              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE                   FILED
                                 JUNE 1998 SESSION
                                                                    October 2, 1998

                                                                   Cecil Crowson, Jr.
                                                                   Appellate C ourt Clerk

STATE OF TENNESSEE,                       )
                                          )       C.C.A. NO. 03C01-9707-CC-00311
              Appellee,                   )
                                          )       BLOUNT COUNTY
VS.                                       )
                                          )       HON. D. KELLY THOMAS, JR.,
KENNETH W. ERVIN,                         )       JUDGE
                                          )
              Appellant.                  )       (Resentencing)



                                      DISSENT




              I respectfully disagree with the majority’s conclusion that if the trial court

finds that the defendant’s guilty pleas were conditioned upon the concurrent service of

his sentences, he should then be allowed to withdraw his guilty pleas. In my view,

because the defendant has already been resentenced outside of the plea agreement for

violating the terms of his community corrections contract, the plea agreement is no longer

an issue in this case.



              The majority relies upon State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978);

State v. Jon Connors, C.C.A. No. 03C01-9506-CC-00176, Blount County (Tenn. Crim.

App. filed December 17, 1996, at Knoxville), as authority for the proposition that when a

defendant’s plea bargain is conditioned upon the imposition of concurrent sentences and

he or she is originally sentenced to concurrent sentences, he or she must be allowed to

withdraw his or her plea before a court exercises its authority to correct the defendant’s

sentence by imposing consecutive sentences pursuant to Tennessee Rule of Criminal
Procedure 32(c). In my view, however, Burkhart and Connors are distinguishable from

the instant case because neither of these cases involved a defendant whose community

corrections contract was revoked before the Rule 32 error was caught and corrected,

which is the situation here.



              When a defendant violates the terms of his community corrections contract,

the trial court has the statutory authority to resentence the defendant, up to the maximum

sentence provided for the offense committed. T.C.A. § 40-36-106(4). Resentencing a

defendant upon revocation of his or her community corrections contract is done

regardless of whether the defendant’s original sentence was imposed pursuant to a plea

bargain agreement. See, e.g., State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App.

1996); State v. Randall Dean Cooper, C.C.A. 03C01-9601-CC-00031, Sevier County

(Tenn. Crim. App. filed April 7, 1998, at Knoxville)(noting that the defendant’s new

sentence following revocation of community corrections is based on the evidence

presented at trial and at the sentencing hearing, the presentence report, and the

defendant’s prior convictions). In this way, once a defendant’s behavior causes his

community corrections sentence to be revoked, his behavior, in essence, also causes any

prior plea bargain agreement to no longer be controlling or even exist. Thus, once a

defendant accepts a sentence in the community corrections program, he is presumed to

know the law and know that if he violates the terms of his community corrections contract,

he will be risking an increased sentence.



              In the instant case, the defendant’s original sentence involved a term on

community corrections, pursuant to a plea agreement. The defendant’s behavior caused

his community corrections contract to be revoked, at which time the defendant was

resentenced without any regard to his prior plea agreement. The defendant concedes



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that the increased sentence of five years he received after revocation of his community

corrections contract was proper, even though the record suggests it was apparently

based solely upon the State’s recommendation. Cf. id. After the trial court reviewed the

defendant’s case file and realized that his concurrent sentences were illegal, the trial

court imposed consecutive sentences upon the defendant, as Rule 32(c)(3)(C) requires.

Since the defendant has already been resentenced without regard to his prior plea

agreement, I see no reason why the plea agreement should now be resurrected in the

sense that the defendant should be allowed to withdraw his guilty pleas.



             This is not a situation where the defendant is allowed to withdraw his guilty

pleas because the original terms of his plea bargain agreement, the very thing for which

the defendant negotiated in exchange for his guilty pleas, cannot be enforced. See, e.g.,

Burkhart, 566 S.W.2d at 873; Connors, C.C.A. No. 03C01-9506-CC-00176. Rather, the

plea bargain agreement in this case has already been satisfied; the defendant received

the benefit of his bargain when he was sentenced pursuant to his plea agreement.

However, when the defendant violated the terms of his community corrections contract

and was resentenced without regard to his prior agreement, as § 40-36-106(4) provides,

the defendant’s plea bargain agreement ceased being an issue.               Under these

circumstances, and regardless of whether the defendant’s guilty pleas were conditioned

upon the imposition of concurrent sentences, the defendant should not be entitled to

withdraw his guilty pleas before his illegal sentence is corrected to reflect consecutive

rather than concurrent sentences, as required by Rule 32(c)(3)(C).



             I also respectfully disagree that the defendant’s sentence on each count

should be reduced to five years because, in my view, enhancement factor (3), that the

offenses involved more than one victim, see § 40-35-114(3), does apply to enhance the



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defendant’s sentences in the aggravated burglary cases. A “victim” is defined as “a

person or entity that is injured, killed, had property stolen, or had property destroyed by

the perpetrator of the crime.” See State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim.

App. 1994). “Injury” is not limited solely to physical injury, but can also encompass

emotional or psychological injury. See State v. Michael Wilson, 01C01-9602-CC-00073,

Putnam County (Tenn. Crim. App. filed July 31, 1997, at Nashville). Thus, this Court has

surmised that “upon proper proof, a single burglary could victimize multiple residents who

were absent at the time of the burglary.” Id.



              In the instant case, the record reflects that the burglary charged in C-8252

has caused the young children of the family whose home was burglarized to be quite

fearful to be in their own home. This type of emotional injury suffered by more than one

person living in the home is enough to justify enhancing the defendant’s sentence under

§ 40-35-114(3) on the aggravated burglary count charged in C-8252. I would hesitate to

apply this factor to enhance the sentence on the aggravated burglary charged in C-8088,

though, because the record fails to disclose more than one individual who was injured,

and thus victimized, by that burglary. See, e.g., State v. Clabo, 905 S.W.2d 197 (Tenn.

Crim. App. 1995). Nevertheless, considering the trial court’s findings and the evidence

supporting those findings, I would conclude that the defendant has not overcome the

presumption of correctness to show how a sentence of six years for each offense is

inappropriate in this case.




                                                 _______________________________
                                                 JOHN H. PEAY, Judge




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