes the position, however,
that both Gauldin and Crook are distinguishable because, in this instance, the defendant agreed to
the 20-year sentence and chose not to appeal within the time prescribed.

         Parenthetically, the record indicates that the defendant disregarded the advice of his trial
counsel at the first revocation proceeding and insisted upon accepting a modification from the
original term of 12 years to a 20-year sentence. The record suggests that he was motivated in great
measure by a desire to remain on probation. There was no timely appeal from the re-sentencing
order. The defendant does, however, appeal from the order entered some eight months later wherein
the trial court revoked probation based upon the failure to report, the failure to pay costs, fines and
fees, and a positive result in a test for the presence of illegal drugs.

       Once a defendant violates the terms of his Community Corrections program, the trial court
may revoke the sentence and impose a new one:

               The court shall also possess the power to revoke the sentence imposed at any
       time due to the conduct of the defendant or the termination or modification of the
       program to which the defendant has been sentenced, and the court may re-sentence
       the defendant to any appropriate sentencing alternative, including incarceration, for
       any period of time up to the maximum sentence provided for the offense committed,
       less any time actually served in the community-based alternative to incarceration.

Tenn. Code Ann. § 40-36-106(e)(4). In this instance, the defendant, a multiple offender, qualified
for a sentence of between 12 and 20 years. See Tenn. Code Ann. § 39-17-417. Sale of cocaine in


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excess of one-half gram is a Class B felony. He originally received the minimum term but ultimately
agreed to the maximum.

        Although the record indicates that there was a hearing pursuant to the issuance of the second
revocation warrant, the transcript of the evidence was not made a part of this record. The order
entered by the trial court simply provided that the defendant had violated the terms and conditions
of the alternative sentence "for allegations of [the] warrant." In consequence, the trial court directed
that the defendant serve the balance of his 20-year sentence due to a violation of the terms of his
probation. Credit was given for the defendant's time in jail and the trial court also ordered credit for
the amount of time the defendant was under the supervision of the Community Corrections program.

                                                   I
        The purpose of the Community Corrections Act of 1985 was to provide an alternative means
of punishment for "selected, non-violent felony offenders in front end community-based alternatives
to incarceration." Tenn. Code Ann. § 40-36-103(1). Even though a defendant meets the minimum
requirements for participation in a Community Corrections program, that does not mean that he or
she is entitled to be sentenced under the act as a matter of law or right. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987). Because the program is a "last chance" opportunity for
those who would otherwise be incarcerated in a correctional institution, trial courts must be given
substantial discretionary authority in order to weigh legitimate societal aims against a potential
benefit to the defendant. See Tenn. Code Ann. § 40-36-106(a); State v. Griffith, 787 S.W.2d 340,
342 (Tenn. 1990). Upon the revocation of a Community Corrections sentence, trial courts have the
power to re-sentence to a period of incarceration up to the maximum for the offense originally
committed with a credit for time already served in the Community Corrections program. Tenn. Code
Ann. § 40-36-106(e)(4). The trial court may impose a sentence greater than the original sentence
without offending any prior jeopardy provision of either the Tennessee Constitution or the United
States Constitution. Griffith, 787 S.W.2d at 341-42; see State v. Carpenter, ____ S.W.3d ____, No.
M2002-02187-SC-R11-PC (Tenn. 2004). Because the Tennessee Criminal Sentencing Reform Act
and the Community Corrections Act were construed pari materia as ruled in State v. Taylor, 744
S.W.2d at 920, the trial court must conduct a sentencing hearing after revocation of a Community
Corrections sentence pursuant to the principles of the Sentencing Reform Act. State v. Cooper, 977
S.W.2d 130, 132 (Tenn. Crim. App. 1998). Because the Sentencing Reform Act provides that the
record of the sentencing hearing "shall include specific findings of fact upon which application of
the sentencing principles was based," the trial court must state on the record the reasons for the
imposition of the new sentence. Tenn. Code Ann. § 40-35-209(c); State v. Gauldin, 737 S.W.2d
795, 798 (Tenn. Crim. App. 1987).1


         1
           The United States Supreme Court's recent opinion in Blakely v. W ashington, 542 U.S. ___, 2004 U.S. LEXIS
4573 (2004), calls into question the continuing validity of our current sentencing scheme. In that case, the Court,
applying the rule in Apprendi v. New Jersey, 566 U.S. 466, 490 (2000), struck down a provision of the W ashington
sentencing guidelines that permitted a trial judge to impose an "exceptional sentence" upon the finding of certain
statutorily enumerated enhancement factors. Id. The Court observed that "the 'statutory maximum' for Apprendi purposes
is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by
                                                                                                           (continued...)

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        In State v. Harkins, 811 S.W.2d 79 (Tenn. 1991), our supreme court ruled that a Community
Corrections sentence is so similar to a probationary sentence as to require the application of the same
standard of review. Our general law provides that a trial court may revoke a sentence of probation
upon a finding by a preponderance of the evidence that the defendant has violated the conditions of
his release. Tenn. Code Ann. § 40-35-311(e). On appeal, a revocation will be upheld absent an
abuse of discretion. In order to establish that the trial court has abused its discretion, the defendant
must show that there is no substantial evidence to support the determination that he violated his
probation. Harkins, 811 S.W.2d at 82. Relief can be granted only when the trial court's logic and
reasoning were improper when viewed in the light of the factual circumstances and the legal
principles involved. State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001). The trial judge is not
required to find that a violation of the terms of probation has occurred beyond a reasonable doubt.
Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980).

         That the trial court approved an extension of the probationary term after the issuance of the
initial revocation warrant indicated some leniency. The defendant, who was warned by his own
defense counsel not to accept the state's offer of the maximum 20-year sentence in exchange for a
final opportunity to finish his sentence in compliance with the probationary conditions, nevertheless
chose to accept the agreement and assume the risk of his own non-compliance. The record indicates
that the trial court delayed imposition of the greater sentence in order to give the defendant an ample
opportunity to consider the potential consequences of his request for approval. In our view, a formal
sentencing hearing or a revocation hearing, involving the production of witnesses, is not required
when a defendant concedes that he violated the terms of the Community Corrections program and
elects to accept, knowingly and voluntarily, an increased sentence through negotiations with the
state. Cf. State v. Mahler, 735 S.W.2d 226 (Tenn. 1987). That the defendant chose to accept the 20-
year sentence, if under a Community Corrections program, would not have been erroneous.

        In State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996), this court ruled that the
purpose of the statute requiring a hearing is to ensure that a proper record is available for purposes
of appeal and, even though the hearing is to determine if the violations warrant a different alternative
sentence or incarceration, the statute does not permit the re-sentencing to be for the sole purpose of
punishment for program violations. While it is error for a trial court, absent a hearing, to impose a
greater term in the event of a violation of the conditions of a Community Corrections sentence, as
provided in State v. Crook, 2 S.W.3d 238, 241 (Tenn. Crim. App. 1998) (holding that a
predetermined sentence in the event of a violation is erroneous), the circumstances of this case are
different in that the terms of re-sentencing were established after the issuance of the first revocation
warrant, after the appearance of the defendant in open court, and after his voluntary consent to the
greater sentence in exchange for another opportunity to comply with the terms of his conditions of
release. If this had been a challenge to a 20-year sentence under Community Corrections as

         1
            (...continued)
the defendant." Id., at **13-14 (emphasis in original). Finally, the Court concluded that "every defendant has a right
to insist that the prosecutor prove to a jury [beyond a reasonable doubt] all facts legally essential to the punishment."
Id., at *31 (emphasis in original).



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established at the initial revocation hearing and as the issue has been addressed in the appellate
briefs, the judgment of the trial court would be affirmed.

        There was, however, a second warrant which under prior precedent required a hearing and
formal re-sentencing in accordance with the terms of the 1989 Act. That is, the 20-year sentence to
prison, which under Crook constituted an entirely new sentence, had to be supported by statutory
enhancement factors in order to be increased above the minimum. See State v. Samuels, 44 S.W.3d
489, 493-494 (Tenn. 2001). Because the trial court automatically imposed the 20-year sentence
without identifying the statutory sentencing factors and then ordered the term served in prison, there
was error, one which would ordinarily require a remand.

                                                    II
         The critical factor, however, is the terminology utilized in the original judgment and the
judgment modifying the term to 20 years. The trial court classified the alternative sentence as
probation in each of the judgments. The supervision of the probation was made the responsibility
of the Community Corrections officer. Because the plain language of the judgment controls, our
initial conclusion is that this is a case of probation.

       In State v. Samuels, our supreme court distinguished revocation of Community Corrections
from a revocation of probation. See id. While observing that trial courts, upon revoking a
Community Corrections sentence, have the authority to re-sentence the defendant for any period of
time up to the maximum sentence provided for the offense committed, it noted that a revocation of
probation "can only 'cause the defendant to commence the execution of the judgment as originally
entered . . . .'" Id. at 495 (quoting Tenn. Code Ann. § 40-35-311(d) (1997)) (emphasis added).

        As our high court has ruled in State v. Hunter, 1 S.W.3d 643 (Tenn. 1999), trial courts are
limited upon a revocation of probation. There is only authority to order incarceration, require service
of the original judgment, Tenn. Code Ann. §§ 40-35-310, -311, or to extend the probationary term
for up to two years, Tenn. Code Ann. § 40-35-308(c); see State v. Calvin Reeves, No. M2002-02976-
CCA-R3-CD (Tenn. Crim. App., at Nashville, July 2, 2004). Further, a defendant is not entitled to
a credit for any time spent on probation unless the entire term is successfully completed. State v.
Taylor, 992 S.W.3d 941 (Tenn. 1999).

         Because this was a probationary term, the trial court had neither the authority to increase the
sentence beyond the original term nor the power to grant credits for the time the defendant was
supervised by the official within the Community Corrections program. The general rule is that an
illegal sentence may be corrected at anytime. See State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.
1978) (noting that the trial court had the power and duty to correct an illegal sentence at any time).
A sentence is illegal if it directly contravened a statute in existence at the time it was imposed.
Taylor v. State, 995 S.W.2d 78, 85 (Tenn. 1999).




                                                  -5-
                                               III
        There is another problem. The defendant received a Range II sentence of 12 years, the
minimum possible with a maximum of 20 years. While the defendant was eligible for a Community
Corrections sentence, no form of probation may be granted unless a defendant is sentenced to "eight
years or less." Tenn. Code Ann. § 40-35-303(a).

        Although not raised as an issue by the parties, there is clearly an invalid sentence. Ordinarily,
courts will not consider issues that are not raised by the parties. State v. Walton, 958 S.W.2d 724,
727 (Tenn. 1997); State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984). If the error is plain on the face
of the record, however, it is a proper consideration for an appellate court whether properly assigned
or not. Walton, 958 S.W.2d at 727; Ogle, 666 S.W.2d at 60. An error affecting the substantial rights
of the accused may be noticed at any time where necessary to do substantial justice. Tenn. R. Crim.
P. 52(b); Walton, 958 S.W.2d at 727. It is well settled that a judgment imposed by a trial court in
direct contravention of express statutory provisions regarding sentencing is illegal and is subject to
being set aside at any time, even if it has become final. McConnell v. State, 12 S.W.3d 795, 798
(Tenn. 2004).

       Because both the judgment entered pursuant to the plea agreement and the judgment
providing for an increased term to 20 years while continuing a probationary term, provided for illegal
sentences, the conviction must be set aside. The cause is remanded for a new trial.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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