        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs May 20, 2014

             STATE OF TENNESSEE v. AMANDA HOPE McGILL

                   Appeal from the Circuit Court for Sullivan County
                    Nos. S59,518 & S59,479 R. Jerry Beck, Judge


                  No. E2013-02069-CCA-R3-CD - Filed June 20, 2014


The Defendant, Amanda Hope McGill, appeals as of right from the Sullivan County Circuit
Court’s judgment concluding that it did not have jurisdiction over her motion to modify her
sentence. Because the Defendant filed her motion well past the 120-day time limit imposed
by Tennessee Rule of Criminal Procedure 35, and because the Defendant was housed in a
facility under contract with the Tennessee Department of Correction, we agree with the trial
court that it lacked jurisdiction to entertain the Defendant’s request for concurrent sentencing
or placement in the Community Corrections Program. Therefore, the judgment is affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and J EFFREY S. B IVINS, JJ., joined.

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Amanda Hope McGill.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Joshua D. Parsons,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND]

       On May 9, 2012, the Defendant pled guilty as charged in Sullivan County Case
Numbers S59,513 and S59,479, resulting in her convictions for six counts of forgery, a Class
E felony; two counts of theft of property valued over $500, a Class E felony; and five counts
of identity theft, a Class D felony. See Tenn. Code Ann. §§ 39-14-103, -105, -114, -150.
Pursuant to the terms of the agreement, she received a sentence of six years for each Class
E felony and twelve years for each Class D felony; all sentences were to be served
concurrently in the Tennessee Department of Correction (TDOC) as a Range III, persistent
offender with forty-five percent release eligibility. The agreement further specifically
provided that this effective twelve-year sentence was to be served consecutively to the
Defendant’s “[c]urrent TDOC sentences (Hamblen Co. 10CR571; Hawkins Co. 10CR447-9,
10CR496-501).” The agreement was accepted by the trial court, and judgments of conviction
were filed on May 16, 2012.1

        Over a year later, on July 29, 2013, the Defendant, with the assistance of counsel, filed
a “Motion to Reconsider/Modify Sentence,” asking the trial court to “modify[] her sentence
in the aforementioned cases so that it runs concurrently with her previous sentence entered
by the Criminal Court for Hawkins County.” In support of this motion, the Defendant
argued,

          [T]hese sentences should have been run concurrently in the first place, as [the
          Defendant] was not released on bond between the offenses, the dates of
          offense for all crimes was the same (or within a very limited time period), the
          offenses were not violent crimes, and the statutory preference is for concurrent
          sentences. Further, . . . although the offenses in both jurisdictions occurred at
          approximately the same time, she was sentenced in the Third District before
          she was transported to Sullivan County in order to address the instant charges.
          She was represented by the respective Public Defenders[’] offices in each
          jurisdiction, independently of each other.

The Defendant also “pray[ed] for any further relief” deemed appropriate. In the motion, it
was noted that the Defendant, at all relevant times, had been housed “at the work camp at the
Johnson City Women’s Facility.” The TDOC had contracted with Johnson City to house
certain prisoners receiving TDOC sentences.2

      Following a hearing, the trial court denied the Defendant’s motion. This timely appeal
followed.

      The trial court treated the Defendant’s motion as one seeking a reduction of sentence
pursuant to Tennessee Rule of Criminal Procedure 35. Rule 35 provides as follows:




1
    No transcript of the guilty plea hearing is included in the appellate record.
2
 It appears that, during the pendency of this appeal, the Defendant was transferred to a TDOC facility in
Memphis.

                                                       -2-
                 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 extensions shall be allowed on the time limitation. No other
          actions toll the running of this time limitation.

Tenn. R. Crim. P. 35(a). The trial court determined that, because the motion was filed well
past the 120-day deadline, it lacked jurisdiction to entertain such a motion.

       Normally, a defendant may only file a motion such as this one for 120 days after the
judgment becomes final. See Tenn. R. Crim. P. 35(a). However, when a defendant remains
incarcerated in a local jail, that defendant may move the trial court for alteration of his or her
sentence beyond the 120-day time limit. See Tenn. Code Ann. §§ 40-35-306, -307, -311, -
312, -314; State v. Malcolm Collins Lewis, No. M2007-00610 -CCA-R3-CD, 2008 WL
1891438, at *1-4 (Tenn. Crim. App. Apr. 29, 2008).

        It appears that the Defendant was originally housed in the Sullivan County Jail and
was then transferred to the Johnson City facility, a facility that was under contract with the
TDOC to house certain TDOC inmates.3 The Defendant argues that section 40-35-212(d)
allows the trial court to consider the motion, akin to a petition for early release, because the
Defendant was incarcerated in the Johnson City facility, which is a local jail not a TDOC
facility according to the Defendant.

          Tennessee Code Annotated section 40-35-212 provides, in pertinent part, as follows:

                  (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



3
    Tennessee Code Annotated section § 4-3-603(b) permits the commissioner to engage in such a practice:

                   In addition to any other duties provided by law, when it appears to the
          commissioner, in the commissioner’s sole discretion, that the available facilities and
          institutions of the department that are designed for the custody of inmates are overcrowded,
          the commissioner shall endeavor to alleviate such overcrowded conditions by contracting
          with local governmental entities, when possible, for the care, custody, and control in local
          jails, workhouses, penal farms or other such facilities, of inmates who have been committed
          to the department, or by any other means permitted by law.

                                                      -3-
          transfer to the department. The jurisdiction shall continue until the defendant
          is actually transferred to the physical custody of the department.

(Emphasis added).

       We conclude that the Defendant in this case was transferred to the physical custody
of the TDOC upon her transfer to serve her TDOC sentence in the Johnson City facility.
Upon her transfer to the Johnson City facility, the Defendant was incarcerated in Washington
County.4 Once there, she was in a facility under contract to house TDOC inmates, and it
does not appear from the record that she was awaiting any further transfer at that time.
Moreover, regardless of the fact that her daily care and supervision was provided by the
Johnson County facility, two important facts remain: first, Sullivan County no longer had
custody of the Defendant; and two, the TDOC had the authority to decide when the
Defendant was to be released from confinement. The TDOC, not the trial court, is in the best
position under these circumstances, to determine if the Defendant is eligible for an alternative
sentence. This conclusion also promotes uniformity with laws governing private facilities
under contract with the TDOC. See Tenn. Code Ann. § 41-24-110 (under the Private Prison
Contracting Act of 1986, a contract for correctional services may not delegate certain duties
of the TDOC Commissioner to a prison contractor).

       Moreover, section 40-35-212 does not provide the Defendant an avenue to address the
propriety of the consecutive nature of her sentences entered pursuant to a guilty plea.
Following the Defendant’s transfer to the Johnson City facility, and the expiration of the 120-
day period of Rule 35, we agree with the trial court that it no longer had jurisdiction to
entertain any request by the Defendant for an alternative sentence. Accordingly, the
judgment of the trial court is affirmed.


                                                            ________________________________
                                                            D. KELLY THOMAS, JR., JUDGE




4
    We take judicial notice of the fact that the Johnson City facility is located in Washington County.

                                                      -4-
