IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 24, 2020

STATE OF TENNESSEE v. CHRISTOPHER ALLEN SMITH

   

Appeal from the Criminal Court for Hamilton Coun

Nos. 285655, 292165 Don W. Poole, Judge F | L E D

APR 15 2020

Clerk of the Appellate
Rec'd by ky ourts

  
    

 

  

No. E2019-01345-CCA-R3-CD

 

Defendant, Christopher Allen Smith, filed a Rule 35 Motion for Modification of
Sentence. The trial court held a bifurcated hearing where it denied Defendant’s Rule 35
motion and revoked Defendant’s probation, ordering his two eight-year consecutive
sentences into execution. Defendant now appeals the trial court’s denial of his Rule 35
Motion for Modification of Sentence. After a thorough review of the record and
applicable case law and discerning no error, the judgments of the trial court are affirmed.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which John Everett
Williams, P.J., THOMAS T. WOODALL, and J., joined.

Melody Shakari, Chattanooga, Tennessee (on appeal); and Erinn O’Leary, Assistant
Public Defender, Chattanooga, Tennessee (at hearing), for the appellant, Christopher
Allen Smith.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Neal Pinkston, District Attorney General; and Kate Lavery, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History

On March 16, 2014, Defendant pled guilty to one count of distributing
methamphetamine in case 285655 and one count of fraudulent use of a credit card in case
285919. The trial court sentenced Defendant in accordance with the plea agreement to
eight years of supervised probation and ordered him to complete a Council for Alcohol
and Drug Abuse Services (“CADAS”) assessment.

On July 15, 2014, Defendant was indicted for vehicular assault, reckless
aggravated assault, reckless endangerment, driving left of center, driving on a revoked
license, financial responsibility violation, seat belt violation, and driving under the
influence (DUI). On August 12, 2014, a probation violation warrant was issued based
upon (1) Defendant’s new arrest in the July 15, 2014 case, (2) Defendant’s failure to keep
his appointment with his probation officer, (3) Defendant’s testing positive for marijuana,
and (4) Defendant’s failure to pay his restitution and probation fees.

On February 5, 2015, Defendant conceded the probation violation, and the court
reinstated his probation, adding three days of community service. The same day,
Defendant pled to one count of vehicular assault and one count of DUI in case 292165.
The trial court sentenced Defendant pursuant to the plea agreement to eight years to serve
in the Tennessee Department of Correction, suspended after eleven months and twenty-
nine days’ incarceration and one year in the Transformation Project drug rehabilitation
program, to be served consecutively to his sentence in case 285655.

On July 15, 2015, the trial court issued a capias for the arrest of Defendant for
failure to perform the three days of community service. On August 28, 2015, the trial
court entered an order to allow Defendant until November 30, 2015, to perform three
days of community service.

In November 2015, Transformation Project notified the trial court that Defendant
failed four of his six drug screenings, that Defendant failed to attend meetings, and that
Defendant failed to make his daily calls to his life coach. On November 30, 2015, the
State notified the trial court that Defendant failed to comply with the community service
provision of his sentence. On December 3, 2015, the trial court issued a capias for
Defendant’s arrest for failure to comply with conditions of his probation and ordered
Defendant held without bond.

While it was unclear from the record, it appears that Defendant was placed back
on probation. On July 22, 2016, the Public Defender was appointed to represent
Defendant. Another capias issued in August of 2016 and Defendant was ordered to be
held without bond. Defendant was rearrested in December of 2016.

On January 12, 2017, Defendant waived his right to a probation revocation hearing
and conceded a probation violation. The trial court ordered Defendant’s sentences in
case 285655 and 292165 into execution and furloughed him to the Hamilton County
Drug Court (““HCDC”) program in case 292165. The next day, Defendant filed a pro se
Rule 35 motion for modification of his sentence in case 292165. On February 6, 2017,
the trial court filed an order furloughing Defendant to HCDC in cases 285655, 285919,
and 292165.

On April 13, 2017, the trial court filed a Notice of Violation and Removal from
Hamilton County Drug Court Program for “absconding from CADAS and failing to
maintain contact with HCDC.” The trial court issued a violation warrant, and Defendant
was arrested on November 3, 2017. Counsel was appointed to represent Defendant.

On December 5, 2017, Defendant waived his right to a probation revocation
hearing, and the trial court reinstated Defendant to the HCDC program. That same day,
Defendant again filed a pro se Rule 35 Motion for Modification of Sentence.

After receiving notice from HCDC of program violations, including absconding a
second time, and a request to remove Defendant from the program, the trial court issued a
violation warrant on April 25, 2018. Defendant was arrested on May 18, 2018, and the
trial court ordered Defendant removed from the HCDC program on June 25, 2018, and
transferred Defendant’s cases to the criminal court “to show cause why he should not
serve his sentences.”

Hearing

On May 16, 2019, the trial court held a hearing. Dr. Elaine Kelly testified that she
worked with the HCDC program. She said that Defendant entered the HCDC program
through a furlough as a part of his probation revocation and that she first met Defendant
in 2016 when she performed a high risk assessment. In April of 2017, Defendant
absconded from the HCDC program. Dr. Kelly stated that, when Defendant was arrested
again in November of 2017, she “wanted him back” in the program so that Defendant
would have “greater chances of long term success.” She said that Defendant returned to
the HCDC program with GPS monitoring. Dr. Kelly stated that Defendant used
methamphetamine four times in March and April of 2018. He also left Hamilton County
against the rules of the HCDC. Dr. Kelly testified that Defendant was scheduled to speak
with the drug court on April 25, 2018, but that he absconded and did not contact the
HCDC.

On cross-examination, Dr. Kelly testified that, whenever Defendant had periods
without drug use, she considered that “progress.” She stated that, after Defendant’s
second absconding, HCDC did not request that Defendant return because “future
behavior is past behavior.”

The trial court continued Defendant’s hearing to June 27, 2019. On that date,
Defendant testified that he had been in custody more than a year at the time of the
hearing and that, prior to being in custody, he had participated in the HCDC program. He
said that the first time he was in HCDC, he stayed approximately three months.

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Defendant stated that he “got off [his] meds” for bipolar, schizophrenia, and depression,
so he “relapsed” and was rearrested. He stated that, when he relapsed and began “self-
medicating,” he used marijuana and “crystal meth.” Defendant said that he considered
mental health court as an option after his relapse but that they “did not accept [him].”
Defendant testified that, while in custody, he has received his medications.

Defendant testified that he recently investigated House of Refuge for treatment.
He said, “I was in [the House of Refuge program] for about two, two and a half months in
the program and it’s a program I should have been in in the beginning.” He stated that he
participated in the House of Refuge program while he was in custody and that he wanted
to continue with the program after his release. Defendant said that House of Refuge
would “be different” because “[i]t’s a Christian faith based program and they have job
placement” and because he felt “comfortable there.” Defendant stated that drugs were
available in jail but that he had “no desire” to use them and was “done this time.” He
said that he recently connected with his family again and believed that he was “worth
saving.”

Defendant stated that the medications provided by HCDC for his mental health
issues gave him “anxiety real bad” and “insomnia real bad and the jitters” and that those
medications did not work like the ones he was on now. He said that his current
combination of medications would help him maintain his sobriety.

Jonathan Bernard Johnson testified that he was the court liaison with House of
Refuge. He said that House of Refuge was “a twelve month faith based program that
provides housing, transportation, [and] help[s] guys find jobs and back into society.” Mr.
Johnson said that House of Refuge had three houses with different levels of supervision.
He stated that House of Refuge conducts random drug tests and provides transportation to
participants to and from their places of employment. He said the participants turn in their
employment checks and are given an allowance so that when they complete the program,
they have some money saved to purchase a car or find a place to live.

Mr. Johnson stated that he assessed Defendant and accepted him into the program,
should the trial court permit it. He said that Defendant participated regularly in the
House of Refuge program while he was in custody.

In regards to the Rule 35 motion, the trial court accredited the testimony of Dr.
Kelly regarding Defendant’s failure to comply with the HCDC program and his
absconding twice. The trial court stated that it “considered the medical records from
Erlanger Hospital [and Defendant’s] testimony that he had been diagnosed with mental
health issues.” Continuing, the court stated:

I find... very clearly [that Defendant] pled guilty with a sentence to
be served in the penitentiary but was furloughed to drug court to comply

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with drug court. I find very clearly that no exceptional circumstances exist,
no unforeseen post-sentencing developments have occurred. The
defendants in these issues when they are furloughed to something like drug
court, they have to show that.

What [Defendant] has shown through very able counsel today is that
he is trying to get into another program. Many, many programs have been
tried in the past and [Defendant] sadly has not been able to comply with
those programs.

The trial court found that “no exceptional circumstances exist” and “[nJo
unforeseen post-sentencing developments have occurred” to warrant a reduction of
Defendant’s sentence and denied Defendant’s motion.

The trial court reviewed Defendant’s original sentences of probation in cases
285655 and 292165 and noted that Defendant had violated the conditions of his probation
“several times.” The trial court found “that [Defendant] violated the conditions of that
drug court program clearly by the preponderance of the evidence.” In its June 27, 2019
written probation revocation order, the trial court ordered Defendant’s sentences into
execution.

Defendant timely appealed the trial court’s denial of his Rule 35 Motion for
Modification of Sentence.

Analysis

Defendant argues that the trial court abused its discretion when it denied his Rule
35 Motion for Reduction of Sentence. Defendant also contends that “there were conflicts
in approach and disposition of the case, and the confusion disadvantaged [him] unfairly”
because the trial court ruled on Defendant’s Rule 35 motion and also found that
Defendant had violated his probation in the same hearing.

The State responds that the trial court did not abuse its discretion when it denied
the Rule 35 motion. It also asserts that the trial court’s hearing was proper.

Rule 35 Motion
Rule 35 of the Tennessee Rules of Criminal Procedure provides, as follows:

(a) 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.

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(b) Limits of Sentence Modification. The court may reduce a sentence only
to one the court could have originally imposed.

(c) Hearing Unnecessary. The trial court may deny a motion for reduction
of sentence under this rule without a hearing.

(d) Appeal. The defendant may appeal the denial of a motion for reduction
of sentence but shall not be entitled to release on bond unless already under
bond. If the court modifies the sentence, the state may appeal as otherwise
provided by law.

Tenn. R. Crim. P. 35.

According to the Advisory Commission Comments to Rule 35, “[t]he intent of this
tule is to allow modification only in circumstances where an alteration of the sentence
may be proper in the interests of justice.” Tenn. R. Crim. P. 35, Advisory Comm’n Cmts.

This court reviews a trial court’s denial of a Rule 35 motion under an abuse of
discretion standard. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006); State v. Edenfield,
299 S.W.3d 344, 346 (Tenn. Crim. App. 2009); State v. James Hall, No. M2018-00096-
CCA-R3-CD, 2019 WL 451368, at *1 (Tenn. Crim. App. Feb. 5, 2019), no perm. app.
filed. “[AJn appellate 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.”
Ruiz, 204 S.W.3d at 778 (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)).

When a defendant has entered a plea agreement with a specific, negotiated
sentence, that sentence may only be modified pursuant to Rule 35(b) “where unforeseen,
post-sentencing developments would permit modification of a sentence in the interest of
justice.” James Hall, 2019 WL 451368, at *2 (quoting State v. McDonald, 893 S.W.2d
945, 947 (Tenn. Crim. App. 1994)); see State v. Patterson, 564 S.W.3d 423, 434 (Tenn.
2018) (“{A] defendant is required to provide such information . . . if the defendant’s Rule
35 motion seeks reduction of a specific sentence imposed in exchange for a guilty plea.
For Rule 35 motions of this type, the McDonald standard remains applicable and
appropriate.”’).

Here, both of Defendant’s pleas were specific, negotiated sentences, so his
sentences may only be modified pursuant to Rule 35(b) “where unforeseen, post-
sentencing developments would permit modification of a sentence in the interest of
justice.” James Hall, 2019 WL 451368, at *2 (quoting McDonald, 893 S.W.2d at 947).
While Defendant claims that he has found a new program which he believes will help
him, “[a] defendant’s claim that he would seek intensive rehabilitation treatment if
released... is not an ‘unforeseen, post-sentencing’ development permitting modification

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of the defendant’s sentence in the interest of justice.” State v. Russell Leaks, No. W2013-
01136-CCA-R3-CO, 2014 WL 10316777, at *2 (Tenn. Crim. App. May 15, 2014).
Because Defendant failed to establish “unforeseen, post-sentencing developments” which
“would permit modification of a sentence in the interest of justice,” the trial court did not
abuse its discretion in denying Defendant’s motion. McDonald, 893 S.W.2d at 947.

Nature of the Hearing

Defendant claims that he understood that the purpose of the May 16, 2019 hearing
was for the trial court to hear proof concerning his Rule 35 motion and not for the court
to hear proof concerning his violation of probation. He asserts that, because the trial
court treated the hearing as both a Rule 35 hearing and a probation revocation hearing, he
did not have proper notice to address the probation revocation standard. However,
Defendant knew that he had been removed from the HCDC program on June 25, 2018,
and that his cases had been transferred to the criminal court “to show cause why he
should not serve his sentences.”

We also note that Defendant did not appeal the trial court’s order revoking his
probation;! thus, if Defendant is now somehow claiming the trial court improperly
revoked his probation without notice, that issue was not raised in the notice of appeal.
Tenn. R. App. P. 3(f). (“The Notice of Appeal . . . shall designate the judgment from
which relief is sought, and shall name the court to which the appeal is taken.”). Our
review “generally will extend only to those issues presented for review.”
Tenn. R. App. P. 13 (b). We will not extend our review to the issue concerning the trial
court’s revocation of Defendant’s probation.

The State responds that Defendant filed a Rule 35 motion and the trial court held a
Rule 35 hearing in conjunction with the probation revocation hearing. Thus, the State
argues, the trial court did not err. We agree with the State.

Defendant is not entitled to relief.

Conclusion

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

 

ROBERT L. HOLLOWAY, JR., JUDGE

 

' The contents of the Notice of Appeal stated:

Notice is hereby given that [Defendant], the above-named appellant, hereby appeals as of
right pursuant to Rule 3 of the Rules of Appellate Procedure, to the Court of Criminal
Appeals in Knoxville from the final judgment in this action on the 27th day of June, 2019
following the denial of his Rule 35 Motion for Reduction of Sentence.

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