        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 21, 2009

              STATE OF TENNESSEE v. HERMAN SOWELL, JR.

             Direct Appeal from the Circuit Court for Rutherford County
                         No. F-60143     Don R. Ash, Judge


                No. M2008-02358-CCA-R3-CD - Filed March 17, 2010


Defendant, Herman Sowell, Jr., appeals the dismissal of his motion requesting the trial court
to modify his sentence of confinement to a suspended sentence. On appeal, Defendant
argues that the trial court abused its discretion in finding no change in circumstances which
would justify the requested modification. After a thorough review, we affirm the judgment
of the trial court.

   Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Gerald L. Melton, District Public Defender; Collier W. Goodlett, Assistant Public Defender,
Clarksville, Tennessee, for the appellant, Anthony Fulmer.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Jennings Jones, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

I. Background

        On February 28, 2008, Defendant entered a plea of guilty in case no. F-60143 to theft
of property valued between $1,000 and $10,000, a Class D felony. In exchange for
Defendant’s plea, the State agreed to dismiss a burglary charge in the same case, and to enter
a nolle prosequi to the charge of domestic assault in case no. M-60042 and to the charge of
driving on a revoked license in case no. M-60359. The trial court imposed the agreed upon
sentence of four years as a Range II, multiple offender, and, as part of the agreed upon
sentence, ordered Defendant to serve his sentence in confinement. On June 27, 2008,
Defendant filed a motion for reduction of sentence pursuant to Rule 35 of the Tennessee
Rules of Criminal Procedure. In his motion, Defendant asked the trial court to modify his
sentence of confinement to a probated sentence.

       At the hearing on Defendant’s motion, Defendant explained that he learned that his
wife, Tracy Sowell, was pregnant after he commenced service of his sentence. Defendant
stated that as a result of medical complications with her pregnancy, Ms. Sowell had been
placed on bed rest for the duration of her pregnancy and could not work as an accountant or
care for her ten-year-old daughter from another relationship. Defendant said that Ms. Sowell
was unable to meet her mortgage obligations as well as the family’s other monthly bills.
Defendant stated that if he were placed on probation, he would be able to return to his former
job as a barber and help the family financially.

        On cross-examination, Defendant acknowledged that he was sentenced as a Range II,
multiple offender, even though he had sufficient prior convictions to classify him as a Range
III, persistent offender, for sentencing purposes. Defendant also stated that the terms of his
negotiated plea agreement included an agreed upon sentence of four years to be served in
confinement.

        Ms. Sowell testified that she and Defendant had been married two years, and they and
Ms. Sowell’s ten-year-old daughter lived in a home purchased by Ms. Sowell approximately
seven years before her marriage. Ms. Sowell stated that before her pregnancy, she worked
for an accounting firm in Nashville. Ms. Sowell said that as a result of her pregnancy, she
is confined to bed and unable to work, although she violated her doctor’s orders in order to
be able to attend the hearing. Ms. Sowell stated that she is unable to keep current on her
outstanding bills, and her credit score had been adversely impacted. Ms. Sowell said that
Defendant contributed to the family income when he was working as a barber. Ms. Sowell
stated that her mother attempted to help with the monthly bills, but her mother was on a fixed
income.

        Certain medical records for Ms. Sowell were introduced as an exhibit at the hearing.
According to a letter from Ms. Sowell’s physician, Gina Hamrang, Ms. Sowell has been
under Dr. Hamrang’s care “for pregnancy from [February 27, 2008] through” the date of the
letter, May 16, 2008. The records also indicate that Ms. Sowell’s estimated delivery date
was November 2, 2008. The presence of hemorrhaging was detected on March 12, 2008, and
Ms. Sowell was placed on bed rest on April 9, 2008.




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II. Jurisdictional Challenge

        The State argues that the trial court did not have jurisdiction to hear Defendant’s
motion for reduction of his sentence because Defendant had been transferred to the
Department of Correction at the time he filed his motion. See T.C.A. §40-3-212(d)(1); State
v. Elvin Williams, No. M2006-00287-CCA-R3-CD, 2007 WL 551289 (Tenn. Crim. App., at
Nashville, Feb. 22, 2007), perm. to appeal denied.

       Rule 35 of the Tennessee Rules of Criminal Procedure provides as follows:

       (a) Timing of Motion. The trial court may reduce a sentence upon motion filed
       within 120 days after the date the sentence is imposed or probation is revoked.
       No extension shall be allowed on the time limitation. No other actions toll the
       running of this time limitation.

       (b) Limits of Sentence Modification. The court may reduce a sentence only to
       one the court could have originally imposed.

       (c) Hearing Unnecessary. The trial court may deny a motion for reduction of
       sentence under this rule without a hearing.

Tenn. R. Crim. P. 35(a)-(c)

      There is no dispute that Defendant was in the physical custody of the Department of
Correction at the time that he filed his motion. Tennessee Code Annotated section 40-35-212
provides in relevant part that:

       (c) Unless the defendant receives a sentence in the department, the court shall
       retain full jurisdiction over the manner of the defendant's sentence service.

       (d)(1) Notwithstanding the provisions of subsection (c), the court shall retain
       full jurisdiction over a defendant sentenced to the department during the time
       the defendant is being housed in a local jail or workhouse awaiting transfer to
       the department. The jurisdiction shall continue until the defendant is actually
       transferred to the physical custody of the department.

       In Elvin Williams, relying in part on section 40-35-212, a panel of this Court
concluded that a trial court lost jurisdiction to hear a Rule 35 motion after the defendant was
transferred to the Department of Correction. In two other unpublished decisions, however,
the panels reached a contrary result. See Joseph C. Edenfield, No. M2008-01683-CCA-R3-

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CD, 2009 WL 1065939 (Tenn. Crim. App, at Nashville, Apr. 21, 2009) no perm. to appeal
filed; State v. Lovard D. Horton, No. M2007-02163-CCA-R3-CD, 2008 WL 4377127 (Tenn.
Crim. App., at Nashville, Aug. 14, 2008), no perm. to appeal filed. In Lovard D. Horton, the
panel cited to the commission comments to section 40-35-212 which provides as follows:

       Subsections (c) and (d) provide that the judge has full jurisdiction to modify
       the terms and conditions of any sentence unless the defendant has been
       sentenced to the department. There are two exceptions. First, the trial judge
       may modify the sentence for a defendant sentenced to the department where
       the defendant is awaiting transportation to the department. Second, as provided
       in [section] 40-35-319(b), sentences may be modified pursuant to [Tennessee
       Rule of Criminal Procedure] 35(b), which permits modifications within 120
       days of sentencing.

T.C.A. § 40-35-212 (2006), Sentencing Comm'n Cmts (emphasis in original).

        As did the court in Joesph C. Edenfield, “we find the analysis and reasoning set forth
in Lovard D. Horton to be persuasive and illustrative of the correct jurisdictional
limitations.” Accordingly, we conclude that Tennessee Code Annotated section 40-35-212
does not prevent a trial court from exercising jurisdiction over a Rule 35 motion filed within
the applicable 120 days even though the defendant has been transferred to the physical
custody of the Department of Correction. Defendant filed his Rule 35 motion within 120
days of the date sentence was imposed. Thus, we will address the merits of Defendant’s
issue.

III. Abuse of Discretion

        Rule 35 “does not vest the defendant with a remedy as of right.” Elvin Williams, 2007
WL 551289, at *1. The Advisory Commission Comments to Rule 35 explain that “[w]hile
the judge may grant a hearing and modify the sentence, there is no requirement that a hearing
even be held in the discretion of the court.... The intent of this rule is to allow modification
only in circumstances where an alteration of the sentence may be proper in the interests of
justice.” A trial court's ruling on a Rule 35 motion will not be overturned absent an abuse
of discretion. State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993).

       We observe initially that it appears that Defendant entered his plea of guilty pursuant
to Rule 11(c)(1)(C) of the Tennessee Rules of Criminal Procedure. Tenn. R. Crim. P.
11(c)(1)(C) (providing that the State may “agree that a specific sentence is the appropriate
disposition of the case” as part of the negotiated plea agreement). That is, the State and
Defendant agreed to a specific sentence of four years to be served in confinement in the

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Department of Correction, which sentence was placed into effect by the trial court.
Alteration of a negotiated plea agreement sentence is limited in scope. State v. McDonald,
893 S.W.2d 945, 947 (Tenn. Crim. App. 1994) (citing State v. Grady Hargrove, Nos. 01S01-
9203-CC-00035; 01S01-9203-CC-00036; 03S01-9203-CC-00026, 1993 WL 300759, at *2
(Tenn., at Nashville, Aug. 9, 1993), reh'g denied, (Sept. 27, 1993)). Nonetheless, in
McDonald, we stated that “a situation may arise where unforeseen, post-sentencing
developments would permit modification of a sentence in the interest of justice.” Id.

        The unforseen circumstance relied upon by Defendant in support of his motion
involved the medical complications relating to Ms. Sowell’s pregnancy which impeded her
ability to support her family financially. Nonetheless, the trial court, after acknowledging
the unfortunate circumstances resulting from Ms. Sowell’s pregnancy, determined that the
interests of justice did not warrant a modification of Defendant’s sentence based on the facts
presented. A finding that a trial court has abused its discretion may only be reached 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 defendant. State v. Ruiz, 204 S.W.3d
772, 773 (Tenn. 2006).

        Based on our review, we conclude that the trial court did not abuse its discretion in
denying Defendant’s motion to modify his sentence. Defendant is not entitled to relief on
this issue.

                                      CONCLUSION

       After a thorough review, we affirm the judgment of the trial court.

                                                   _________________________________
                                                   THOMAS T. WOODALL, JUDGE




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