        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 26, 2013

       STATE OF TENNESSEE v. BEAU CLAYTON EPPERSON

                   Appeal from the Circuit Court for Sevier County
                     No. 15662-II      Richard R. Vance, Judge




                 No. E2012-00268-CCA-R3-CD - Filed June 28, 2013




N ORMA M CG EE O GLE, J., concurring.

       I concur in the majority’s conclusion that a trial court may impose both a period of
partial confinement for a misdemeanor domestic assault conviction and a two-year
probationary period. I write separately, however, to explain more fully the reasoning
supporting my conclusion.

       Tennessee Code Annotated section 40-35-303(c) provides as follows:

              (1) If the court determines that a period of probation is
              appropriate, the court shall sentence the defendant to a specific
              sentence but shall suspend the execution of all or part of the
              sentence and place the defendant on supervised or unsupervised
              probation either immediately or after a period of confinement
              for a period of time no less than the minimum sentence allowed
              under the classification and up to and including the statutory
              maximum time for the class of the conviction offense.

                     (2)(A) Except as provided in subdivision (c)(2)(B), if
              probation is to be granted to a defendant convicted of any of the
              misdemeanor offenses set out in subdivision (c)(2)(C), the
              provisions of subdivision (c)(1) shall govern the length of the
              term of probation.

                     (B) Notwithstanding the provisions of subdivision
              (c)(2)(A), the judge may sentence a defendant convicted of any
              of the misdemeanor offenses set out in subdivision (c)(2)(C) to
              a period of probation not to exceed two (2) years, if the judge
              finds that the period of probation is necessary:

                             (i) For the defendant to complete any
                      appropriate treatment program or programs,
                      including, but not limited to, a sanctioned
                      batterer's intervention program, an anger
                      management program or any court-ordered drug
                      or alcohol treatment program;

                             (ii) To make restitution to the victim of the
                      offense;

                              (iii) To otherwise effect a change in the
                      behavior of the defendant, including, but not
                      limited to, imposing any of the conditions set
                      forth in subsection (d); or

                             (iv) To protect and better ensure the safety
                      of the victim or any other member of the victim's
                      family or household, as set out in subsections (m)
                      and (n).

        In my view, subsections -303(c)(1), -303(c)(2)(A), and -303(c)(2)(B) must be read in
conjunction with each other. Tennessee Code Annotated section 40-35-303(c)(1) explains
that for an individual convicted of a felony or misdemeanor and receiving a sentence of ten
years or less, a trial court must set a specific sentence but can suspend the sentence and order
a period of probation. The period of probation can be served immediately or after a period
of confinement, but the length of the probation shall be “no less than the minimum sentence
allowed under the classification and up to and including the statutory maximum time for the
class of the conviction offense.” Tennessee Code Annotated section 40-35-303(c)(2)(A)
provides that the period of probation for a sentence resulting from certain misdemeanor
convictions, such as domestic assault, is governed by -303(c)(1). In other words, for a
defendant convicted of domestic assault, the trial court can order a period of probation of
eleven-months, twenty-nine days, the statutory maximum for an individual convicted of a
Class A misdemeanor, following confinement. However, Tennessee Code Annotated section
40-35-303(c)(2)(B) extends that period of probation from eleven months, twenty-nine days
to two years if the trial court determines that the two-year period is necessary in order to give
the defendant time to complete a treatment program, make restitution to the victim, effect a

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change in the defendant’s behavior, or protect and ensure the safety of the victim.

        In support of his claim that his two-year probation sentence is illegal, the Defendant
relies on State v. Vito Summa, No. 02C01-9411-CR-00254, 1995 WL 764994 (Tenn. Crim.
App. at Jackson, Dec. 28, 1995). In Summa, the defendant was convicted of Class A
misdemeanor assault, and the trial court sentenced him to eleven months, twenty-nine days
with five months and one week to be served in confinement. No. 02C01-9411-CR-00254,
1995 WL 764994, at *1. The trial court also ordered two years of probation following the
defendant’s release from confinement. Id. This court determined that the two-year probation
period was illegal pursuant to Tennessee Code Annotated section 40-35-303(c) (1990), which
stated as follows:

              “If the court determines that a period of probation is appropriate,
              the court shall sentence the defendant to a specific sentence but
              shall suspend the execution of all or part thereof and place the
              defendant on supervised or unsupervised probation either
              immediately or after a period of confinement with the remainder
              of the sentence on probation supervision.”

Id. at *2 (quoting Tenn. Code Ann. § 40-35-303(c) (1990)). This court noted, “There is no
provision for probation to extend to the maximum term provided by law for the offense.’”
Id. at *3 (quoting State v. Steven B. Mangrum, C.C.A. No. 01-C-01-9007CC00176, 1991
WL 20373, at *1 (Tenn. Crim. App. at Nashville, Feb. 21, 1995)). However, our legislature
amended Tennessee Code Annotated section 40-35-303(c) (1990) to provide for the period
of probation after a defendant’s sentence. Therefore, Summa is not dispositive of the instant
case, and I agree with the majority that the Defendant is not entitled to relief on this issue.




                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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