        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 8, 2013

            STATE OF TENNESSEE v. TIMOTHY JAMES COLEY

               Direct Appeal from the Circuit Court for Madison County
                         No. 11502    Donald H. Allen, Judge




                  No. W2012-01122-CCA-R3-CD - Filed June 3, 2013


Following a jury trial in the Madison County Circuit Court, Defendant Timothy James Coley
was convicted of the Class B felony offense of initiation of the process to manufacture
methamphetamine, and also of the Class A misdemeanor offenses of possession of
methamphetamine, possession of drug paraphernalia, and evading arrest. For each of the
Class A misdemeanors, he was sentenced to serve concurrent sentences of 11 months and 29
days, with a 75% service by incarceration prior to eligibility for work release, furlough, trusty
status and/or rehabilitation programs. Defendant was sentenced to serve 12 years as a Range
I standard offender for the felony conviction, with service in the Community Corrections
Program, consecutive to, and following service of the sentence for the misdemeanor
convictions. Typed under “Special Conditions” of each judgment for a misdemeanor
conviction is a requirement that the incarceration must be served in the Madison County Jail
and not at the Madison County penal farm. Also typed in the Special Conditions section is
the provision that Defendant was not eligible for work release or “any other special jail
credits.” Handwritten on the judgment for possession of methamphetamine is the addition
“(other than [g]ood [b]ehavior credits).” Defendant presents one very narrow issue in this
appeal. He argues that the trial court had no authority to place any restrictions on “the
earning of credits and the manner in which the credits are earned.” Specifically, he asserts
he should be entitled to sentence credits under Tennessee Code Annotated section 41-2-147.
The state filed a brief with a detailed argument section, but failed to address the precise issue
raised by Defendant. Following a thorough review of the record and Defendant’s brief, we
reverse the judgments of the trial court as to the sentencing credit restrictions in the
misdemeanor judgments and remand for entry of amended judgments that do not include the
restriction on earning sentencing credits.

                     Tenn. R. App. P. 3 Appeal as of Right;
Judgments of the Circuit Court Affirmed in Part, Reversed in Part, and Remanded
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
D. K ELLY T HOMAS, J R., JJ., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Timothy James Coley.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Brian Gilliam, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

Facts

       In the section of his brief where the issue on appeal is specified, Defendant states the
issue as follows: “Whether or not the trial court erred in placing certain restrictions upon the
defendant that would apply to the service of his misdemeanor sentences.” In the relatively
short argument section of his brief, Defendant focuses on the trial court’s erroneous denial
to Defendant of “access to any programs offered by the Madison County Sheriff’s
Department during the service of his sentence.” Relying on Tennessee Code Annotated
section 41-2-147, Defendant asserts that, “In this case, the trial court’s orders allow the
Defendant to earn ‘good time credits’ but expressly forbade him from earning credit for work
done in the institution.”

        Tennessee Code Annotated section 41-2-147 provides in full as follows:

                41-2-147. Certain prisoners in local jails or workhouses –
         Eligibility for work-related programs – Credits. – (a) The sheriff or
         administrative authority having responsibility for the custody of any person
         sentenced to a local jail or workhouse pursuant to the provisions of former
         § 40-35-302 [repealed], § 40-35-306 [repealed], § 40-35-307 [repealed] or
         § 40-35-311 [repealed] or present § 40-35-302, § 40-35-307 or § 40-35-314
         shall, when a person has become eligible for work related programs
         pursuant to those sections, be authorized to permit the person to perform
         any of the duties set out in § 41-2-123 or § 41-2-146.

                (b) Work performed by a prisoner under this section shall be credited
         toward reduction of the prisoner’s sentence in the following manner: for
         each one (1) day worked on such duties by the prisoner the sentence shall
         be reduced by two (2) days.



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        (c) Any prisoner receiving sentence credits under this section shall
 not be eligible for the sentence reduction authorized by § 41-2-111. [Acts
 1984, ch. 841, § 1.]

Tennessee Code Annotated section 40-35-302 provides in pertinent part as follows:

        40-35-302. Misdemeanor sentencing – Rehabilitative program
 credits – Probation – Supervision of defendants on probation.

        (a) In imposing a sentence for a misdemeanor, the court may conduct
 a separate sentencing hearing. If the court does not conduct a separate
 sentencing hearing, the court shall allow the parties a reasonable
 opportunity to be heard on the question of the length of any sentence and
 the manner in which the sentence is to be served.

         (b) In imposing a misdemeanor sentence, the court shall fix a
 specific number of months, days, or hours, and the defendant shall be
 responsible for the entire sentence undiminished by sentence credits of any
 sort except for credits authorized by § 40-23-101, relative to pretrial jail
 credit, or §§ 33-5-406 and 33-7-102, relative to mental examinations and
 treatment, and credits awarded in accordance with either, but not both, § 41-
 2-111 or § 41-2-147. The court shall impose a sentence consistent with the
 purposes and principles of this chapter.

        (c) When a defendant is serving a misdemeanor sentence, the
 defendant shall be continuously confined for the duration of the sentence
 except as provided in subsections (d) and (e); provided, that nothing in this
 section shall be construed as prohibiting a defendant, in the discretion of
 the workhouse superintendent or sheriff, from participating in work crews
 during the time the defendant is to be continuously confined.

        (d) In imposing a misdemeanor sentence, the court shall fix a
 percentage of the sentence that the defendant shall serve. After service of
 such a percentage of the sentence, the defendant shall be eligible for
 consideration for work release, furlough, trusty status and related
 rehabilitative programs. The percentage shall be expressed as zero percent
 (0%), ten percent (10%), twenty percent (20%), thirty percent (30%), forty
 percent (40%), fifty percent (50%), sixty percent (60%), seventy percent
 (70%) but not in excess of seventy-five percent (75%). If no percentage is
 expressed in the judgment, the percentage shall be considered zero percent

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         (0%). When the defendant has served the required percentage, the
         administrative authority governing the rehabilitative program shall have the
         authority, in its discretion, to place the defendant in the programs as
         provided by law. In determining the percentage of the sentence to be served
         in actual confinement, the court shall consider the purpose of this chapter,
         the principles of sentencing and the enhancement and mitigating factors set
         forth in this chapter and shall not impose such percentages arbitrarily.

(emphasis added).

        In its brief, the State set forth its interpretation of the issue on appeal as follows: “Did
the trial court abuse its discretion by imposing restrictions as to where the defendant served
his concurrent sentences of 11 months, 29 days within Madison County before his release on
community corrections?” (emphasis added). As can be readily observed, this statement does
not include Defendant’s sole issue that the trial court lacked authority to prohibit him from
being allowed sentence credits pursuant to Tennessee Code Annotated section 41-2-147. In
the argument section of its brief, the State continues to misinterpret Defendant’s issue on
appeal:

                The defendant contends that the trial court did not have the authority
         to require that he serve his sentence of 11 months 29 days in the Madison
         County Jail – as opposed to the Madison County Penal Farm – prior to his
         release on community corrections.

Brief for the State, at 3.

        Furthermore, the State recognizes that Tennessee Code Annotated section 41-2-147
(which Defendant relies on in support of his argument) “clearly delineates the sheriff’s
authority as it relates to inmates in their custody.” (emphasis added). However, the State
continues to address the wrong issue by asserting the cited statute “says nothing regarding
the trial court’s authority to impose restrictions on the placement of the inmate within the
county.” (emphasis added). Brief for the State, at 5. While there is no need to further quote
from the State’s argument on appeal, we do note that the remainder of the State’s argument
also addresses its mistaken interpretation of Defendant’s issue.

        We interpret Tennessee Code Annotated section 40-35-302 and 41-2-147 to provide
for a sheriff in whose custody a defendant is placed, to have the discretion and authority to
determine if the defendant can participate in work related programs pursuant to Tennessee
Code Annotated section 41-2-147 and receive the “2 for 1” sentence credits allowed by
subsection (b) of that statute. As noted above, subsection (c) provides that any prisoner who

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receives the “2 for 1” credits under subsection (b), is not eligible for the sentence reduction
credits authorized by Tennessee Code Annotated section 41-2-111. See Tenn. Code Ann. §
41-2-147(c). Tennessee Code Annotated section 41-2-111(b) allows for good time (or
behavior) credits.

       As acknowledged by the State in its brief, Tennessee Code Annotated section 41-2-
147 “clearly delineates” the sheriff’s authority as it relates to inmates. Our General Assembly
granted this authority to the sheriffs in Tennessee who have custody of prisoners.
Accordingly, it was error for the trial court to impose a special condition in the misdemeanor
judgments which in effect prohibited the sheriff of Madison County from carrying out his
statutory responsibilities as to Defendant, as they relate to Tennessee Code Annotated section
41-2-147.

                                      CONCLUSION

        The convictions are affirmed, but the judgments as to sentencing for the misdemeanor
convictions of possession of methamphetamine, possession of drug paraphernalia, and
evading arrest are reversed as to special conditions imposed, and those judgments are
remanded for the sole purpose of entry of amended judgments which delete the language:
“Also, the Court orders that the Defendant receive no work release or any other special jail
credits while in jail.”

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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