         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 6, 2007

               STATE OF TENNESSEE v. RODERICK CHAPMAN

                      Appeal from the Criminal Court for Shelby County
                        No. 05-06763    James C. Beasley, Jr., Judge



                   No. W2007-00140-CCA-R3-CD - Filed January 10, 2008


The defendant, Roderick Chapman, pleaded guilty to counts of burglary and aggravated assault and
was sentenced as a Range II offender in Shelby County Criminal Court to an effective five-year term
to be served in a community corrections program, with the first year to be served in the Synergy drug
treatment program. On January 5, 2007, the court revoked the community corrections sentence and
resentenced the defendant as a career offender to serve twelve years in the Department of Correction.
From that order, the defendant appeals. Upon review, we affirm the judgment below as modified.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed as Modified

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and J.C. MCLIN , JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
Pam Fleming, Assistant District Attorney General; and David Pritchard, Assistant District Attorney
General, for the appellee, State of Tennessee.

Garland Erguden, Assistant Public Defender; Rusty White, Assistant District Public Defender; and
Michael Johnson, Assistant District Public Defender, for the appellant, Roderick Chapman.

                                            OPINION

               On September 27, 2005, the Shelby County Grand Jury indicted Roderick Chapman,
the defendant, on counts of burglary and aggravated assault. On March 15, 2006, the defendant
pleaded guilty to the charges. Although the defendant had sufficient felony convictions to be
sentenced as a career offender, his plea agreement sentenced him as a Range II offender. He
received a sentence of five years for the burglary conviction and a concurrent sentence of eleven
months and twenty-nine days for the assault conviction. The defendant was allowed to serve his
sentence in the community corrections program, and was released to the Synergy Foundation, a
residential drug treatment program, for a one year treatment regime under the supervision of
community corrections.
               At the sentencing hearing, the defendant testified that he was forty-two years old and
had a criminal history consisting of twenty-one convictions, twelve of which were felony
convictions. He admitted to having a drug problem, and sought to be placed in the Synergy drug
treatment program for help with his addiction to crack cocaine. He testified that he understood that
Synergy was a program with very strict rules, and that if he violated them he would be discharged
from the program, and be in violation of his probation.

                 Upon questioning from the court, the defendant agreed that he was a career offender.
The judge stated that as a career offender, a guilty plea to the burglary charge would be subject to
a sentence of twelve years with a sixty percent service requirement. The judge told the defendant
that if he violated the terms of his community corrections, he would no longer have the benefit of
a five-year sentence as a Range II offender and would be resentenced as a career offender.

                 A revocation hearing was held for the defendant on January 5, 2007. Feleicia Elion
testified that she was the defendant’s case officer in the community corrections program and that he
was placed under her supervision on April 24, 2006. Ms. Elion testified that on September 25, 2006,
she received a phone call from Jack Scott at Synergy, informing her that the defendant had been
unsuccessfully discharged from the program. On cross examination she testified she received a fax
September 26, 2006 providing more details of the discharge. The fax stated that the defendant was
discharged due to a relationship with a woman, and it was noted that his “attitude and behavior over
the last week or 10 days had been characterized as no humbleness, no humility. And when he was
confronted about the violation, he became - had a negative outburst and then they had to calm him
down with threats of leaving the facility.” Ms. Elion’s attempts to contact the defendant after
receiving word of his discharge from Synergy were unsuccessful.

                 The defendant testified a female patient at Synergy placed a letter in his “study folder”
stating that she liked him and wanted to talk to him. Such a relationship was a violation of the
Synergy Program rules. He testified that he turned the letter over to a Synergy supervisor, who
turned it over to Jack Scott. The defendant and the female patient were both subsequently terminated
from the program. After his termination, the defendant stayed two nights at the mission, then
returned to his home. He testified that he did not contact Ms. Elion because her office had relocated,
but he took responsibility for his failure to make contact. He testified that he turned himself in when
he learned there was a warrant out for his arrest.

               On cross examination, the defendant testified that he didn’t know why anyone at
Synergy would report he had a negative attitude. He said it could possibly be the result of a
conversation between him and Mr. Scott about a coin given to those in recovery programs. He stated
that possibly Mr. Scott misinterpreted his attitude.

                 The trial court concluded the defendant had violated the terms of his community
corrections sentence and ordered it revoked. The trial court noted the defendant’s lengthy criminal
history, including his numerous felony convictions. After finding no enhancement or mitigating
factors, the trial court determined that the defendant was a career offender, and as such, sentenced


                                                   -2-
him to twelve years to be served in the Department of Correction with seven and a half months
“street credit”.

                The defendant filed a timely appeal which does not challenge the revocation but
argues that the trial court’s resentencing him as a career offender was prohibited by State v. Patty,
922 S.W.2d 102 (Tenn. 1995). The state counters that the sentence is proper because the defendant’s
criminal history qualified him as a career offender, and that the community corrections statutes have
been amended since Patty to allow such an increase.

                 Appellate review of the length, range, or manner of service of a sentence imposed by
the trial court is de novo on the record with a presumption that the trial court’s determinations are
correct. T.C.A. § 40-35-401(d) (2006). However, if “it appears that the trial court has failed to
consider or comply with the statutory provisions governing sentencing, appellate review is de novo
on the record without a presumption of correctness.” State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001) (citing State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000)). When a trial court revokes a
defendant’s community corrections sentence,

               the court may resentence 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 any community-based alternative to incarceration.
               The resentencing shall be conducted in compliance with § 40-35-210.

T.C.A. § 40-36-106(e) (4) (2006). The trial court may impose a sentence greater than the original
sentence without offending the double jeopardy provisions of either the United States Constitution
or Tennessee Constitution. State v. Griffith, 787 S.W.2d 340, 341-42 (Tenn. 1990). Nonetheless,
before ordering a new sentence, the trial court must conduct a sentencing hearing pursuant to the
principles of sentencing. See State v. Cooper, 977 S.W.2d 130, 132 (Tenn. Crim. App. 1998).
Furthermore, the trial court must state on the record its reasons for imposing a new sentence and
“shall include specific findings of fact upon which application of the sentencing principles was
based.” T.C.A. § 40-35-209(c) (2006); State v. James Austin Patterson, No. 02C01-9308-CC-
00174, slip op. at 3 (Tenn. Crim. App., Jackson, May 25, 1994); see generally State v. Ervin, 939
S.W.2d 581 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. 1997).

                In Patty, our supreme court held that section 40-36-106(e) (4) did not authorize
resentencing in a higher range than that of the original sentence. Patty, 922 S.W.2d at 103. In that
case, Mr. Patty originally received two-year Range I sentences for each of the two Class E felonies
for which he was convicted. After revoking his community corrections sentence, the trial court
increased the defendant’s sentences to four years each, even though the maximum sentence for a
Range I offender convicted of a Class E felony was two years. The supreme court upheld this court’s
decision that the trial court’s resentencing was not authorized, holding “that a trial judge imposing
a new sentence as a result of community corrections failure is bound to sentence the defendant within
the range of the original sentence.” Id. at 104.


                                                -3-
               The state argues that since the decision in Patty, the community corrections statute
was amended to require that resentencing be conducted pursuant to the sentencing procedures set
forth in Tennessee Code Annotated section 40-35-210, which provides that “[a]t the conclusion of
the sentencing hearing, the court shall first determine the appropriate range of sentence.” T.C.A. §
40-35-210(a) (2006). The state argues that it was therefore proper for the trial court to determine the
defendant was a career offender at his resentencing hearing.

                This court heard a similar argument in State v. Lee, W2006-01849-CCA-R3-CD, slip
op. at 1 (Tenn. Crim. App., Jackson, Aug. 3, 2007). The Lee case involved a defendant originally
sentenced as a Range I offender, but later resentenced as a Range II offender after his community
corrections sentence was revoked. See id. The court addressed the argument that held that the
amendments to Tennessee Code Annotated section 40-35-210 allowed a trial court to increase a
defendant’s range at sentencing, finding

                Under section 40-35-210(a), to determine a defendant’s sentence, a
                trial court “shall first determine the appropriate range of sentence.”
                This does not, however, give the trial court any more power to alter
                a defendant’s original sentencing range after revoking a community
                corrections sentence that it would have to alter an already agreed-
                upon range that was accepted by the trial court in any other
                circumstance.

Lee, slip op. at 4.

                 The facts in this case mirror those in Lee. The trial court judge accepted the plea
agreement that sentenced the defendant as a Range II offender. He had the power to reject the plea
under Rule 32 and chose not to. We are sympathetic to the intent of the trial court judge in
sentencing the defendant as a Range II offender, therefore making him eligible for community
corrections and the Synergy program. The threatened twelve-year sentence for the defendant would
have made the defendant ineligible for probation because the sentence exceeded eight years. See
Tenn. Code Ann. § 40-35-303(a) (2003). Before being placed in community corrections, an
offender must first be eligible for regular probation. State v. Cowan, 40 S.W.3d 85, 86 (Tenn. Crim.
App. 2000) (citations omitted); State v. Kendrick, 10 S.W.3d 650, 655 (Tenn. Crim. App. 1999).
However, by accepting the plea agreement sentencing the defendant as a Range II offender, the law
is clear that the trial court cannot later alter the range when resentencing the defendant.

                The state further argues that this case is distinguished from Patty because the
defendant in this case was at all times a career offender. This argument was similarly rejected in
Lee. “Under Patty, whether a defendant actually qualifies for a range different from that under which
he was originally sentenced is not significant. Rather, the court held that upon revoking a
community corrections sentence, a trial court is ‘bound to sentence the defendant within the range
of the original sentence.’” Lee, slip op. at 3 (quoting Patty, 922 S.W.2d at 104 (emphasis added)).



                                                 -4-
              The state’s final argument, that the defendant knew he faced the risk of being
resentenced as a career offender if he violated the conditions of his community corrections, is
irrelevant.

                 The appropriate sentencing range for the defendant was Range II, which was the range
to which the defendant pleaded guilty and which the trial court originally applied. Therefore, the
defendant’s new sentence of twelve years exceeded the maximum sentence for his conviction range.
See T.C.A. § 39-14-402(c) (2003); 40-35-112(b) (4) (2003). The record makes it clear that given
the presentence report, the defendant’s criminal history, and the evidence presented at the
resentencing hearing, the intent of the trial court was to give the defendant the maximum sentence
available. In this case, the maximum sentence for a Range II offender convicted of a Class D felony
is eight years. See id. We therefore affirm the judgment of the trial court but modify the defendant’s
sentence to eight years in the Department of Correction as a Range II offender.


                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




                                                 -5-
