                                                                                       10/17/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                                June 19, 2018 Session

              STATE OF TENNESSEE v. AREANNA O. LLOYD

               Appeal from the Circuit Court for Rutherford County
                     No. F-75770C       Royce Taylor, Judge
                    ___________________________________

                          No. M2017-01919-CCA-R3-CD
                      ___________________________________


Defendant, Areanna O. Lloyd, entered guilty pleas to two counts of robbery in concert
with two or more others in violation of Tennessee Code Annotated sections 39-13-401
and 39-12-302, Class B felonies, and pursuant to the plea agreement was sentenced to
concurrent terms of seven years, two months, and twelve days, in the Tennessee
Department of Correction (“TDOC”) as a mitigated offender with release eligibility after
service of twenty percent of the sentence. After Defendant was denied parole, she filed a
“Petition for Suspended Sentence” (“the petition”). Following a hearing, the trial court
determined that it did not have jurisdiction over Defendant’s sentence and denied the
petition. Defendant then filed a “Motion to Reconsider” (“the motion”), arguing that she
had remained incarcerated in Rutherford County and was never transferred to the
physical custody of TDOC, and therefore, the trial court retained “full jurisdiction over
the manner of [D]efendant’s sentence service” pursuant to Tennessee Code Annotated
section 40-35-212(c) and (d)(1). Following a second hearing, the trial court granted the
petition and ordered Defendant to serve the balance of her sentence on supervised
probation, and the State filed the instant appeal. After a thorough review of the record
and applicable law, we determine that the trial court did not abuse its discretion by
suspending the balance of the sentence service and placing her on probation.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., J., joined. TIMOTHY L. EASTER, J., filed a separate dissenting opinion.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and John Zimmerman,
Assistant District Attorney General, for the appellant, State of Tennessee.
John G. Mitchell, III (at hearing and on appeal) and Johnathon C. Hershman (on appeal),
Murfreesboro, Tennessee, for the appellee.

                                       OPINION

                  FACTUAL AND PROCEDURAL BACKGROUND

                               Indictment and Guilty Plea

       Defendant and co-defendants Jarol Noel Jiminez and Devon Rydell Frazier were
indicted for three counts of aggravated robbery and three counts of “robbery in concert
with two or more others.” The victims were pizza delivery drivers.

      On October 18, 2016, Mr. Jiminez pled guilty to three counts of aggravated
robbery and was sentenced to concurrent sentences of eight years in TDOC as a standard
offender with release eligibility after service of eighty-five percent on each count.

       On October 25, 2016, Defendant pled guilty to two counts of robbery in concert
with two or more others in violation of Tennessee Code Annotated sections 39-13-401
and 39-12-302. The plea agreement specified that the remaining counts of the indictment
would be dismissed and that Defendant would receive a sentence of “7 years and 73
days” as an especially mitigated offender with release eligibility after service of twenty
percent of the sentence. The State informed the trial court that Defendant was “given this
plea bargain . . . because she cooperated with law enforcement authorities in testifying
against the juvenile co-defendant in Juvenile Court” and received a “grant of immunity.”

       On January 23, 2017, Mr. Frazier pled guilty to two counts of aggravated robbery
and was sentenced to concurrent sentences of eight years in TDOC as a standard offender
with release eligibility after service of eighty-five percent on each count.

                                   Procedural History

       On June 26, 2017, Defendant filed the petition claiming that, “[i]n April, 2017,
[D]efendant was denied parole, and was informed she would not again be eligible for
consideration for parole until April, 2020.” The trial court conducted a hearing on the
petition on July 24, 2017. No witnesses were called. Following legal arguments, the trial
court announced:

      I’m going to rule in the State’s favor that I don’t have jurisdiction at this
      point since she’s sentenced to the TDOC. And the Parole Board would be

                                           -2-
       the ones that would determine her eligibility for release at this time and not
       this Court.

       Based on the determination that it did not have jurisdiction, the trial court denied
the petition on July 25, 2017.

       Defendant filed the motion on August 1, 2017, alleging that the trial court had
jurisdiction pursuant to Tennessee Code Annotated section 40-35-212 because Defendant
“ha[d] been continuously housed in the Rutherford County Adult Detention Center since
her sentence was imposed by this [c]ourt.” The State opposed the motion.

       Before testimony began at the August 30, 2017 hearing, the following dialogue
occurred:

              [THE STATE]: Judge, reading the cases that I cited to the Court, it
       appears that in a negotiated sentence that the Court only has the authority
       under the same standard as Rule 35, which is some post sentence change in
       circumstances that was unforeseen to both parties.

              And those examples were cited in the Court as being -- in the
       memorandum -- that were rejected by the Court of Criminal Appeals that
       addressed those that these are not post judgment unforeseen circumstances,
       such as being denied rehabilitative programs and the like.

              Judge, the parole board had a very good reason probably in denying
       parole. Matters of which may not be before the Court.

              [THE COURT]: Well, that’s what I’m wanting to know if they need
       to be brought to the Court. The Court under this statute -- it says, she can
       petition if she is denied parole.

       Defendant was the only witness called to testify. She stated that she reported for
service of her sentence in October 2016 following the entry of her guilty plea. The
following dialogue is from the direct examination of Defendant:

       Q. And you have already been seen by the Parole Board?
       A. Yes, sir.
       Q. And when was that?




                                            -3-
       A. It was April 11th of 2017.1
       Q. So, four months ago?
       A. Yes, sir.
       Q. And their decision was what?
       A. To set me off 36 months because I was high risk.
       Q. As a mitigated offender, they deemed you to be high risk?
       A. Yes, sir.
       Q. Did they give you any indication as to why that is?
       A. No, sir. I asked why I was high risk. And she told me that the Parole
       Board -- or the parole hearing was over.
       THE COURT: Said what now?
       THE WITNESS: She said that the parole hearing was over when I asked
       her why I was a high risk.

        She testified that she had taken advantage of prison-based programs like
“Reformers Unanimous International” and “Keeping Connected.” Defendant admitted
“full responsibility” for her actions that led to her convictions but was of the opinion that
“jail [wa]sn’t helping [her] to better [her]self.” Defendant told the trial court that she
“want[ed] the opportunity to make up” for what she deemed “a big mistake.”

                   Order Granting the Motion to Reconsider Application

       On September 1, 2017, the trial court entered an order finding that it had
jurisdiction over Defendant pursuant to Tennessee Code Annotated section 40-35-212.
The trial court determined that Defendant was eligible for probation “as part of her
agreed upon sentence and the [c]ourt had the authority pursuant to T.C.A. § 40-35-501 to
grant probation.” The trial court determined that Defendant was “an appropriate
candidate for probation” and suspended the balance of Defendant’s sentence to probation.

      The State filed a timely notice of appeal pursuant to Tennessee Rule of Appellate
Procedure 3(c).

                                            ANALYSIS

        On appeal, the State argues that the trial court abused its discretion by suspending
Defendant’s sentence and placing her on probation. Specifically, the State argues that the
trial court improperly applied jurisdiction under Tennessee Code Annotated section 40-
35-501(a)(6)(B) and Tennessee Code Annotated section 40-35-212. Defendant, on the
       1
          The record does not indicate how the parole board calculated Defendant’s release eligibility
date, what “sentencing credits were earned and retained” by Defendant, or why the parole board selected
April 11, 2017, as the hearing date. See Tenn. Code Ann. § 40-35-501(b).
                                                  -4-
other hand, argues that the trial court “properly used its continuing jurisdiction and
discretion in granting the application for suspended sentence under T[ennessee] C[ode]
A[nnotated section] 40-35-212 and T[ennessee] C[ode] A[nnotated section] 40-35-
501(a)(6)(B).”

                                      Jurisdiction

      Tennessee Code Annotated section 40-35-212 provides:

             (a) In imposing a sentence, the court shall determine under what
      conditions a sentence will be served as provided by law. A defendant may
      be sentenced to the department of correction unless prohibited by § 40-35-
      104(b).

      ....

            (c) Unless the defendant receives a sentence in the department, the
      court shall retain full jurisdiction over the manner of the defendant’s
      sentence service.

             (d)(1) Notwithstanding subsection (c), the court shall retain full
      jurisdiction over a defendant sentenced to the department during the time
      the defendant is being housed in a local jail or workhouse awaiting transfer
      to the department. The jurisdiction shall continue until the defendant is
      actually transferred to the physical custody of the department.

Tenn. Code Ann. § 40-35-212(a), (c), (d)(1) (2017) (emphasis added).

      The Sentencing Commission Comments to section 40-35-212 provide:

             Subsections (c) and (d) provide that the judge has full jurisdiction to
      modify the terms and conditions of any sentence unless the defendant has
      been sentenced to the department. There are two exceptions. First, the
      trial judge may modify the sentence for a defendant sentenced to the
      department where the defendant is awaiting transportation to the
      department. Second, as provided in § 40-35-319(b), sentences may be
      modified pursuant to Tenn. R. Crim. P. 35(b), which permits modifications
      within 120 days of sentencing.

Tenn. Code Ann. § 40-35-212 (2017), Sentencing Comm’n Cmts. (emphasis added).

                                           -5-
       Tennessee Code Annotated section 40-35-212 was amended in 1988 to add what is
now subsection (d)(1).2 The “legislative purpose” of 40-35-212(d) was “to help ease
prison overcrowding by clearing the way for trial judges to probate otherwise eligible
persons despite their sentences to the Department of Correction and notwithstanding their
being housed in a local facility awaiting transfer.” State v. Charles Alvin Haney, No.
C.C.A. 839, 1989 WL 28729, at *2 (Tenn. Crim. App. Mar. 29, 1989).

       The State concedes in its brief that section 40-35-212 gives the trial court
jurisdiction in some circumstances but argues that the statute “does not establish
jurisdiction when a defendant is housed in a local facility under contract to house TDOC
inmates.” The State argues that this court’s opinion in State v. Amanda Hope McGill,
No. E2013-02069-CCA-R3-CD, 2014 WL 2854174 (Tenn. Crim. App. June 20, 2014),
no perm. app. filed, supports their argument that the trial court had no jurisdiction to
modify Defendant’s sentence. We disagree. In Amanda Hope McGill, the defendant was
originally housed in the Sullivan County Jail but was then transferred to the work camp at
the Johnson City Women’s Facility, a facility located in Washington County that was
under contract with TDOC to house certain TDOC inmates. Id. at *1-2. The defendant’s
physical custody was transferred to TDOC during her appeal. Id. at *1 n.2.

        Defendant was originally incarcerated in Rutherford County, she remained
incarcerated in Rutherford County through the time the petition was filed, and her
physical custody was never transferred to TDOC. Therefore, we determine that the trial
court had full jurisdiction over Defendant pursuant to Tennessee Code Annotated section
40-35-212(d)(1). See State v. Edenfield, 299 S.W.3d 344, 346 (Tenn. Crim. App. 2009)
(“In contrast to Rule 35, Tennessee Code Annotated section 40-35-212 only permits the
trial court to modify a Department of Correction sentence for a defendant who is held
locally and has not been transferred to the penitentiary.”).

                                      Standard of Review

        Tennessee Code Annotated section 40-35-212 “grants the sentencing court
substantial discretion to determine where and under what conditions a sentence will be
served as provided by law.” State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986) (internal
citations and quotation marks omitted). This court reviews the trial court’s decision to
suspend Defendant’s sentence service under an abuse of discretion standard. State v.
Ruiz, 204 S.W.3d 772, 777 (Tenn. 2006). We will “find that a trial court has abused its
discretion only when the trial court has applied an incorrect legal standard, or has reached



       2
        See Act of March 9, 1988, ch. 556, 1988 Tennessee Public Acts 129. Section 40-35-212(d)(2)
was added in 2005.
                                               -6-
a decision which is illogical or unreasonable and causes an injustice to the party
complaining.” Id. at 778 (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)).


           Authority of Trial Court to Suspend Defendant’s Sentence Service

      Having found that the trial court retained “full jurisdiction” over Defendant, we
must next determine if the court had the power to alter a final judgment that imposed a
TDOC sentence.

        Tennessee Code Annotated section 40-35-501 provides the release eligibility
requirements for inmates housed in TDOC. We determine that the trial court erred in
determining that it had authority to modify the Defendant’s sentence pursuant section 40-
35-501(a)(6). Generally, “inmates with felony sentences of two (2) years or less shall
have the remainder of their original sentence suspended upon reaching their release
eligibility date” and shall be placed on probation. Tenn. Code Ann. § 40-35-501(a)(4)(5).
Before suspending an inmate’s sentence of two (2) years or less and placing the inmate
on probation, TDOC must “notify the district attorney general and the appropriate sheriff,
jail administrator, workhouse superintendent or warden of the release eligibility date”
thereby allowing the notified party an opportunity to file a petition with the sentencing
court requesting denial of suspension of sentence based on disciplinary violations during
time served in the institution.” Tenn. Code Ann. § 501(a)(6)(A). After a petition
requesting denial is filed, the trial court shall conduct a “hearing to determine the merits
of the petition.” The trial court then has the authority to deny “suspension for the
remainder of the sentence or any portion of the sentence.” Tenn. Code Ann. §
501(a)(6)(B). Tennessee Code Annotated section 40-35-501 does not authorize the trial
court to suspend the sentence of any inmate nor does it authorize the trial court to place
an inmate on probation.

        Next, we determine that the trial court could not suspend Defendant’s sentence
and order “the balance of the sentence served on probation supervision” pursuant to
Tennessee Code Annotated section 40-35-306(c) because Defendant was not sentenced to
“a period of continuous confinement.” Section 40-35-306 applies only to sentences of
split confinement in which “[a] defendant receiving probation may be required to serve a
portion of the sentence in continuous confinement for up to one (1) year in the local jail
or workhouse[.]” Tenn. Code Ann. § 40-35-306(a).

       Finally, we note that the trial court did not have the authority to modify the
Defendant’s sentence pursuant to Tennessee Rule of Criminal Procedure 35 because the
petition was not “filed within 120 days after the date the sentence is imposed or probation
is revoked.” Tenn. R. Crim. P. 35(a). Defendant was sentenced on October 25, 2016,
                                            -7-
and the petition was filed June 26, 2017, well after the period of time during which
Defendant had a right to seek a modification of her sentence pursuant to Rule 35.

       Although not raised by Defendant or the State, we will address the trial court’s
authority to suspend Defendant’s sentence and place her on probation under Tennessee
Code Annotated section 40-35-303, which governs probation and provides in pertinent
part:

              (a) A defendant shall be eligible for probation under this chapter if
       the sentence actually imposed upon the defendant is ten (10) years or less;
       however, no defendant shall be eligible for probation under this chapter if
       convicted of a violation of § 39-13-213(a)(2), § 39-13-304, § 39-13-402, §
       39-13-504, § 39-13-532, § 39-15-402, § 39-17-417(b) or (i), § 39-17-1003,
       § 39-17-1004 or § 39-17-1005. A defendant shall also be eligible for
       probation pursuant to § 40-36-106(e)(3).

       ....

              (e) Probation shall be granted, if at all, at the time of the sentencing
       hearing except for sentences served in a local jail or workhouse, or except
       during the time a defendant sentenced to the department of correction is
       being housed in a local jail or workhouse awaiting transfer to the
       department as provided in § 40-35-212(d).

       ....

             (g) The powers granted in this section shall be exercised by the
       judge of the trial court presiding at the trial of original conviction or by
       any successor judge holding court in that jurisdiction.

Tenn. Code Ann. § 40-35-303(a), (e), (g) (2017) (emphasis added). Defendant pled
guilty to two counts of robbery in concert with two or more others in violation of
Tennessee Code Annotated sections 39-13-401 and 39-12-302. She was sentenced to less
than ten years. Defendant was eligible for probation at the time she was sentenced by the
trial court.

       We determine that the “trial court presiding at the trial of original conviction” has
the authority to suspend a TDOC sentence of an eligible defendant and to place that
defendant on probation “during the time a defendant sentenced to the department of
correction is being housed in a local jail or workhouse awaiting transfer to the department
as provided in § 40-35-212(d)”. See Tenn. Code Ann. § 40-35-303(e), (g). We also
                                            -8-
determine that the phrase “the judge of the trial court presiding at the trial” in section 40-
35-303(g) encompasses the judge of the trial court presiding over the guilty plea and
sentencing of a defendant. See State v. Karon L. Washington, No. 02C-01-9510-CC-
00306, 1996 WL 417653, at *1 (Tenn. Crim. App. July 26, 1996).

       In Karon L. Washington, the defendant entered a guilty plea in Madison County
and was sentenced “pursuant to a plea bargain agreement” to an effective two-year
sentence to be served consecutively to a prior Texas sentence. Id. Before she began
serving her Tennessee sentence, the defendant was arrested in Shelby County and
extradited to Missouri. After Tennessee filed a detainer, Missouri returned the defendant
to Madison County. Approximately two years after pleading guilty and while housed
locally in Madison County and awaiting transfer to TDOC, the defendant filed a “Motion
to Amend Judgment” that asked the trial court to order her “Tennessee sentences to be
served concurrently with the Missouri sentences.” Id. Following a hearing, the trial
court initially determined that it did not “have any authority” to amend the final judgment
of conviction. Id. After a second hearing, the trial court altered the defendant’s
sentences by ordering her immediate release and placing her on probation. Id. at *2. The
State appealed. In determining that the trial court had jurisdiction to alter the sentences
of the defendant under section 40-35-212 and section 40-35-303(e), this court stated:

               Before a trial court may grant probation to an accused who has been
       sentenced to the Department of Correction and is awaiting transfer, (a) the
       trial court must have jurisdiction to enter the judgment, (b) the accused
       must be confined to the county jail or workhouse, (c) the nature of the
       offense and the length of the sentence do not bar probation, and (d) it is in
       the best interest of society and the accused to grant the accused probation.
       If these prerequisites are present, the trial court may grant the accused
       probation.

Id. at *3. The court determined that “all of the essential prerequisites were met” and that
“neither the length of the sentences nor the nature of the offenses barred the suspension
of the sentences and placing [the defendant] on probation” and that, “[g]iven these
circumstances, the trial court clearly had jurisdiction to grant the relief it gave to [the
defendant].” Id. The court then stated that “[t]he only question that remains to be
answered is whether [the defendant] was a fit person for probation, and probation was in
the best interest of society and [the defendant].” Id. at *4. The court affirmed the trial
court’s judgment suspending the defendant’s sentence and placing her on probation. Id.

      We hold that the trial court had full jurisdiction over the defendant pursuant to
Tennessee Code Annotated section 40-35-212(d)(1) and that the court had the authority
pursuant to Tennessee Code Annotated section 40-35-303(e) to suspend the defendant’s
                                             -9-
sentence and place her on probation. Next we will determine if the trial court applied the
proper legal standard in the exercise of that authority.

Legal Standard for Evaluating Petitions Filed Pursuant to Tennessee Code Annotated
                               Section 40-35-303(e)

       We have found no cases establishing the applicable legal standard that a trial court
must utilize in determining whether to suspend a TDOC sentence and place a defendant
on probation pursuant to section 40-35-303(e). We therefore turn to other post-
sentencing cases in which a trial court altered or modified a defendant’s sentence after the
judgment of conviction became final. In doing so, we will trace the development of the
applicable legal standard for evaluating an application filed pursuant to section 40-35-
306(c) and a motion filed pursuant to Rule 35(a) over the last thirty-plus years.

       In State v. Ruiz, the supreme court stated that “an application to suspend the
balance of a sentence” filed pursuant to section 40-35-306(c) “is akin to a motion to
reduce a sentence” filed pursuant to Rule 35. Ruiz, 204 S.W.3d at 777. We determine
that a petition filed pursuant to section 40-35-303(e) is akin to an application filed
pursuant to section 40-35-306(c) and a motion filed pursuant to Rule 35.

       The first supreme court opinion that we have found that discussed a Rule 35(a)
motion in the context of a sentence entered as the result of a plea agreement was State v.
Hodges, 815 S.W.2d 151, 154 (Tenn. 1991), a four-to-one decision in which the majority
stated that “[t]here is absolutely no connection between the plea bargaining procedures
prescribed in Tenn. R. Crim. P. 11 and the correction or reduction of sentence provisions
of Tenn. R. Crim. P. 35.” The dissent in Hodges strongly criticized the majority’s
holding that Rule 35(b) gives the trial court “unfettered discretion to modify a sentence”
entered pursuant to a plea agreement. Id. at 155 (Daughtrey, J., dissenting).

       Two years after Hodges, the supreme court issued State v. Grady Hargrove, Nos.
01S01-9203-CC-00035, 01S019203-CC-00036, 03S01-9203-CR-00026, 1993 WL
300759, at *2 (Tenn. Aug. 9, 1993), reh’g denied (Tenn. Sept. 27, 1993)).3 In Grady
Hargrove, the court “consolidated [] three cases for argument in order to determine the
scope of authority of an appellate court to alter the terms of a sentence that was imposed
as the result of an agreed guilty plea in the trial court.” Id. at *1. Like Hodges, Grady
Hargrove was a four-to-one decision, with the majority opinion authored by the justice
who authored the dissent in Hodges. Id. The majority in Grady Hargrove stated “that as

       3
        We note that at the top of the first page of Grady Hargrove the following appears: “Only the
Westlaw citation is currently available. NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR
PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO
REVISION OR WITHDRAWAL.”
                                                 - 10 -
the opinion in Hodges suggests, the scope of Rule 35(b) is limited in those cases in which
the defendant has pleaded guilty by agreement with the state, in exchange for a specific
sentence.” Id. at *2 (emphasis added). The dissenting opinion in Grady Hargrove,
authored by the justice who authored the majority opinion in Hodges, claimed that
Hodges did not in any way limit Rule 35 in cases in which the plea was entered as a
result of a plea agreement. Id. at *3-4 (O’Brien, J., dissenting).

        One year after Grady Hargrove was issued, this court noted in State v. McDonald:

        While Hargrove does not expressly provide the limits of Rule 35(b), it
        strongly suggests that an alteration of a defendant’s sentence is generally
        prohibited if it violates the plea agreement entered into under Rule
        11(e)(1)(C).4 . . .

               Although the court in [Grady] Hargrove limited the scope of Rule
        35(b), we do not find that this limitation results in the waiver of Rule 35(b)
        motions in cases where a defendant pleads guilty pursuant to Rule
        11(e)(1)(C). For example, a situation may arise where unforeseen, post-
        sentencing developments would permit modification of a sentence in the
        interest of justice.

893 S.W.2d 945, 947 (Tenn. Crim. App. 1994) (emphasis added) (footnote added).

       In State v. Ernesto Gonsales, this court, citing McDonald and Grady Hargrove,
reversed a trial court’s Rule 35 modification of a defendant’s plea-bargained sentence
holding that, “[b]ecause the trial court was aware of the I[mmigration and]
N[aturalization] S[ervice] hold prior to accepting the plea and sentencing the defendant to
a six-year term, there were no unusual or unforeseen circumstances taken into
consideration by the order of modification.” No. E2002-02687-CCA-R3-CD, 2003 WL
22697299, at *6 (Tenn. Crim. App. Nov. 14, 2003) (emphasis added), no perm. app.
filed.

      Ruiz is the only supreme court opinion after Hodges and Grady Hargrove to
address the applicable legal standard for evaluating an application to suspend sentence

        4
            Rule 11(e)(1)(C) has been renumbered and is now Rule 11(c)(1)(C). Rule 11(c)(1)(C) states
that “[t]he district attorney general and the defendant’s attorney, or the defendant when acting pro se, may
discuss and reach a plea agreement. The court shall not participate in these discussions.” Tenn. R. Crim.
P. 11(c)(1). The Rule also states that “[i]f the defendant pleads guilty or nolo contendere to a charged
offense or a lesser or related offense, the plea agreement may specify that the district attorney general
will[] . . . agree that a specific sentence is the appropriate disposition of the case.” Tenn. R. Crim. P.
11(c)(1)(C).
                                                    - 11 -
service under section 40-35-306(c) or a motion to reduce sentence under Rule 35. Ruiz
involved an application to suspend the balance of a sentence that resulted from a guilty
plea entered with no agreement as to the sentence. Ruiz, 204 S.W.3d at 775. In Ruiz, the
court noted that “[t]he Advisory Commission Comments to [Rule 35] provide that ‘[t]he
intent of this rule is to allow modification only in circumstances where an alteration of
the sentence may be proper in the interests of justice.’” Id. at 778 (citing Tenn. R. Crim.
P. 35, Advisory Comm’n Cmts.) (last alteration in original). The court then commented
that:

       This [c]ourt, too, has recognized that “[t]he intent of Rule 35(b) is to allow
       modification in circumstances where an alteration of the sentence may be
       proper in the interest of justice.” State v. Hodges, 815 S.W.2d 151, 154
       (Tenn. 1991). Indeed, the Court of Criminal Appeals has affirmed a trial
       court’s denial of a Rule 35 motion where the defendant “failed to show that
       post-sentencing information or developments had arisen to warrant a
       reduction of his sentence in the interest of justice.” State v. McDonald, 893
       S.W.2d 945, 948 (Tenn. Crim. App. 1994).

Id. The Ruiz court, in what it characterized as a case of first impression, held

       that the applicable legal standard for evaluating applications to suspend the
       balance of a sentence, made pursuant to Tennessee Code Annotated section
       40-35-306(c), is the same as that applied to a motion to reduce sentence:
       whether post-sentencing information or developments have arisen that
       warrant an alteration in the interest of justice.

Id. (emphasis added).

       We note that Ruiz did not reference or cite to Grady Hargrove, did not use the
word “unforeseen” in the legal standard even though it quoted from and cited to
McDonald, and did not specifically limit the applicable legal standard only to cases
involving sentences that resulted from a guilty plea entered pursuant to Tennessee Rule
of Criminal Procedure 11(c)(1)(C). Even though the Ruiz opinion did not use the word
“unforeseen” in the legal standard, the supreme court did indicate that more than expected
post-sentencing information or developments were needed to support a section 40-35-
306(c) application:

             In this case, the only proof of post-sentencing circumstances offered
       in support of Defendant’s application was a stipulation to the effect that
       Defendant was abiding by the terms of his confinement and work release.
       Of course, defendants are expected to comply with the terms of their
                                            - 12 -
       sentences, and a defendant’s compliance is not, in and of itself, a sufficient
       development to require that he or she be placed on probation earlier than
       initially ordered. . . . Accordingly, the trial court did not apply an
       incorrect legal standard when it declined to grant Defendant’s application
       on the basis of this proof alone.

Id. (emphasis added).

        To successfully support a section 40-35-306(c) application or a Rule 35 motion, a
defendant must prove that more than expected post-sentencing circumstances or
developments have occurred. Roget’s Thesaurus includes as synonyms for expected:
anticipated, awaited, contemplated, foreseen, and predictable. “Unforeseen, post-
sentencing developments,” like the example in McDonald, or “unusual or unforeseen
circumstances” mentioned in Ernesto Gonsales, are examples of things that are not
expected. Therefore, a trial court must first determine whether an applicant or movant
has presented sufficient proof to show that post-sentencing developments or
circumstances that were not expected have occurred. Then, the trial court must determine
the interest of justice, if those unexpected post-sentencing developments or circumstances
warrant an alteration of sentence service or a modification of the sentence.

       We hold in a case of first impression that the applicable legal standard a trial court
must use to determine whether to suspend a TDOC sentence and place a defendant on
probation pursuant to Section 40-35-303(e) is the standard established in Ruiz for an
application under Tennessee Code Annotated section 40-35-306(c) and a petition under
Tennessee Rule of Criminal Procedure 35—“whether post-sentencing information or
developments have arisen that warrant an alteration in the interest of justice.” Ruiz, 204
S.W.3d at 778. We also hold that a defendant must show that the post-sentencing
information or developments were more than simply what was expected, for example a
defendant could show that the post-sentencing information or developments were
unexpected, unforeseen, or unanticipated.

        In this case, Defendant entered her plea of guilty pursuant to Rule 11(c)(1)(C) of
the Tennessee Rules of Criminal Procedure. The State and Defendant agreed to a
specific sentence of seven years, two months, and twelve days to be served in TDOC, as
an especially mitigated offender with a release eligibility after service of twenty percent
of the sentence. The sentence was accepted and placed into effect by the trial court.

       At the hearing on her petition, Defendant testified that she was denied parole on
April 11, 2017. She testified that the parole board “set me off 36 months because I was a
high risk.” That testimony corresponded to the claim made in the petition that she was
informed by the parole board her that she would not be eligible for parole until April of
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2020. She testified that she took advantage of the programs available to her at the facility
in which she was incarcerated and introduced several certificates showing that she had
successfully completed those programs.5 The State offered no proof to contradict or
rebut Defendant’s testimony concerning this post-sentencing development or to explain
the actions of the parole board.

      Having accepted the guilty pleas of Defendant and her co-defendants, the trial
court was in a position to know the background and relevant facts of the cases and to
weigh the degree of culpability among the three co-defendants. Based on the unrebutted
proof before the trial court, the parole board based its decision to deny parole on the
underlying nature of the offenses committed by Defendant. The nature of the offenses
was known to the State and Defendant at the time the plea agreement was reached and
was known to the trial court when the plea was accepted. The following exchange from
the hearing on the motion to reconsider demonstrates the trial court’s concern about
Defendant being denied parole:

              THE COURT: Well, what about this provision about for review after
       a denial of parole? Don’t I have the right to do that? She’s reached her
       release eligibility date and [was] denied parole as I understand it. On this, I
       can review it and then determine whether to suspend the sentence or not.

              [THE STATE]: Judge, reading the cases that I cited to the [c]ourt, it
       appears that in a negotiated sentence that the [c]ourt only has the authority
       under the same standard as Rule 35, which is some post[-]sentence change
       in circumstances that was unforeseen to both parties. Judge, the parole
       board had a very good reason probably in denying parole. Matters of which
       may not be before the [c]ourt.

        From the above exchange, we infer that the trial court did not expect Defendant to
be denied of parole. The unrebutted proof before the trial court was that the parole board,
based on information that was available to the State, Defendant, and the trial court at the
time the guilty plea was entered and accepted effectively tripled the length of time
Defendant was required to serve in incarceration before she was eligible for release on
parole. We infer from the trial court’s statements and its order that the parole board’s
decision was not what the trial court expected. “[A]n 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

       5
          Three “Certificate[s] of Achievement” from the Reformers Institutional Program, a certificate
showing that Defendant participated in “My Relationship with God- SALT,” and a “300 Club Breaking
the Chain of Addiction” certificate for participating in June 2017 in “Reformers Unanimous
International” were introduced as exhibits to Defendant’s testimony.
                                                  - 14 -
injustice to the party complaining.” Ruiz, 204 S.W.3d at 778 (citing Howell, 185 S.W.3d
at 337). We determine that the trial court did not apply an incorrect legal standard, that
its decision was not illogical or unreasonable, and that its decision did not cause an
injustice to the State, which had negotiated to have Defendant plead guilty and be
sentenced as a mitigated offender with a twenty percent release eligibility date.

                                    CONCLUSION

       We hold that the trial court did not abuse its discretion in determining that post-
sentencing developments warranted the suspension of Defendant’s sentence in the
interest of justice. Therefore, we affirm the judgment of the trial court.


                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




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