         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 11, 2001 Session

                    STATE OF TENNESSEE v. DALE GODWIN

                   Direct Appeal from the Circuit Court for Obion County
                   Nos. 9654, 9655, 9656, 9713    William B. Acree, Judge



                  No. W2001-00212-CCA-R3-CD - Filed December 14, 2001


In 1995, the Defendant pled guilty to four felony drug charges for which he received three
concurrent eight-year sentences and one concurrent five-year sentence, to be served on Community
Corrections. Subsequently, the trial court revoked the Defendant’s Community Corrections
sentences and ordered him to serve twelve years in the Tennessee Department of Correction. The
Defendant now appeals, alleging that the trial court lacked jurisdiction to re-sentence the Defendant
and that the twelve year sentence was improperly imposed. Finding no error, we affirm the
judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE , JJ., joined.

Victor L. Ivy and Danny R. Ellis (on appeal), Jackson, Tennessee; and Kevin McAlpin, Assistant
District Public Defender (at trial), Dresden, Tennessee, for the Appellant, Dale Godwin.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; James T. Cannon, Assistant District Attorney
General; and James David Kendall, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                            OPINION

                                             I. FACTS

         On February 7, 1995, the Obion County Grand Jury indicted the Defendant for three counts
of selling .5 grams or more of cocaine, a Class B felony; one count of possession with intent to sell
cocaine, a Class C felony; and one count of public intoxication, a Class C misdemeanor.

       On February 27, 1995, the Defendant pled guilty to the three charges of selling cocaine and
was sentenced to eight years for each conviction, to be served on Community Corrections with
Westate Corrections Network. The trial court ordered that each of the eight-year sentences run
concurrently with the others. In addition, each judgment indicates that the Defendant was to serve
six months in jail. The Defendant also pled guilty to the Class C felony charge of possession of
cocaine with intent to sell and received a five-year sentence with Westate Corrections Network. The
Defendant was ordered to serve six months in jail, and the sentence was to be served concurrently
with the other three sentences.

       Subsequently, a Community Corrections violation report was filed alleging that on March
8, 1998, the Defendant was arrested and charged with DUI and evading arrest. Westate Corrections
Network filed a petition requesting a criminal summons be issued for the Defendant. The trial court
entered an order on June 16, 1998, issuing a criminal summons for the Defendant and setting a
hearing on the Community Corrections violation for June 22, 1998. There is no indication in the
record that the Defendant was ever served with the summons or that a hearing was held. On
November 22, 2000, a supplemental Community Corrections violation report was filed, alleging that
on November 16, 2000, the Defendant was found guilty in the Obion County General Sessions Court
of evading arrest. Again, pursuant to a petition filed by Westate Corrections Network, the trial court
ordered the issuance of a capias for the arrest of the Defendant. At the time of the order, the
Defendant was being held in the Obion County Jail, and the capias was served.

       On December 8, 2000, the trial court conducted a hearing and determined that the Defendant
had violated the terms of his Community Corrections sentence. A sentencing hearing was held on
January 12, 2001, at which time the trial court sentenced the Defendant to twelve years in the
Tennessee Department of Correction on each of the three Class B felonies, with the sentences to run
concurrently, and six years in the Tennessee Department of Correction for the Class C felony
conviction, also to run concurrently with the other charges.

                                          II. ANALYSIS

                                 A. Jurisdiction to Re-sentence

        There are four judgments in this case, three for selling .5 grams or more of cocaine, a Class
B felony and one for possession with intent to sell cocaine, a Class C felony. Each judgment is dated
February 27, 1995, and indicates that the Defendant is sentenced to a “community based alternative,”
in addition to a six-month county jail sentence. Each judgment specifies “Westate Corrections
Network” as the community based alternative. Each judgment for a Class B felony contains in the
“Special Conditions” portion of the judgment the following language: “8 years W/WCN to serve 6
months in Cty Jail.” The judgment for the Class C felony specifies “5 years W/WCN to serve 6
months in Cty Jail.”

       In a subsequent order dated March 11, 1995, the following language appears:
       In this cause, the Court has sentenced the Defendant to the State Penitentiary and has
       found the Defendant unsuitable for state probation. The Court finds the Defendant
       to be a suitable candidate for intensive supervision in Community Corrections.


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       IT IS THEREFORE, ORDERED, by the Court that the Defendant be sentenced to
       the Community Corrections Program in the 27th Judicial District for a period of 8
       years and to be credited with 144 days on his sentence.

        The Defendant argues that the trial court sentenced him to the state penitentiary and therefore
had no jurisdiction to increase the length of the Defendant’s sentence. The State argues in its brief
that the trial court “effectively suspended service in the state penitentiary in favor of the community
corrections program.” We agree with the State. In our view, the judgments filed on February 27,
1995 control the Defendant’s sentences, and these judgments clearly indicate sentences to be served
on Community Corrections rather than in the state penitentiary. The order of March 11, 1995
appears to be a “fill in the blank” form order for Community Corrections cases in Obion County.
The judgments are controlling as to the terms and conditions of the Defendant’s original sentences,
and the Defendant’s argument that the trial court lacked jurisdiction to increase the length of the
sentences after revoking the Community Corrections sentences is without merit.

                                          B. Re-sentencing

        Assuming that a new sentencing hearing is conducted, a trial court generally has the authority
to increase the length of a revoked Community Corrections sentence up to the maximum sentence
within the appropriate sentence range for the offense. State v. Samuels, 44 S.W.3d 489, 493 (Tenn.
2001); see also Tenn. Code Ann. § 40-36-106(e)(2). The trial court in this case conducted a “new”
sentencing hearing on January 12, 2001.

       The Defendant argues that the trial court was predisposed to imposing the maximum sentence
based on comments it made during the violation hearing on December 8, 2000. At that time, the
following exchange occurred between the trial court and counsel:
       Mr. McAlpin: Your Honor, it’s going to be a plea of guilty, but I would at least like
       to argue.
       The Court: Well, let me tell you this before you do that. I’m going to order a
       sentencing hearing in this case and consider increasing his sentence. Isn’t eight years
       the controlling sentence in a Class B felony?
       General Kendall: Yes, Your Honor, I believe that is the controlling - - -
       The Court: And I think this is one of these deals he probably figured he’d be getting
       out a lot quicker if he goes to the Department of Correction, and I’m not so sure
       that’s the proper thing to do. I can increase his sentence of 12 years, provided the
       evidence at the sentencing hearing justified it. So, I’m going to order a sentencing
       hearing in this case. If you want to talk with him before he enters a plea of guilty,
       you can do so.

         The State argues in its brief that the trial court was “merely informing defense counsel of all
of the available options, prior to entry of a guilty plea.” We agree. In our view, the comments by
the trial court do not indicate a predisposition to sentence the Defendant to the maximum sentence
of twelve years. The trial judge is, in our view, merely discussing the range of possible outcomes
in this case. We note that the trial judge said that he would “ . . . consider increasing [the

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Defendant’s] sentence.” (Emphasis added). He also stated, “I can increase his sentence of twelve
years, providing the evidence at the sentencing hearing justified it.” (Emphasis added). This
language clearly indicates that the trial court had no predisposition other than to consider all of the
appropriate options at a sentencing hearing to be set at a later date.

         Concerning the propriety of the “new” sentences imposed, our analysis begins with well-
settled principles that govern our review of a sentence determination imposed under the Criminal
Sentencing Reform Act of 1989. When a criminal defendant challenges the length, range, or manner
of service of a sentence, the reviewing court must conduct a de novo review of the sentence with a
presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d). This presumption, however, “is conditioned upon the affirmative showing in the record that
the trial court considered the sentencing principles and all relevant facts and circumstances.” State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to show such
consideration, the review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123
(Tenn. Crim. App. 1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (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 the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d
at 123. However, the sentence must be adequately supported by the record and comply with the
purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237
(Tenn. 1986).

       When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this



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case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence "even if we would have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

         In sentencing the Defendant, the trial court applied enhancement factor (1), that “[t]he
[D]efendant has a previous history of criminal convictions or criminal behavior,” Tenn. Code Ann.
§ 40-35-114(1); and enhancement factor (8), that “[t]he [D]efendant has a previous history of
unwillingness to comply with the conditions of a sentence involving release in the community . . .
.” Id. § 40-35-114 (8). Thus, the trial court found that two enhancing factors applied in sentencing
the Defendant. Additionally, the trial court found that no mitigating factors applied.

        We agree with the trial court concerning both of the enhancement factors applied in this case.
The record does indicate that the Defendant has a previous history of criminal convictions or
criminal behavior. After initially being sentenced to Community Corrections, the Defendant was
convicted for driving under the influence, public intoxication, and twice for evading arrest. The pre-
sentence report indicates a prior conviction for possession of a weapon by a convicted felon.
Additionally, as the State points out in its brief, there are two juvenile adjudications that the trial
court apparently did not consider but could have properly considered as an enhancement factor under
Tennessee Code Annotated § 40-35-114(20).

        In order for enhancement factor (8) to apply, the State must prove that the defendant “has a
previous history of unwillingness to comply with the conditions of a sentence involving release in
the community.” Tenn. Code Ann. § 40-35-114(8) (1997). In State v. Adams, 45 S.W.3d 46 (Tenn.
Crim. App. 2000), this Court addressed a case wherein the defendant challenged, inter alia, the trial
court’s application of enhancement factor (8) to his sentences for offenses that he committed while
on probation. Finding factor (8) inapplicable, we held as follows:

       [The defendant] argues that the trial court should not have considered his previous
       unwillingness to comply with a sentence involving release in the community. The
       record reflects that the trial court applied this factor because [the defendant] was on
       probation at the time he committed the present offenses. We hold that the trial court
       erred by applying the enhancement factor. The commission of the offense for which
       the defendant is being sentenced does not make factor (8) applicable because there
       must be a previous history of unwillingness to comply.
Adams, 45 S.W.3d at 60 (citing State v. Hayes, 899 S.W.2d 175, 185-86 (Tenn. Crim. App. 1995)).
Similarly, in Hayes this Court noted that “the commission of the offense for which a defendant is


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being sentenced should not make factor (8) applicable, . . . there must be a previous history of
unwillingness.” Hayes, 899 S.W.2d at 186. (Emphasis in original).

         In the case sub judice, Defendant was resentenced pursuant to the provisions of the
Community Corrections Act found in Tennessee Code Annotated section 40-36-106(e)(4). Under
Hayes and Adams, if the commission of the offenses for which Defendant was being resentenced
had been committed while he was on probation or some other form of release, factor (8) would
clearly not be applicable. Initially, it might be said that factor (8) would likewise be inapplicable
in a situation identical to this case, where the defendant commits various crimes while being released
under the Community Corrections Act. In other words, the proper question is, did the crimes
committed by Defendant while on community corrections constitute a “previous history” of
unwillingness to comply with the conditions of release in the community? Thus, the issue to be
resolved by this Court is whether the “previous history” means a history previous to the commission
of the offense, or previous to the sentencing hearing. Clearly, when the trial court initially sentences
a defendant for a crime, Hayes and Adams state that the commission of the offense for which the
sentence is being imposed cannot be used to establish factor (8).

        However, upon examining Tennessee Code Annotated section 40-36-106(e)(4), it may be
concluded that a defendant’s “previous history” upon resentencing after revocation of community
corrections can include conduct by the defendant while serving the community corrections sentence.
Tennessee Code Annotated section 40-36-106(e)(4) states as follows:

        The court shall also possess the power to revoke the sentence imposed at any time
        due to the conduct of the defendant or the termination or modification of the program
        to which the defendant has been sentenced, and the court may resentence the
        defendant to any appropriate sentencing alternative, including incarceration, for any
        period of time up to the maximum sentence provided for the offense committed, less
        any time actually served in any community-based alternative to incarceration.

(Emphasis added).

        Upon revocation of a community corrections sentence, whenever the trial court opts to
impose a sentence which exceeds the length of the initial sentence, a sentencing hearing pursuant
to the principles of the Sentencing Reform Act must be conducted. State v. Crook, 2 S.W.3d 238,
240 (Tenn. Crim. App. 1998). If the sentence is increased, the trial court must find that appropriate
enhancement factors exist. The trial court cannot arbitrarily establish the length of a new sentence,
and an increase in the sentence cannot be used for the sole and exclusive purpose of punishing a
defendant for violating the provisions of a community corrections sentence. State v. Cooper, 977
S.W.2d 130, 132 (Tenn. Crim. App. 1998) (citing State v. Ervin, 939 S.W.2d 581 (Tenn. Crim. App.
1996)).

       We conclude that facts which have developed between the time a defendant is initially
sentenced to community corrections, and the time that the sentence is subsequently revoked, may
be considered in applying enhancement factors and increasing a sentence. If this conclusion was

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incorrect, then upon revocation of community corrections, a sentence could be increased based only
upon facts which existed prior to the date of the original sentencing.

        While such “unused” enhancement factors might exist in a situation where the defendant
entered into a negotiated plea agreement for a minimum sentence to be served on community
corrections, likely, there would be no such “unused” enhancement factors existing in an original
sentence imposed by the trial court after a sentencing hearing. Furthermore, Tennessee Code
Annotated section 40-36-106(e)(4), which permits the increase in a sentence following revocation,
does not specifically limit the use of enhancement factors to those which existed prior to the original
sentencing.

        In this case, commission of the offenses for which Defendant was being sentenced were not
used to show that Defendant had a previous history of unwillingness to comply with the conditions
of a sentence involving release into the community. Since the statute allows for an increase in the
length of the sentence upon revocation of community corrections sentencing, and the statute does
not specifically limit consideration to the enhancement factors that existed at the time of the original
sentence, we conclude that conduct of the Defendant while serving a community corrections
sentence can be used to establish the applicability of enhancement factor (8).

       The Defendant does not challenge the sentences of confinement, but does challenge the
enhanced lengths of the sentences. We conclude that the trial court followed the principles of the
Sentencing Reform Act of 1989 and that the lengths of the sentences imposed were appropriate.

        In consideration of the foregoing and the record as a whole, we affirm the judgments of the
trial court.



                                               ___________________________________
                                               ROBERT W. WEDEMEYER, JUDGE




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