        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs April 21, 2010

                 STATE OF TENNESSEE v. ROBERT CONLEY

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2004-A-597    Cheryl Blackburn, Judge




                No. M2009-00676-CCA-R3-CD - Filed February 8, 2011


Defendant, Robert Conley, filed a pro se notice of appeal which was timely as to the trial
court’s order denying Defendant’s motion for reduction of sentence pursuant to Tennessee
Rule of Criminal Procedure 35. The trial court subsequently appointed counsel to represent
Defendant. In his brief on appeal, Defendant challenges the trial court’s order revoking his
community corrections sentence and ordering service of the fourteen-year sentence by
incarceration, in addition to arguing that the trial court erred by denying his Rule 35 motion.
We conclude that the issue regarding revocation of the community corrections sentence is
waived by Defendant’s failure to timely appeal that order. Further, we find that the trial court
did not abuse its discretion by denying Defendant’s Rule 35 motion, and, accordingly affirm
the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Robert Conley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Jeff Burks, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

       A concise outline of the procedural history of Defendant’s case is beneficial in our
review in this appeal. While the original judgment of conviction is not included in the
appellate record, we glean from the amended judgment and the trial court’s comments in the
transcripts that, following a jury trial in June 2006, Defendant was convicted of sale of less
than 0.5 grams of cocaine. He was originally sentenced to twelve years at 45% as a
persistent offender. He was allowed to serve the sentence in the community corrections
program.

       A community corrections violation by Defendant in September 2006 resulted in an
increase in the sentence length to fourteen years, but Defendant was still allowed to serve it
in the community corrections program. In February of 2007 another violation resulted in
Defendant having to serve a year of incarceration, after which he was again placed into
community corrections.

       Finally, in July 2008, another community corrections violation warrant was filed,
alleging that Defendant tested positive for cocaine in a June 2008 urine sample, that he was
delinquent in paying supervision fees and court costs, and that he had violated his curfew.
Following a hearing on August 6, 2008, at which Defendant conceded he had violated
conditions of his community corrections sentence, the trial court took the issue of disposition
under advisement until August 22, 2008.

       However, an amended violation warrant that was filed August 22, 2008, and another
warrant filed September 12, 2008, resulted in the final hearing being delayed until October
3, 2008. The amended warrants alleged that Defendant had absconded by not reporting to
his supervising officer and had been arrested (and convicted) in Williamson County for
driving on a suspended driver’s license, after being stopped by police for driving without
using a seat belt. As a result of that hearing, the trial court entered an amended judgment on
October 3, 2008 which revoked Defendant’s community corrections sentence and ordered
him to serve his fourteen-year sentence, with consideration of appropriate statutory jail
credits, in the Tennessee Department of Correction.

       On December 8, 2008, Defendant, through his appointed counsel, filed a motion to
reduce the sentence imposed on October 3, 2008, pursuant to Tennessee Rule of Criminal
Procedure 35. Following a hearing on the Rule 35 motion, the trial court denied the motion
on February 20, 2009. On Monday March 23, 2009, Defendant filed a pro se notice of
appeal “from the adverse judgment he received in this cause.”

                           Revocation of Community Corrections

       The trial court’s order revoking Defendant’s sentence in the community corrections
program and requiring him to serve his sentence by incarceration in the Tennessee
Department of Correction was entered on October 3, 2008. Defendant did not file any notice
of appeal in his case until he filed a generalized notice of appeal on the last available date to

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timely appeal from the trial court’s order denying the Rule 35 motion. While Tennessee Rule
of Appellate Procedure 4(a) states that a notice of appeal must be filed within thirty days of
entry of the judgment appealed from, the notice of appeal in criminal cases is not
jurisdictional, and Rule 4(a) provides that the timely filing of a notice of appeal “may be
waived in the interest of justice.” In considering whether the timely filing of the notice of
appeal should be waived, we note that Defendant had twice before the instant violations been
found in violation of his conditions of the community corrections sentence, yet he was
ultimately placed back into the community corrections program. He conceded the violations
which led to the ultimate revocation of his community corrections sentence in October 2008.
While the issue of disposition was under advisement, Defendant was arrested and found
guilty of driving on a suspended driver’s license after being stopped by police for driving
without using a seat belt. The “interest of justice” does not require that a generic notice of
appeal, which was filed more than four months late, and which did not specifically describe
the order from which the appeal was taken, should suffice to waive the timely filing of the
notice of appeal.

       Accordingly, this issue is waived.

                                   Denial of Rule 35 Motion

      Appellate review of the trial court’s ruling which denied a Tennessee Rule of Criminal
Procedure 35 motion is governed by the “abuse of discretion” standard. State v. Irick, 861
S.W.2d 375, 376 (Tenn. Crim. App. 1993). This Court should find that a trial court has
abused its discretion only 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 party
complaining. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

        Relying on Ruiz, Defendant argues that it was illogical and unreasonable for the trial
court to order his fourteen-year sentence to be served by incarceration “because of an arrest
for driving on a suspended license.” Defendant asserts that the trial court “reiterated” at the
Rule 35 motion hearing that “[the court] had sent [Defendant] to the Department of
Correction[] on a lengthy sentence [fourteen years] for being arrested on a moving violation.”

         Despite hearing testimony from Defendant’s girlfriend at the Rule 35 motion hearing
that Defendant was compelled to drive her car on the day of his arrest when she became too
ill to drive, the trial court saw no reason to justify granting the extraordinary relief authorized
by Tennessee Rule of Criminal Procedure 35. In so ruling, the trial court stated:

       And I recall my struggle with this because it’s awful to send somebody to the
       Department of Correction[] for a lengthy sentence when it’s like being arrested

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       on a seat belt violation. But that wasn’t the only thing. If you look at the
       warrant, there was also positive screens for cocaine. So anyway I just
       remember my struggle with it because it seems like such a harsh punishment
       even though he originally agreed to it. But we worked with [Defendant], we
       worked with [Defendant], and we worked with [Defendant]. So the question
       is: Is there anything that’s contemplated by Rule 35 that I’ve heard today?
       Because if you look at the comments under Rule 35, it says the intent of this
       rule is to allow modification only in circumstances where an alteration of the
       sentence may be proper in the interest of justice. It’s a modification where
       there’s no other mechanism for which you could do this. It’s sort of a safety
       valve in the law. I’ve always considered it basically for manifest injustice.
       And I understand [Defense counsel’s] position in that – the question is then
       would I have done anything differently if I heard from his girlfriend at the time
       [of the revocation hearing]. Quite honestly I wouldn’t have. I mean, I
       understand what she’s saying, but I already knew about all that. (emphasis
       added).

        Clearly, the trial court did not revoke Defendant’s community corrections sentence
and send him to serve a fourteen-year sentence, or deny his Rule 35 motion, solely because
Defendant was “arrested on a moving violation.” We find nothing in the record to indicate
that the trial court abused its discretion by denying Defendant’s Rule 35 motion. Defendant
is not entitled to relief in this appeal.

                                      CONCLUSION

       For the reasons stated, we affirm the judgment of the trial court.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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