         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 16, 2004

                  STATE OF TENNESSEE v. DERRELL BENDER

                     Appeal from the Criminal Court for Davidson County
                           No. 2002-D-2429    Steve Dozier, Judge



                   No. M2004-01175-CCA-R3-CO - Filed February 8, 2005


The Appellant, Derrell Bender, appeals the Davidson County Criminal Court’s denial of his “Motion
for Reduction or Modification of Sentence” filed pursuant to Tenn. R. Crim. P. 35(b). Bender pled
guilty to voluntary manslaughter and received an agreed-upon sentence of ten years as a Range III
career offender. In his motion, Bender requested that the trial court impose a sentence within the
sentence range of a Range I standard offender. The trial court denied the motion, finding that Bender
was “not an appropriate candidate for a suspended sentence.” Bender seeks review pursuant to a
“Petition for Common Law Writ of Certiorari.” Because the trial court’s order fails to address
Bender’s request for sentencing as a Range I offender, we reverse and remand to the trial court for
reconsideration of the Rule 35 motion.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE, JJ., joined.

Derrell Bender, Pro Se, Tiptonville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Seth P.
Kestner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela
Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                        Procedural History

       On December 10, 2002, a Davidson County grand jury returned a two-count indictment
charging the Appellant with first degree murder and unlawful possession of a weapon. On December
12, 2003, as part of a negotiated plea agreement, the Appellant pled guilty to voluntary manslaughter,
a class C felony, and was sentenced to ten years as a career offender. As part of the agreement, the
Appellant accepted a sentence which was outside his sentencing range.

        In March 2004, the Appellant filed the instant pro se “Motion for Reduction or Modification
of Sentence” pursuant to Tenn. R. Crim. P. 35(b). In the motion, the Appellant asserted that, while
he pled guilty as a career offender, he does not qualify for that range as he only has one prior felony
conviction. Accordingly, “in the interest of justice,” he requested that the trial court reduce his
sentence to reflect a standard offender range. On March 31, 2004, the trial court, by order, denied
the motion. The Appellant subsequently appealed by filing a “Petition for Writ of Certiorari from
Denial of Reduction of Sentence.”

                                                Analysis

        On appeal, the Appellant argues that his sentence should be reduced to conform to his status
as a Range I offender, asserting that it was error for the trial court to accept the plea which resulted
in a sentence outside the appropriate range.

        Modification of a sentence may be granted under Rule 35(b), Tennessee Rules of Criminal
Procedure, if the trial court finds “in the interest of justice,” that the sentence must be reduced. State
v. Hodges, 815 S.W.2d 151, 154 (Tenn. 1991). Rule 35 provides in relevant part that the “trial court
may reduce a sentence upon application filed within 120 days after the date the sentence is imposed.
. . .” Tenn. R. Crim. P. 35(b). In this case, review of the record indicates that the Appellant’s Rule
35 motion requesting modification was timely filed with the trial court.

       The Appellant acknowledges that his guilty plea was entered pursuant to Rule 11(e)(1)(C),
Tennessee Rules of Criminal Procedure, and that he agreed to accept a sentence outside his range.
Further, he acknowledges that under State v. McDonald, 893 S.W.2d 945 (Tenn. Crim. App. 1994),
when a trial court accepts a Rule 11(e)(1)(C) plea, the agreed upon sentence is generally not
modifiable absent unusual circumstances, such as unforeseen post-sentencing developments. Id. at
948. However, the Appellant asserts that the “departure from the sentencing guidelines of the 1989
Act” by sentencing him outside his sentencing range warrants reduction. Accordingly, in his motion,
he requested that “the Court modify petitioner’s sentence to reflect the punishment as stipulated in
T.C.A. § 40-35-112 (a) (3), NOT LESS THAN THREE (3) NOR MORE THAN SIX (6)” and that
“the Court declare Petitioner eligible for probation pursuant to T.C.A. § 40-35-303, upon said
modification of sentence.” Tennessee Code Annotated section 40-35-303 simply provides that a
defendant is eligible for probation if the resulting sentence is less than eight years.

        The trial court’s order denying the motion recites that “[t]he defendant is asking the court to
modify his current sentence and place the defendant on a form of supervised release for the
remainder of her [sic] sentence.” Based upon this misreading, the trial court ruled that the Appellant
“is not an appropriate candidate for a suspended sentence at this time.” As evidenced by the
Appellant’s Rule 35 motion, he is not asking for a suspended sentence but rather a sentence of three
to six years which would make him statutorily eligible for probation. Because the trial court’s order


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fails to address the Appellant’s request for a Range I sentencing, we remand for reconsideration of
the motion.

                                        CONCLUSION

       Based upon the foregoing, the case is reversed and remanded to the Davidson County
Criminal Court for reconsideration of the Appellant’s Rule 35 “Motion for Reduction or
Modification of Sentence” in accordance with this opinion.



                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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