                                                                                         01/23/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              December 10, 2019 Session

        STATE OF TENNESSEE v. CHRISTOPHER BRETTON BLY

                  Appeal from the Circuit Court for Coffee County
             Nos. 40589, 41543, 41544, 45070 Vanessa Jackson, Judge
                     ___________________________________

                           No. M2018-00653-CCA-R3-CD
                       ___________________________________


Christopher Bretton Bly, Defendant, was arrested in Coffee County for two counts of
aggravated burglary, one count of theft under $500, two counts of vandalism over $1,000,
one count of theft over $1,000, one count of theft over $500, and one count of vandalism
under $500. Subsequent to this arrest, Defendant was incarcerated in the Tennessee
Department of Correction (“TDOC”) for a probation violation in Wilson County. After
Defendant completed his service on the Wilson County sentence, he pled guilty to the
charges in Coffee County. Defendant later filed a Rule 36 motion to obtain pretrial jail
credit on the Coffee County case, and the trial court partially granted the motion. On
appeal, Defendant argues that he is entitled to the time he served in TDOC on the Wilson
County probation violation as pretrial jail credit on the Coffee County case. After a
thorough review of the record and applicable case law, the judgments of the trial court are
affirmed.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Drew Justice, Murfreesboro, Tennessee, for the appellant, Christopher Bretton Bly.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Craig Northcott, District Attorney General; and Joshua C. Powell,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                Factual and Procedural History

      This appeal involves the timelines from three separate incidents: (1) Wilson
county convictions for aggravated burglary (the “Wilson County case”), (2) a Coffee
County conviction for theft (the “first Coffee County case”), and (3) additional Coffee
County convictions in cases 41,543F (aggravated burglary, theft under $500, vandalism
over $1,000) and 41,544F (aggravated burglary, theft over $1,000, vandalism over
$1,000, aggravated burglary, theft over $500, and vandalism under $500) (the “second
Coffee Count case”). The timeline as gleaned from the record is as follows:

       May 19, 2014: Defendant was sentenced in the Wilson County case to four years’
probation.

       May 28, 2014: Defendant pled guilty in the first Coffee County case and received
a four-year suspended sentence, ordered to be served consecutive to the Wilson County
case.

       August 14-15, 2014: Defendant committed aggravated burglary while on
probation and was arrested in the second Coffee County case.

        August 29, 2014: A violation of probation warrant was issued for Defendant’s
arrest for violating the terms of probation in the first Coffee County case. This warrant
was executed September 3, 2014.

       November 25, 2014: Defendant was sent to TDOC following the Wilson County
probation revocation.1

       September 2, 2016: Defendant’s Wilson County sentence expired.2

        May 15, 2017: The trial court issued an order revoking Defendant’s probation in
the first Coffee County case and sentencing him to serve his four-year sentence in TDOC.
The same day, Defendant pled guilty in the second Coffee County case and was
sentenced to serve ten years in TDOC. The judgment form stated that Defendant’s ten-
year sentence in the second Coffee County case was to be served concurrently with


       1
          It is unclear from the record when the Wilson County warrant was filed and served.
       2
          This date is mentioned in the record from the transcript of Defendant’s December 13, 2017
hearing on his Rule 36 motion and the trial court’s February 14, 2018 Order Granting Jail Credits. This
date is not contested by Defendant or the State on appeal.
                                                 -2-
Defendant’s four-year sentence in the first Coffee County case. The trial court failed to
grant any pretrial jail credit in the original judgments.

      August 28, 2017: Defendant filed a Rule 36 motion for jail credits in the second
Coffee County case.

        December 13, 2017: The trial court held a Rule 36 motion hearing in which
Defendant claimed that, while he was serving his sentence in TDOC on the Wilson
County case, he was simultaneously awaiting trial in his second Coffee County case.
Defense counsel stated, “[The Coffee County] sheriff sent [Defendant] to the TDOC to
continue awaiting the trial in [the aggravated burglary charges in the second Coffee
County case] and also to serve out his Wilson County sentence.” (emphasis added).
Defendant claimed that the trial court never found the second Coffee County case to be
consecutive to the Wilson County case, and thus, the second Coffee County case was
concurrent to the Wilson County case “by default.” Therefore, Defendant asserted, his
time served in TDOC on the Wilson County case should count as jail credit in the second
Coffee County case since they were being served “concurrently.” The State responded
that Defendant’s sentence in the Wilson County case was fully served before he entered
pleas on the second Coffee County case. Therefore, the State contended, Tennessee Rule
of Criminal Procedure 32 did not apply, and the trial court did not have to make a finding
that the second Coffee County case was consecutive to the Wilson County case. The trial
court stated, “[Defendant] should not be entitled to jail credit for that time that was spent
in TDOC on the Wilson County case. Obviously, any other time that he spent in Coffee
County he should get full credit for.”

        February 14, 2018: In the second Coffee County case, the trial court granted some
of Defendant’s requested jail credits and issued amended judgments. Specifically, the
trial court granted pretrial jail credits for August 15, 2014, to November 24, 2014, and
from September 2, 2016, to May 15, 2017.

       April 9, 2018: Defendant filed a motion to accept a late-filed notice of appeal from
the order on the Rule 36 motion and the judgments of conviction in the first and second
Coffee County cases.

        May 4, 2018: This court granted permission to late-file an appeal of the order on
Defendant’s Rule 36 motion but denied waiver to late-file an appeal of the judgments in
the first and second Coffee County cases.

      May 15, 2018: Defendant filed a pro se Post-Conviction Petition, claiming that he
was denied his right to appeal the judgments of conviction in the first and second Coffee
County cases.
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       June 28, 2018: In the second Coffee County case, the trial court again amended the
judgments and granted pretrial jail credits for May 20, 2014, to November 24, 2014.
Thus, the total pretrial jail credits for the second Coffee County case stood at May 20,
2014, to November 24, 2014, and from September 2, 2016, to May 15, 2017.

      November 14, 2018: The Coffee County Circuit Court granted Defendant post-
conviction relief in the form of a delayed direct appeal in the second Coffee County case.

       November 26, 2018, Defendant filed his notice of appeal. On the same day,
Defendant filed a motion to consolidate the direct appeal and the pending appeal from the
denial of his Rule 36 motion. This court granted Defendant’s motion to consolidate on
November 30, 2018.

      This appeal follows.

                                        Analysis

       Defendant argues that the Wilson County case and the second Coffee County case
were concurrent “by default” because the trial court did not specify that they were to be
run consecutively and because none of the criteria of Tennessee Code Annotated section
40-35-115(b) were met to justify consecutive sentencing. Thus, Defendant claims that
because the two sentences are concurrent, the time he spent in TDOC serving his
sentence on the Wilson County case from November 25, 2014, to September 2, 2016,
should count as pretrial jail credit in the second Coffee County case. In the alternative,
Defendant requests that his plea be rescinded for “failure to reach a true meeting of the
minds.”
       The State responds that the pretrial jail credits Defendant seeks do not arise from
the offenses involved in the second Coffee County case. The State argues that the trial
court was under no obligation to determine whether the second Coffee County case was
concurrent or consecutive to the Wilson County case because the Wilson County case
had already expired before Defendant entered a plea in the second Coffee County case.

        “When an accused is taken into custody by the state, Tennessee is required to
credit the sentence with the time served in the jail pending arraignment and trial as well
as the time subsequent to any conviction arising out of the original offense for which he
was tried.” State v. Henry, 946 S.W.2d 833, 834 (Tenn. Crim. App. 1997) (citing Tenn.
Code Ann. § 40-23-101(c)). “The purpose of the statute was to provide jail time credit
prior and subsequently to conviction for indigents unable to make bond.” State v.
Abernathy, 649 S.W.2d 285, 286 (Tenn. Crim. App. 1983).



                                          -4-
                      Tennessee Rule of Criminal Procedure 32(C)

      Tennessee Rule of Criminal Procedure 32(c) states, in pertinent part:

      (1) Multiple Sentences from One Trial. If the defendant pleads guilty or is
      convicted in one trial of more than one offense, the trial judge shall
      determine whether the sentences will be served concurrently or
      consecutively. The order shall specify the reasons for this decision and is
      reviewable on appeal. Unless it affirmatively appears that the sentences are
      consecutive, they are deemed to be concurrent.

      ....

      (2)(A)(i) Prior Tennessee Sentence Known. If the defendant has additional
      sentences not yet fully served as the result of convictions in the same court
      or in other courts of Tennessee and if this fact is made known to the court
      prior to sentencing, the court shall recite this fact in the judgment setting
      sentence, and the sentence imposed is deemed to be concurrent with the
      prior sentence or sentences, unless it affirmatively appears that the new
      sentence being imposed is to be served consecutively to the prior sentence
      or sentences. The judgment to make the sentences consecutive or
      concurrent shall explicitly relate the judge’s reasons and is reviewable on
      appeal.

Tenn. R. Crim. P. 32. (emphasis added).

       Here, Defendant’s sentences in the Wilson County case and the second Coffee
County case were not concurrent because the Wilson County sentence had expired on
September 2, 2016, prior to Defendant’s plea in the second Coffee County case on May
15, 2017. Thus, Defendant had no sentences “not yet fully served” as a result of a
conviction in another Tennessee court at the time he was sentenced in the second Coffee
County case. Defendant claims that, because the trial court did not run the sentences
consecutively, they are by default concurrent sentences. However, Rule 32(c) only
provides two instances for default concurrent sentences when a trial court fails to make a
finding of consecutive sentences: (1) when multiple sentences arise from one trial, and
(2) when a prior known Tennessee sentence has not yet been fully served at the time of
sentencing on a new charge. Neither is the case here.




                                          -5-
                         Tennessee Code Annotated section 40-35-115

        Defendant argues that because none of the criteria in Tennessee Code Annotated
section 40-35-115(b)3 was met, the Wilson County case and the second Coffee County
case must be run concurrently. Part (a) of this statute reads, “[i]f a defendant is convicted
of more than one (1) criminal offense, the court shall order sentences to run consecutively
or concurrently as provided by the criteria in this section.” Tenn. Code Ann. § 40-35-
115(a) (2017). Part (d) states that “[s]entences shall be ordered to run concurrently if the
criteria noted in subsection (b) are not met . . . .” Tenn. Code Ann. § 40-35-115(d)
(2017) (emphasis added). Our supreme court has stated that

        [i]n interpreting statutes, we are required to construe them as a whole, read
        them in conjunction with their surrounding parts, and view them
        consistently with the legislative purpose. The construction must not be
        strained and must not render portions of the statute inoperative or void. We
        must seek a reasonable construction in light of the purposes, objectives, and
        spirit of the statute based on good sound reasoning.

State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995) (internal citations omitted).




        3
         Tennessee Code Annotated section 40-35-115(b) provides:
        The court may order sentences to run consecutively if the court finds by a preponderance of the
evidence that:
       (1) The defendant is a professional criminal who has knowingly devoted the defendant’s life to
       criminal acts as a major source of livelihood;
       (2) The defendant is an offender whose record of criminal activity is extensive;
       (3) The defendant is a dangerous mentally abnormal person so declared by a competent
       psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant’s
       criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with
       heedless indifference to consequences;
       (4) The defendant is a dangerous offender whose behavior indicates little or no regard for human
       life and no hesitation about committing a crime in which the risk to human life is high;
       (5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a
       minor with consideration of the aggravating circumstances arising from the relationship between
       the defendant and victim or victims, the time span of defendant's undetected sexual activity, the
       nature and scope of the sexual acts and the extent of the residual, physical and mental damage to
       the victim or victims;
       (6) The defendant is sentenced for an offense committed while on probation; or
       (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

                                                  -6-
        Tennessee Code Annotated section 40-35-115 provides the criteria for a trial court
to use to determine whether a defendant who “is convicted of more than one (1) criminal
offense” should have the sentences run concurrently or consecutively. To read the statute
as Defendant suggests, any time a person is convicted of an offense, he must be
sentenced concurrently to any previously expired sentence, absent the criteria in section
(b) or an express finding that the sentence is consecutive. Defendant’s interpretation of
the statute is “strained,” unreasonable, and not “based on good sound reasoning.” See id.
Such a construction would also conflict with Tennessee Rule of Criminal Procedure
32(c)(2)(A)(i) which governs whether a new sentence should be run concurrently or
consecutively to prior known sentences not yet fully served.

                                    “Arises Out Of”

      Tennessee Code Annotated section 40-23-101(c) provides that:

             The trial court shall, at the time the sentence is imposed and the
      defendant is committed to jail, the workhouse, or the state penitentiary for
      imprisonment, render the judgment of the court so as to allow the defendant
      credit on the sentence for any period of time for which the defendant was
      committed and held in the city jail or juvenile court detention prior to
      waiver of juvenile court jurisdiction, or county jail or workhouse, pending
      arraignment and trial. The defendant shall also receive credit on the
      sentence for the time served in the jail, workhouse or penitentiary
      subsequent to any conviction arising out of the original offense for which
      the defendant was tried.

Tenn. Code Ann. § 40-23-101(c) (2018). “As written, the statute provides for credits
against the sentence only if the incarceration, claimed as a basis for the credits, arises
from the offense for which the final sentence was imposed.” State v. Earl D. Mills, No.
E2004-01218-CCA-R3-CD, 2005 WL 1551339, at *3 (Tenn. Crim. App. July 5, 2005).

       In State v. Timothy S. Bradley, a defendant was charged in two cases, one in
Dickson County and one in Humphreys County. State v. Timothy S. Bradley, No. 01C01-
9804-CC-00165, 1999 WL 155916, at *1 (Tenn. Crim. App. Mar. 23, 1999). While the
defendant was in the county jail awaiting trial on the Dickson County case, he was
charged in the Humphreys County case on December 2, 1996. Id. After continuing to
spend the next seven months in the Dickson County jail, the defendant pled guilty in the
Humphreys County case on July 19, 1997. Id. The Dickson and Humphreys County
cases were run concurrently. The defendant argued on appeal that the time he spent in
the Dickson County Jail subsequent to being charged in the Humphreys County case
should be counted as pretrial jail credit in the Humphreys County case. Id. This court
                                          -7-
rejected the defendant’s argument, stating that Tennessee Code Annotated section 40-23-
101(c) “only provides credit against a sentence if the reason for incarceration arises from
the offense for which the sentence was imposed.” Id. at *2. The defendant “was being
held in the Dickson County Jail pending trial for offenses committed in Dickson County.
Thus, even if [the defendant] had been able to post bond . . . for the Humphreys County
charges, he would not have been released from the Dickson County Jail.” Id.

        In the same way, even if Defendant had posted bond in the second Coffee County
case after his transport to TDOC on the Wilson County case, he would not have been
released from TDOC. Defendant was not being held in TDOC on the second Coffee
County case, and thus his TDOC confinement did not “‘arise out of’ the offense” of the
second Coffee County case. See id. Thus, he has no allowance to that time as a matter of
right. Trigg v. State, 523 S.W.2d 375, 376 (Tenn. Crim. App. 1975) (stating that “when
the time spent in jail or prison . . . ‘arises out of’ the offense for which the sentence
against which the credit is claimed[,] such allowance becomes a matter of right.”)
Because the sentences in the Wilson County case and the second Coffee County case
were not concurrent, and because Defendant’s time in TDOC from November 25, 2014,
to September 2, 2016, did not “arise out of” the second Coffee County case, he is not
entitled to pretrial jail credit for that time.

                              Rescinding the Plea Agreement

       Defendant states, “[i]f this perfectly legitimate request cannot be granted,
[Defendant] asks that the entire plea agreement be struck and rescinded, and the
convictions REVERSED for failure to reach a true meeting of the minds.” Defendant
presents this alternative remedy for the first time in his appellate brief’s concluding
paragraph. He provides no authority or argument for his contention that, absent this
court’s grant of almost two years of pretrial jail credits, he is entitled to withdraw his
guilty plea due to “failure to reach a true meeting of the minds.” Tennessee Rule of
Criminal Procedure 10(b) states that “[i]ssues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this court.” The argument is waived.

                                        Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE

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