        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 23, 2013

           STATE OF TENNESSEE v. ALAN ROBERT BENJAMIN

            Direct Appeal from the Criminal Court for Hamilton County
                  Nos. 280910, 280912    Rebecca J. Stern, Judge


                  No. E2012-01557-CCA-R3-CD - Filed June 26, 2013


The appellant, Alan Robert Benjamin, pled guilty in the Hamilton County Criminal Court to
two counts of robbery and one count of attempted aggravated robbery. The trial court
sentenced the appellant as a Range I, standard offender to five years for each offense, with
the sentences to be served consecutively for a total effective sentence of fifteen years. The
court ordered the appellant to serve eleven months and twenty-nine days confinement for
each offense, with the remainder of the sentence to be served on supervised probation. On
appeal, the appellant challenges the length of the sentences imposed by the trial court, the
imposition of consecutive sentencing, and the denial of full probation. Upon review, we
conclude that the trial court erred by allowing the appellant to choose between two proposed
sentencing options. Therefore, the judgment of the trial court is reversed and the case is
remanded for resentencing in accordance with the purposes and principles of the Sentencing
Act.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                           Reversed; Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Mike A. Little, Chattanooga, Tennessee, for the appellant, Alan Robert Benjamin.

Robert E. Cooper, Jr., Attorney General and Reporter; DeShea Dulany Faughn, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Bill Hall, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                  I. Factual Background

      On July 27, 2011, the Hamilton County Grand Jury charged the appellant and his co-
defendant, Michael Morris Wood, with one count of aggravated robbery, a Class B felony.
Additionally, the grand jury charged the appellant and Wood with aggravated robbery and
attempted aggravated robbery, Class C felonies.

       On April 18, 2012, the appellant entered guilty pleas to two counts of robbery, a Class
C felony, and one count of attempted aggravated robbery. At the guilty plea hearing, the
State recited the following factual basis for the pleas:

                      In this case [indictment number 280910], had we gone to
              trial, Officer Braden of the Chattanooga Police Department was
              investigating a robbery that occurred over on Frazier area during
              the Riverbend [street festival] of a John Wilson and Carolyn
              Holloway and Kaylen Myers where some property was taken by
              force or threat of force with a, determined later to be a BB
              pistol, without the consent of the victims.

                      As to [indictment number] 280912[,] . . . had we gone to
              trial, [we] would have shown that Officer Puckett of the
              Chattanooga Police Department was investigating a robbery that
              occurred in the Frazier Court area, again around the Riverbend
              [street festival] on 6/19/2011, wherein Stephen Burnett and
              Shelby Neighbors were accosted by these defendants with the
              BB pistol and property was taken by force or threat of force.

The plea agreement provided that the trial court would determine the length and manner of
service of the sentences.

        At the sentencing hearing, John Wilson testified that he lived in Lookout Valley and
that he attended the Riverbend street festival in Chattanooga on June 18, 2011. He said that
after leaving Riverbend, he walked across Veteran’s Bridge, turned left onto Frazier, and was
approached by two men, one of whom was the appellant. The appellant pointed a gun at
Wilson and demanded his money. Wilson gave his money to the men, and they walked down
the street. They were eventually apprehended.

       On cross-examination, Wilson said that his friend, Carolyn Holloway, was with him

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at the time of the robbery. Holloway also identified the appellant as the person who held the
gun. Wilson stated that during the robbery, he gave the appellant forty to sixty dollars.
Wilson said that he was seventeen years old at the time of the robbery and that he had been
drinking alcohol that night.

       The appellant’s mother, Beverley Ann Leclare, testified that the nineteen-year-old
petitioner had lived with her in Ooltewah and that he was currently incarcerated. She spoke
with the petitioner daily and visited him weekly. She said that the petitioner was remorseful
and that he knew what he had done was wrong.

       Leclare said that the appellant graduated from high school in 2011 with a 3.2 grade
point average and received “presidential academic awards.” The appellant was “heavy into
sports in his school years.” She believed if the petitioner were granted an alternative
sentence, he would “conduct himself well.”

      On cross-examination, Leclare said that the appellant was undergoing treatment for
alcohol and drug addiction. She acknowledged that the appellant had been robbed at
gunpoint on a prior occasion but said that the robbery was not over drugs.

        In determining sentencing, the trial court applied enhancement factor (9), that the
appellant possessed or employed a firearm, explosive device or other deadly weapon during
the commission of the offense; enhancement factor (10), that the appellant had no hesitation
about committing a crime when the risk to human life was high; and enhancement factor
(13), that the appellant “was on a conditional release in the community” when he committed
the instant offenses. Tenn. Code Ann. § 40-35-114(9), (10), (13)(A). The trial court found
no mitigating factors.

       The State asked the trial court to impose a period of “some incarceration” due to the
“severity of the crime.” Defense counsel asked the court to grant split confinement or full
probation.

       The trial court said:

                      Here’s what I intend to do, and I’m going to sort of give
              you a choice. I’m going to run them all concurrent but five
              years to serve or three 11/29’s consecutive to each other.
              Because under the consecutive sentencing since it was a
              dangerous – I just looked at a way to do it. And a dangerous
              offender whose behavior indicates little or no regard for human
              life, no hesitation about committing a crime, which that’s what

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              I’m going to find if I run them consecutive. And then he can
              have some split confinement so some probation afterwards but
              that’s the least he’s getting. Or he can serve five years and
              flatten them.

                     ....

                      . . . I find that we can do the sentences either way under
              the sentencing reform act. I do find that confinement is
              necessary to avoid depreciating the seriousness of the offense or
              particularly suited to provide[] an effective deterrent to others
              likely to commit similar offenses. We have way too much of
              this going on.

                      He doesn’t have a criminal record though and the
              sentencing guidelines encourage alternative sentencing.
              Although I do find under the multiple convictions statute, 40-35-
              115, that he’s a dangerous offender given these offenses, has
              little or no regard for human life and no hesitation about
              committing a crime in which the risk to life is high. So basically
              what I’m going to do is give him a choice of sentences that I
              think are supported by the sentencing guidelines. And that is
              either three concurrent sentences of five years, Range [I], to
              serve with credit for time served. Or he can take 11/29 – a split
              confinement of five years, suspended on enhanced probation
              after 11/29, but all running consecutive to each other, for an
              effective incarceration of three years.

       After consulting with the appellant and the appellant’s mother, defense counsel stated
that the appellant had chosen to “take the second option, where the sentences are run
consecutive and with alternative split confinement.”

        On appeal, the appellant challenges the length of the sentences imposed by the trial
court, the imposition of consecutive sentencing, and the denial of full probation.

                                        II. Analysis

      Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court

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within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn.
2012). Our supreme court has further explicitly stated that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). In conducting its review, this court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing hearing;
(2) the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§
40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because the
              general assembly set the minimum length of sentence for each
              felony class to reflect the relative seriousness of each criminal
              offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114.

Tenn. Code Ann. § 40-35-210(c).

         The trial court should consider enhancement and mitigating factors, but the statutory
enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also Bise,
380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme court
has stated that “a trial court’s weighing of various mitigating and enhancement factors [is]
left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the
trial court is free to select any sentence within the applicable range so long as the length of

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the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at
343. “[A]ppellate courts are therefore left with a narrower set of circumstances in which they
might find that a trial court has abused its discretion in setting the length of a defendant’s
sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the length of the
sentence imposed so long as it is imposed in a manner consistent with the purposes and
principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

       Although not raised by either party, we note that the trial court allowed the appellant
to choose between two sentences. This court has specifically opined that under the
sentencing act, the duty to sentence a defendant cannot be delegated. See State v. Bruce M.
Marshall, No. 03C01-9203-CR-103, 1992 WL 371759, at *1 (Tenn. Crim. App. at Knoxville,
Dec. 17, 1992). This court has noted that although a trial court “can certainly accept plea
agreements proposed by the prosecution and the defense, [the court] cannot delegate the
matter of sentencing to either the prosecution or the defense.” Id. In a similar situation, this
court has previously held that “[g]iven this unique procedure that is not contemplated by the
sentencing statutes, fundamental fairness requires that we remand for a resentencing hearing
that complies with the Criminal Sentencing Reform Act, specifically the procedures outlined
in [Tennessee Code Annotated section] 40-35-210.” State v. Gary S. Johnson, No.
03C01-9709-CR-00399, 1998 WL 915905, at *3 (Tenn. Crim. App. at Knoxville, Nov. 12,
1998) (footnote omitted).

       For consideration on remand, we note other concerns surrounding the imposition of
three, consecutive five-year sentences with the appellant serving eleven months and twenty-
nine days of each sentence in confinement. This court has previously explained that when
probation is made a part of a sentence,

              it must run in the same manner as the periods of incarceration.
              The term “sentence” includes both the period of incarceration
              and the period of probation. Thus, if the trial court orders the
              defendant’s sentences to run consecutively, then each portion of
              his sentences must be so served. Likewise, if the defendant is
              ordered to serve his sentences concurrently, his periods of
              probation will also run concurrently. The Sentencing Act
              makes no provision for ordering different portions of the same
              sentence to run in different manners.

State v. Connors, 924 S.W.2d 362, 364 (Tenn. Code Ann. § 1996). In other words, “[a] trial
court may not order confinement concurrently and probation consecutively from multiple
sentences.” State v. Clark, 67 S.W.3d 73, 79 (Tenn. Crim. App. 2001).


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       Further, we note that the consecutive sentencing option contained sentences of split
confinement. If served as ordered, the appellant would serve almost three years in
confinement followed by twelve years on probation. This court has explained that
Tennessee Code Annotated section “40-35-306(a) empowers the court to order continuous
service of 365 days as a component of split confinement. The Code grants no authority to
extend the confinement portion of a split confinement sentence beyond 365 days.” State v.
Matthew I. Tart, No. E2009-01315-CCA-R3-CD, 2010 WL 1610515, at *3 (Tenn. Crim.
App. at Knoxville, Apr. 21, 2010). Accordingly, “[t]he consecutive alignment of split
confinement sentences resulting in a confinement period of over one year runs afoul of
Section 40-35-306(a).” State v. James Edward Kilby, III, No. E2011-02462-CCA-R3-CD,
2012 WL 3793435, at *1 (Tenn. Crim. App. at Knoxville, Sept. 4, 2012).

                                     III. Conclusion

       In sum, the judgments of the trial court are reversed and the case is remanded for
resentencing.




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                                                  NORMA McGEE OGLE, JUDGE




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