                                                                                                 12/10/2018
                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                  September 19, 2018 Session Heard at Chattanooga1

        STATE OF TENNESSEE v. JONATHAN DAVID PATTERSON

               Appeal by Permission from the Court of Criminal Appeals
                         Criminal Court for Putnam County
                 Nos. 15-CR-730, 15-CR-731, 15-CR-672, 15-CR-821
                             David A. Patterson, Judge
                       ___________________________________

                              No. M2016-01716-SC-R11-CD
                         ___________________________________



We granted this appeal to determine what showing, if any, a defendant must make to
prevail on a motion for reduction of sentence under Rule 35 of the Tennessee Rules of
Criminal Procedure, where the defendant pleaded guilty without an agreement as to
sentencing, pursuant to Tennessee Rule of Criminal Procedure 11(c)(1)(B). The Court of
Criminal Appeals held that a defendant must present post-sentencing information or
developments warranting a reduction of sentence to prevail on a Rule 35 motion. We
disagree and limit this standard to Rule 35 motions seeking reduction of specific
sentences imposed in exchange for guilty pleas, pursuant to Tennessee Rule of Criminal
Procedure 11(c)(1)(C). Accordingly, we reverse the judgment of the Court of Criminal
Appeals and reinstate the trial court’s judgment granting the defendant’s Rule 35 motion
and reducing his aggregate sentence.


   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
            Appeals Reversed; Judgment of the Trial Court Reinstated.


CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS,
C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.



       1
          Oral argument was heard in this case on the campus of Chattanooga State Community College
in Chattanooga, Tennessee, as part of the S.C.A.L.E.S. (Supreme Court Advancing Legal Education for
Students) project.
Seth Clayton Crabtree, Cookeville, Tennessee, for the appellant, Jonathan David
Patterson.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Alexander C. Vey, Assistant Attorney General; Bryant C. Dunaway, District
Attorney General; Bret Gunn, Assistant District Attorney General, for the appellee, State
of Tennessee.


                                                OPINION

                             I. Factual and Procedural Background

       The relevant facts are not disputed. In July 2015, the defendant, Jonathan David
Patterson, broke into several cars and a building in Putnam County. He stole two
vehicles and also stole property from inside the vehicles and the building. When the
police apprehended the defendant with some of the stolen property in his possession, he
led them to more of the stolen property and to several locations where the crimes were
committed. He also made statements to the police implicating himself in the crimes.

        Thereafter, the Putnam County Grand Jury returned four indictments charging the
defendant with a total of forty-two offenses.2 On May 10, 2016, the defendant pleaded
guilty to twenty of the charged offenses, including two counts of theft over $10,000, both
Class C felonies;3 one count of theft over $1,000, and one count of burglary of a building
other than a habitation, both Class D felonies;4 and sixteen counts of automobile



        2
          The indictments referenced four case numbers. The indictment in case number 2015-CR-730
charged two offenses. The indictment in case number 2015-CR-731 charged thirty-seven offenses. The
indictment in case number 2015-CR-821 charged two offenses. The indictment in case number 2015-CR-
672 charged one offense.

        3
          See Tenn. Code Ann. § 39-14-103 (2018) (defining theft of property); Tenn. Code Ann. § 39-
14-105(a)(4) (2012 to 2016) (stating that theft over $10,000 is a Class C felony). Unless specifically
indicated by the date noted, citations are to the current version of the relevant statutes because no material
differences exist between the current statutes and those in effect when the defendant committed these
offenses.

        4
           See Tenn. Code Ann. § 39-14-103 (defining theft of property); Tenn. Code Ann. § 39-14-
105(a)(3) (2012 to 2016) (stating that theft over $1,000 but less than $10,000 is a Class D felony); Tenn.
Code Ann. § 39-14-402(a)(1), (c) (2018) (defining burglary of a building other than a habitation and
stating that it is a Class D felony).

                                                    -2-
burglary, all Class E felonies.5 The remaining twenty-two counts, many of them
misdemeanors, were dismissed. The guilty pleas were entered pursuant to Tennessee
Rule of Criminal Procedure 11(c)(1)(B), frequently referred to as “open pleas,” meaning
that the plea did not include any agreement on the length and manner of service of the
sentences.6

       At the July 19, 2016 sentencing hearing, the State introduced a presentence report
and certified copies of judgments showing the defendant’s nine prior felony convictions.
Five of the defendant’s prior felony convictions—a conviction for theft of property
between $1,000 and $10,000, three forgery convictions, and a conviction for passing a
forged instrument—were based on conduct that occurred in 2007. The remaining four
prior felony convictions—burglary, two convictions of theft of property over $1,000, and
aggravated burglary—were based on conduct that occurred in 2010. The presentence
report also reflected a number of misdemeanor convictions and multiple probation
revocations. The State offered no additional evidence.

        The defendant’s sister testified on his behalf. She said that the defendant had a
drug problem, had been using drugs when he committed these crimes, and had “made bad
decisions.” She asked the trial court to exercise leniency in sentencing. She emphasized
that, although the defendant had committed crimes in the past, the defendant had never
hurt anyone, and she declared that he “would never hurt anyone.” She believed that if the
trial court granted the defendant “leniency,” he would “make a change and move
forward.”

      The thirty-four-year-old defendant exercised his right of allocution.7 The
defendant apologized to the victims and to his own family for his “acts of stupidity.” He
admitted being “on drugs” and expressed his deep regret for the “very irresponsible

        5
           See Tenn. Code Ann. § 39-14-402(a)(4), (d) (defining burglary of an automobile and classifying
it as a Class E felony).
        6
            Tennessee Rule of Criminal Procedure 11(c)(1)(B) provides in relevant part:

                If the defendant pleads guilty . . . to a charged offense . . . the plea agreement
        may specify that the district attorney general will . . . recommend, or agree not to oppose
        the defendant’s request for, a particular sentence, with the understanding that such
        recommendation or request is not binding on the court . . . .
        7
          See Tenn. Code Ann. § 40-35-210(b)(7) (2014 & Supp. 2018) (“To determine the specific
sentence and the appropriate combination of sentencing alternatives that shall be imposed on the
defendant, the court shall consider . . . [a]ny statement the defendant wishes to make . . . about
sentencing . . . .”).



                                                    -3-
decisions” he had made. The defendant emphasized that he could not change the past but
again apologized for his conduct and expressed a desire to “accept responsibility for [his]
actions, repay [his] debt to society, and make sure this never happens again.” The
defendant explained that he had pleaded guilty “out of respect for the victims, taxpayers
and this [trial] court.” He told the trial court that he would “appreciate any leniency
possible in sentencing.” The defendant offered no further proof.

        As for the appropriate sentences, the State and the defendant agreed that the
defendant should be classified as a Career Offender on the two Class D felonies and on
the sixteen Class E felonies to which he had pleaded guilty.8 They also agreed that his
classification as a Career Offender mandated the maximum Range III sentence of twelve
years for each Class D felony and six years for each Class E felony with sixty percent
release eligibility applicable to these felonies.9 As for the two Class C felonies, the State
and the defendant agreed that the defendant should be classified as a Range III Persistent
Offender based on his prior convictions and that this classification carried a ten-to-
fifteen-year sentencing range with forty-five percent release eligibility.10 Concerning the
appropriate sentence within that applicable sentencing range, the State asked the trial
court to apply two enhancement factors, specifically: (1) the defendant’s previous history
of criminal convictions or criminal behavior, and (2) the defendant’s failure to comply
with the conditions of a sentence involving release into the community.11 The State also


        8
           See Tenn. Code Ann. § 40-35-108(a)(3) (2014) (“A career offender is a defendant who has
received . . . [a]t least six (6) prior felony convictions of any classification if the defendant’s conviction
offense is a Class D or E felony.”).

        9
           See Tenn. Code Ann. § 40-35-108(c) (“A defendant who is found by the court beyond a
reasonable doubt to be a career offender shall receive the maximum sentence within the applicable Range
III.”); Tenn. Code Ann. § 40-35-112(c)(4)–(5) (2014) (stating the maximum Range III sentence for a
Class D felony is twelve years and for a Class E felony is six years); Tenn. Code Ann. § 40-35-501(f)
(2014 & Supp. 2018) (stating that “[r]elease eligibility for each defendant sentenced as a career offender
shall occur after service of sixty percent (60%) of the actual sentence imposed less sentence credits earned
and retained by the defendant”).

        10
           See Tenn. Code Ann. § 40-35-107(a)(1) (2014) (stating that a defendant with “[a]ny
combination of five (5) or more prior felony convictions within the conviction class or higher or within
the next two (2) lower felony classes, where applicable” is classified as a Persistent Offender); Tenn.
Code Ann. § 40-35-107(c) (stating that a Persistent Offender “shall receive a sentence within Range III”);
Tenn. Code Ann. § 40-35-501(e) (stating that “[r]elease eligibility for each defendant sentenced as a
Range III persistent offender shall occur after service of forty-five percent (45%) of the actual sentence
imposed less sentence credits earned and retained by the defendant”).

        11
           Tenn. Code Ann. § 40-35-114(1) (2014 & Supp. 2018) (“The defendant has a previous history
of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate
                                                  -4-
asked the trial court to order consecutive service of the sentences, pointing to the
defendant’s “extensive” record of criminal activity. The State acknowledged, however,
that the defendant had no prior convictions of violent crimes, sexual offenses, or offenses
against children. The State also agreed that the defendant had admitted his involvement
in the crimes, cooperated with the police, helped recover much of the property taken so
that it could be restored to the victims, and spared the State the expense of trials by
pleading guilty to multiple offenses, even though he had no agreement as to sentencing.
The State refused to “recommend a specific number to the court” because the defendant’s
record was “so bad” and the felonies he committed were “so numerous.”

       The defendant agreed that he had numerous prior convictions but also emphasized
that none were for “violent crimes.” The defendant urged the trial court to consider
favorably his cooperation with and assistance to the police and the fact that it had resulted
in almost all of the stolen property being restored to the victims. He pointed out that not
a single victim had appeared to testify at the sentencing hearing and that none had
submitted an impact statement to the court. The defendant asked the trial court to
consider three mitigating factors, specifically: (1) that he had not threatened or caused
any serious bodily injury, (2) that he had assisted the authorities, and (3) that he had
expressed remorse for his actions.12

        As required by the defendant’s classification as a Career Offender, the trial court
imposed six-year sentences for each of the Class E felonies and twelve-year sentences for
each of the Class D felonies, all with sixty percent release eligibility. As for the Class C
felonies, the trial court considered the two enhancement factors the State identified,
attributing “great weight” to the defendant’s history of criminal convictions. It also
considered the mitigating factors the defendant identified. Ultimately, the trial court
imposed a thirteen-year sentence with forty-five percent release eligibility for each Class
C felony.

       As to the manner of service of the sentences, the trial court agreed with the State
that the defendant’s extensive record of criminal activity warranted consecutive service
of at least some of the sentences. The trial court ordered the sentences in each felony

range[.]”); Tenn. Code Ann. § 40-35-114(8) (“The defendant, before trial or sentencing, failed to comply
with the conditions of a sentence involving release into the community[.]”).
        12
           See Tenn. Code. Ann. § 40-35-113(1) (2014) (“The defendant’s criminal conduct neither
caused nor threatened serious bodily injury[.]”); Tenn. Code Ann. § 40-35-113(9) (“The defendant
assisted the authorities in uncovering offenses committed by other persons or in detecting or
apprehending other persons who had committed the offenses[.]”); Tenn. Code Ann. § 40-35-113(13)
(“Any other factor consistent with the purposes of this chapter.”).



                                                 -5-
classification served concurrently with the other convictions of the same classification.
The trial court ordered consecutive service of the sentences imposed for each felony
classification—thirteen, twelve, and six—for an aggregate sentence of thirty-one years.

        The defendant timely filed a notice of appeal. See Tenn. R. App. P. 3(b)(2)
(stating that a defendant who pleads guilty may seek review of the sentence if there was
no plea agreement concerning the sentence); Tenn. R. App. P. 4(a) (providing that a
notice of appeal must be filed within thirty days “after the date of entry of the judgment
appealed from”). Later, the defendant timely filed in the trial court a motion for
reduction of sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure.
Tenn. R. Crim. P. 35 (affording the defendant 120 days after imposition of sentence to
file a motion for reduction of sentence).

       The defendant alleged in his Rule 35 motion that his aggregate sentence was
“excessive in light of the facts present.” He asked the trial court to order concurrent
service of all sentences and to provide “any other relief” the trial court deemed
appropriate. The State opposed the Rule 35 motion and asked the trial court to deny it
without a hearing based on the defendant’s failure to present “post-sentencing
information or developments” warranting a reduction of the sentences initially imposed.

       The trial court held a hearing, but the defense offered no proof in support of the
motion. The trial court described Rule 35 as giving a sentencing court “the authority and
responsibility to reconsider a prior ruling and to modify the ruling if the court believes
that the modification is just and proper.” The trial court granted the motion, finding the
aggregate sentence initially imposed to be excessive. The trial court reduced the
aggregate sentence by ordering the thirteen-year concurrent sentences with forty-five
percent release eligibility served concurrently with the twelve-year concurrent sentences
with sixty-percent release eligibility but ordered consecutive service of the six-year
concurrent sentences with sixty-percent release eligibility, creating what the trial court
described as an aggregate sentence of eighteen rather than thirty-one years. The trial
court described the sentence as eighteen rather than nineteen years because the thirteen-
year concurrent sentences have a forty-five percent release eligibility, while the twelve-
year concurrent sentences have a sixty-percent release eligibility.13 The trial court

      13
           The trial court explained its ruling as follows:

              The length of sentence that [the defendant] is presently to serve is 16.65 years.
      That’s the effective sentence. A thirty[-]one year sentence, sixty percent, sixty percent
      and forty[-]five percent, as I said. When we add those together, it’s 16.65. The court
      believes that is excessive. And the court is going to change its ruling and its judgment to
      show that the defendant will receive an eighteen[-]year sentence and those will be at sixty
      percent. And how the court is going to come to that decision is to run the D felony,
      which is the burglary, concurrent with the C felonies. The two C felonies are running
      concurrently with each other and the D felony will run concurrent with it. The [sixteen]
                                                  -6-
entered amended judgments reflecting its ruling, and the State appealed the trial court’s
decision granting the Rule 35 motion. See Tenn. R. Crim. P. 35(d).

        The Court of Criminal Appeals consolidated the defendant’s appeal as of right
with the State’s appeal on the Rule 35 motion. State v. Patterson, No. M2016-01716-
CCA-R3-CD, 2017 WL 4342212 (Tenn. Crim. App. Sept. 29, 2017), perm. app. granted
(Tenn. Feb. 14, 2018). The Court of Criminal Appeals agreed with the State that to
obtain relief on a Rule 35 motion a defendant must present proof of “a post-sentencing
change in circumstances that would justify the reduction or modification of a sentence.”
Id. at *7. The intermediate appellate court concluded that by failing to require the
defendant to satisfy this showing, the trial court had relied on an incorrect legal standard
and abused its discretion by granting the Rule 35 motion. Accordingly, the Court of
Criminal Appeals reversed the trial court’s decision on the Rule 35 motion, reinstated the
initial aggregate thirty-one-year sentence, and rejected the arguments that the defendant
raised in his appeal as of right. Id. at *9. We subsequently granted the defendant’s
application for permission to appeal. Tenn. R. App. P. 11.

                                     II. Standard of Review

       The standard of review in an appeal from a trial court’s decision on a Rule 35
motion is whether the trial court abused its discretion. State v. Irick, 861 S.W.2d 375,
376 (Tenn. Crim. App. 1993). “An abuse of discretion occurs when the trial court applies
incorrect legal standards, reaches an illogical conclusion, bases its decision on a clearly
erroneous assessment of the evidence, or employs reasoning that causes an injustice to
the complaining party.” West v. Schofield, 460 S.W.3d 113, 120 (Tenn. 2015) (citing
State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). Here, the Court of Criminal Appeals
concluded that the trial court abused its discretion by applying an incorrect legal standard.
Thus, the issue in this appeal—whether a defendant must present evidence of post-
sentencing information or developments to prevail on a Rule 35 motion to reduce a
sentence imposed after a defendant pleads guilty without an agreement as to sentencing—
is a question of law to which de novo review applies. State v. Brown, 479 S.W.3d 200,
205 (Tenn. 2015) (stating that determining the scope and proper interpretation of a rule of

       auto burglaries, which are the six[-]year sentences at sixty percent will run consecutively
       then. So we have a sixty percent sentence with all of them and what we have then is an
       effective twelve[-]year sentence at sixty-percent. Because the thirteen[-]year sentence at
       forty[-]five is swallowed up by the twelve[-]year sentence at sixty and then the auto
       burglaries a six[-]year sentence is again a sixty percent sentence and so we have an
       eighteen[-]year sentence, all of those years to be run at sixty[-] percent for an effective
       10.8 prior to release eligibility. That is a reduction of almost six years, 5.85 years,
       reduction of thirteen years from the thirty[-]one, but effectively a reduction of almost six
       years . . . .



                                                  -7-
criminal procedure is a question of law); State v. Johnson, 342 S.W.3d 468, 471 (Tenn.
2011) (same). As a result, we afford no deference or presumption of correctness to the
decisions of the courts below on this legal question. Johnson, 342 S.W.3d at 471 (citing
State v. Ferrante, 269 S.W.3d 908, 911 (Tenn. 2008)).

                                             III. Analysis

       Rule 35 affords a defendant the right to file a motion for reduction of sentence
with the trial court “within 120 days after the date the sentence is imposed or probation is
revoked.” Tenn. R. Crim. P. 35(a).14 This 120-day time limit begins to run immediately
upon imposition of sentence and cannot be extended or tolled. Id. The filing of a notice
of appeal does not divest a trial court of jurisdiction to adjudicate a subsequent timely
filed Rule 35 motion. State v. Bilbrey, 816 S.W.2d 71, 75 (Tenn. Crim App. 1991); State
v. Biggs, 769 S.W.2d 506, 509 (Tenn. Crim. App. 1988).

       The trial court may deny a Rule 35 motion “without a hearing.” Tenn. R. Crim. P.
35(c). When a trial court denies a Rule 35 motion, the defendant may appeal “but shall
not be entitled to release on bond unless already under bond.” Id. at 35(d). When a trial
court grants a Rule 35 motion, the trial court may reduce the defendant’s sentence “only
to one the court could have originally imposed.” Id. at 35(b).15 The State may appeal
from a trial court’s decision granting a Rule 35 motion. Id. at 35(d).

        “The intent of Rule 35 is to allow modification only in circumstances where an
alteration of the sentence may be proper in the interests of justice.” Tenn. R. Crim. P. 35
advisory commission cmts.; State v. Hodges, 815 S.W.2d 151, 154 (Tenn. 1991). Rule
35 does not provide any other standard to guide or limit the discretion it affords trial
courts. Additionally, Rule 35 does not explicitly require a defendant to present any
evidence or make any showing to obtain relief. Rule 35 is patterned on the pre-1987
version of Federal Rule of Criminal Procedure 35,16 which was viewed as affording the

        14
           Rule 35 provides no authority for a trial court to reduce a sentence in the absence of a motion
by the defendant. State v. Hargrove, No. 01S01-9203-CC-00035, 1993 WL 300759, at *2 (Tenn. 1993).

        15
         Rule 35 does not alter the statutory authority trial courts have to modify sentences to the jail or
workhouse. Tenn. R. Crim. P. 35 advisory commission cmts.
        16
            See Hodges, 815 S.W.2d at 158 (Daughtrey, J., dissenting); see also State v. Phelps, 329
S.W.3d 436, 445 (Tenn. 2010) (stating that it is appropriate to consider federal precedent when
interpreting Tennessee rules of criminal procedure patterned upon federal rules). The current version of
Federal Rule of Criminal Procedure 35 dealing with reduction of sentences differs greatly from our own
Rule 35. Federal Rule 35 allows a trial court to reduce a sentence but only upon a motion of the
government. If the government’s motion is filed within one year of sentencing, the court may reduce the
sentence if the defendant “provided substantial assistance in investigating or prosecuting another person.”
                                                   -8-
defendant a second opportunity to appear before the sentencing judge and make
“essentially a plea for leniency.”17 Under this pre-1987 version of Federal Rule of
Criminal Procedure 35, a district court had wide discretion to reduce a sentence if, upon
reflection, the district court concluded that “the sentence originally imposed was, for any
reason, unduly severe.”18

       The first Tennessee Supreme Court decision to interpret Rule 35 endorsed the
federal view that trial courts have broad discretion under Rule 35 to reduce sentences,
including sentences imposed on guilty pleas. Hodges, 815 S.W.2d at 154-55. Hodges
involved a consolidated appeal of two separate cases in which the defendants pleaded
guilty in exchange for the State agreeing to recommend specific sentences to the trial
court. Id. at 155. The trial judges accepted the guilty pleas, but at subsequent sentencing
hearings, they imposed sentences less than those recommended by the State. Id. The
State appealed, arguing that the trial courts lacked authority to reduce the sentences
because the defendants had pleaded guilty in exchange for specific sentences, pursuant to
Tennessee Rule of Criminal Procedure 11(c)(1)(C).19 The Hodges Court rejected the
State’s assertion that the defendants had pleaded guilty in exchange for specific sentences
and stated that the record showed only that the prosecutor “made a recommendation to
the court in each case” as to sentencing. Id. at 155. However, the Hodges Court also
broadly declared that it made “little or no difference whether the plea agreement”
included a specific sentence because “[t]here is absolutely no connection between the
plea bargaining procedures prescribed in Tenn. R. Crim. P. 11 and the correction or

If the government’s motion is filed more than one year after sentencing, then the court may only reduce
the sentence

                  if the defendant’s substantial assistance involved: (A) information not known to
        the defendant until one year or more after sentencing; (B) information provided by the
        defendant to the government within one year of sentencing, but which did not become
        useful to the government until more than one year after sentencing; or (C) information the
        usefulness of which could not reasonably have been anticipated by the defendant until
        more than one year after sentencing and which was promptly provided to the government
        after its usefulness was reasonably apparent to the defendant.

Fed. R. Crim. P. 35(b).

        17
           See 3 Fed. Prac. & Proc. Crim. § 617 & n.25 (4th ed. September 2018 Update) (quoting cases
discussing the pre-1987 version of Federal Rule of Criminal Procedure 35).

        18
            See 3 Fed. Prac. & Proc. Crim. § 617 & nn.26–27 (4th ed. September 2018 Update) (citing
cases discussing the discretion federal district courts possessed under the pre-1987 version of Federal
Rule of Criminal Procedure 35 and discussing various federal court decisions on such motions).
        19
           At the time of Hodges, these provisions were contained in Tennessee Rule of Criminal
Procedure 11(e)(1)(C).
                                              -9-
reduction of sentence provisions of Tenn. R. Crim. P. 35.” Id. at 154. In defining the
parameters of a trial court’s authority under Rule 35, the Hodges Court stated:

       Occasions inevitably will occur when a conscientious judge, after reflection
       or upon receipt of new probationary reports or other information, will feel
       that he has been too harsh or has failed to give weight to mitigating factors
       which properly should have been taken into account. In such cases the
       interest of justice and sound judicial administration will be served by
       permitting the trial judge to reduce the sentence within a reasonable time.

Id. at 154 (quoting Dist. Attorney for N. Dist. v. Superior Court, 172 N.E.2d 245, 250–51
(Mass. 1961)).

       One justice dissented in Hodges from the majority’s broad statement that
Tennessee Rules of Criminal Procedure 11 and 35 are not connected and its holding that
Rule 35 gives the trial court “unfettered discretion to modify a sentence” entered pursuant
to a plea agreement. Id. at 155 (Daughtrey, J., dissenting). Emphasizing that Rule 35 is
patterned on the pre-1987 version of Federal Rule of Criminal Procedure 35, Hodges, 815
S.W.2d at 158 (Daughtrey, J., dissenting), the dissenting justice looked to federal
precedent for guidance on the question. Id. The dissenting justice agreed with the
approach adopted by the Court of Appeals for the Ninth Circuit in United States v.
Semler, 883 F.2d 832 (9th Cir. 1989). Semler interpreted the pre-1987 version of Federal
Rule of Criminal Procedure 35 as permitting modification of specific sentences imposed
in exchange for guilty pleas only in “those exceptional cases where the sentence is plainly
unjust or unfair in light of information the district court received after sentencing the
defendant.” Hodges, 815 S.W.2d at 159 (Daughtrey, J., dissenting) (quoting Semler, 883
F.2d at 834-35). The dissenting justice described the Semler approach as harmonizing
Rules 11 and 35 by allowing “the trial court to protect against unfairness to the defendant
in the exceptional case, but also giv[ing] the [S]tate the benefit of its bargain in the
routine case.” Id.

       Two years after Hodges, this Court decided State v. Hargrove, 1993 WL 300759,
Nos. 01S01-9203-CC-00035, 01S01-9203-CC-00036, 03S01-9203-CC-00026 (Tenn.
Aug. 9, 1993).20 Hargrove involved three cases consolidated for appeal, and this Court
again divided four-to-one, with the justice who dissented in Hodges authoring Hargrove
and the justice who authored Hodges dissenting in Hargrove. The issue in Hargrove
concerned “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. The
State suggested that in sua sponte reducing the sentences in Hargrove the intermediate
       20
          The Hargrove Court designated its opinion “For Publication,” but it was not published. The
Appellate Court Clerk recently brought this omission to the attention of the Office of the Attorney
General and Reporter and subsequently received assurances that the omission would be rectified.
                                                - 10 -
appellate court may have relied on Hodges. Id. at *2. The Hargrove Court then made
“several pertinent observations concerning the Hodges decision.” Id. First, it pointed
out that Rule 35 applies only to trial courts. Id. Next, it emphasized that Rule 35 does
not contemplate sua sponte reduction of sentences, even by trial courts. Id. Finally, and
most importantly for purposes of this appeal, it stated that Rule 35 is limited in scope “in
those cases in which the defendant has pleaded guilty by agreement with the [S]tate, in
exchange for a specific sentence.” Id. The dissenting justice disagreed vigorously with
this final observation and viewed it as inconsistent with and a retreat from the broad
holding of Hodges. Hargrove, 1993 WL 300759, at *4 (O’Brien, J., dissenting).

        Like the dissenting justice, the Court of Criminal Appeals soon also described
Hargrove as a retreat from the broad language of Hodges concerning the relationship
between Rules 11 and 35. State v. McDonald, 893 S.W.2d 945, 947 (Tenn. Crim. App.
1994) (observing that, in Hargrove, “our Supreme Court retreated from its language in
Hodges”). In McDonald, the defendant pleaded guilty in exchange for a specific
sentence. Id. at 946. Thereafter, the defendant timely filed a Rule 35 motion seeking
reduction of the specific sentence. Id. The trial court denied the Rule 35 motion, citing
the plea agreement, and the defendant appealed. Id. The State argued that the defendant
had waived his right to file a Rule 35 motion by pleading guilty in exchange for a specific
sentence. Id. at 947. The Court of Criminal Appeals recognized that Hargrove had
drawn a distinction “between the type of plea agreement entered into and the application
of Rule 35(b)” and had limited the scope of Rule 35 “in those cases in which the
defendant ha[d] pleaded guilty by agreement with the [S]tate, in exchange for a specific
sentence.” Id. (quoting Hargrove, 1993 WL 300759 at *2). But the Court of Criminal
Appeals rejected the State’s argument that pleading guilty in exchange for a specific
sentence amounts to a complete waiver of the right to file a Rule 35 motion. Id. Instead,
relying on the dissenting opinion in Hodges, the intermediate appellate court in
McDonald concluded that modification of a specific sentence under Rule 35 is possible,
but only in exceptional circumstances, “[f]or example, . . . where unforeseen, post-
sentencing developments would permit modification of a sentence in the interest of
justice.” Id. (footnote omitted). The Court of Criminal Appeals affirmed the trial court’s
denial of the Rule 35 motion in McDonald because the defendant had “failed to show that
post-sentencing information or developments had arisen to warrant a reduction of his
sentence in the interest of justice.” Id. at 947–48.

       Unfortunately, the standard derived from the dissenting opinion in Hodges and
applied by the Court of Criminal Appeals in McDonald has not been limited, as it should
have been, to Rule 35 motions seeking reduction of specific sentences imposed in
exchange for guilty pleas. Rather, it has been incorrectly recited, both by this Court and
by the Court of Criminal Appeals, as the standard required to prevail on any Rule 35
motion. See State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (stating erroneously in
dicta that the McDonald standard applies to all Rule 35 motions and requires the trial
                                           - 11 -
court to consider whether post-sentencing information or developments have arisen that
warrant an alteration of the sentence in the interest of justice); State v. Click, No. E2015-
01769-CCA-R3-CD, 2017 WL 1189750, at *23 (Tenn. Crim. App. Mar. 30, 2017), perm.
app. denied (Tenn. Aug. 16, 2017) (affirming the trial court’s denial of a Rule 35 motion
seeking reduction of sentence imposed after a jury trial because the record failed to
establish that the defendant presented “the trial court with evidence of a change in
circumstances sufficient to warrant [reduction of his eighty-year] sentence ‘in the
interests of justice’” (quoting State v. Howard, No. W2014-02309-CCA-R3-CD, 2015
WL 8334629, at *3 (Tenn. Crim. App. Dec. 9, 2015)));21 State v. Evans, No. E2015-
01815-CCA-R3-CD, 2016 WL 4582499, at *4–6 (Tenn. Crim. App. Sept. 2, 2016)
(affirming the trial court’s denial of a Rule 35 motion seeking reduction of a sentence
imposed after a jury trial because the defendant failed to show “that post-sentencing
information or developments had arisen that warranted a reduction of his sentence in the
interest of justice”). In a few cases, the Court of Criminal Appeals has correctly limited
the McDonald standard to Rule 35 motions seeking reduction of specific sentences
imposed in exchange for guilty pleas. See, e.g., State v. Sowell, No. M2008-02358-
CCA-R3-CD, 2010 WL 987196, at *3 (Tenn. Crim. App. Mar. 17, 2010) (citing
McDonald and Hargrove and recognizing that relief on a Rule 35 motion seeking
reduction of a specific sentence imposed in exchange for a guilty plea is available only
when “post-sentencing developments would permit modification of [the] sentence in the
interest of justice.” (quoting McDonald, 893 S.W.2d at 947)); State v. Payne, No.
M2006-01662-CCA-R3CD, 2007 WL 92355, at *1 (Tenn. Crim. App. Jan. 11, 2007)
(“When a defendant seeks to modify a sentence entered pursuant to a guilty plea, a
motion should be granted when post-sentencing developments arise that should be
addressed in the interest of justice.” (citing McDonald, 893 S.W.2d at 947)); State v.
Gonsales, No. E2002-02687-CCA-R3-CD, 2003 WL 22697299, at *6 (Tenn. Crim. App.
Nov. 14, 2003) (recognizing that the plea agreement included a specific sentence and was
subject to reduction under Rule 35 only if the defendant satisfied the McDonald
standard). In a few other cases involving Rule 35 motions and pleas without an
agreement as to sentencing, the Court of Criminal Appeals has analyzed the issue
correctly, considering only whether the trial court abused its discretion and not
conditioning the entitlement to relief on satisfaction of the McDonald standard. See, e.g.,
State v. Johnson, No. M2010-01159-CCA-R3-CD, 2011 WL 5551677, at *7 (Tenn.
Crim. App. Nov. 15, 2011); State v. Colbert, No. M2012-00225-CCA-R3-CD, 2012 WL
5543520, at *4 (Tenn. Crim. App. Nov. 9, 2012), perm. app. denied (Tenn. Mar. 5,



       21
          The application for permission to appeal filed in this Court in Click did not raise any issue
about the Court of Criminal Appeals’ application of the McDonald standard to evaluate the Rule 35
motion.



                                                - 12 -
2013); State v. Jennings, No. M2006-02055-CCA-R3-CD, 2007 WL 2600541, at *3
(Tenn. Crim. App. Sept. 11, 2007).

        Because the dicta in Ruiz has contributed significantly to the erroneous extension
of the McDonald standard to all Rule 35 motions, we take this opportunity to clarify the
matter. Where, as here, a defendant pleads guilty without an agreement as to sentencing,
pursuant to Rule 11(c)(1)(B), and later files a Rule 35 motion to reduce the sentence the
trial court imposed for the plea offense, the McDonald standard does not apply. In fact,
Rule 35 does not require the defendant to make any particular showing in support of the
motion and affords the trial court broad discretion to determine whether reduction of the
initial sentence is appropriate in the interest of justice. In these circumstances, Rule 35
functions simply as a second opportunity for a defendant to make a plea for leniency. It
provides the trial court an opportunity to again consider, “after reflection or upon receipt
of new probationary reports or other information,” whether the initial sentence is too
severe for any reason. Hodges, 815 S.W.2d at 154 (emphasis added) (quoting Dist.
Attorney for N. Dist., 172 N.E.2d at 250–51). A defendant in possession of post-
sentencing information or developments warranting a reduction of the initial sentence
may, and certainly should, use it to support the Rule 35 motion. But a defendant is
required to provide such information only if the defendant’s Rule 35 motion seeks
reduction of a specific sentence imposed in exchange for a guilty plea. For Rule 35
motions of this type, the McDonald standard remains applicable and appropriate.22 It
harmonizes Rules 11 and 35 and enables “the trial court to protect against unfairness to
the defendant in the exceptional case, but also gives the [S]tate the benefit of its bargain
in the routine case.” Hodges, 815 S.W.2d at 159 (Daughtrey, J., dissenting) (citing
Semler, 883 F.2d at 834–35).

        The defendant pleaded guilty without an agreement as to sentence, and therefore,
had no obligation to comply with the McDonald standard. The plea did not limit the trial
court’s discretion under Rule 35. The trial court did not apply an incorrect legal standard
or abuse its discretion in any other way when it determined, upon reflection, that the
initial aggregate sentence was excessive and granted the defendant’s Rule 35 motion,
ordering concurrent rather than consecutive service of the thirteen-year and twelve-year
sentences. The trial court’s decision results in an aggregate nineteen-year sentence, even

        22
            Prior Tennessee decisions applying the McDonald standard to Rule 35 motions seeking
reduction of sentences imposed on open plea agreements or other decisions, like Ruiz, stating in dicta that
the McDonald standard applies in such circumstances are overruled. We note, however, that while our
holding herein repudiates the dicta of Ruiz, we have not disturbed its primary holding that defendants
seeking suspension of sentences under Tennessee Code Annotated section 40-35-306(c) must establish
that “post-sentencing information or developments have arisen that warrant an alteration in the interest of
justice.” Ruiz, 204 S.W.3d at 778 (quoting McDonald, 893 S.W.2d at 948). We note as well that the
Court of Criminal Appeals has recently adopted this same standard for an application seeking suspension
of sentence under Tennessee Code Annotated section 40-35-303(e). State v. Lloyd, M2017-01919-CCA-
R3-CD, 2018 WL 5077694, at *8 (Tenn. Crim. App. Oct. 17, 2018).
                                                 - 13 -
though the forty-five percent release eligibility of the thirteen-year sentences is less than
the sixty-percent release eligibility of the twelve-year sentences. The Tennessee
Department of Correction remains responsible for calculating the defendant’s release
eligibility on this aggregate sentence. Tenn. Code Ann. § 40-35-501(r) (2018 Supp.)
(“Notwithstanding any other law to the contrary, the department is responsible for
calculating the sentence expiration date and the release eligibility date of any felony
offender sentenced to the department and any felony offender sentenced to confinement
in a local jail or workhouse for one (1) or more years.”). Therefore we reverse the
judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court
reducing the defendant’s aggregate sentence from thirty-one to nineteen years.23

                                         IV. Conclusion

       For the reasons stated herein, the judgment of the Court of Criminal Appeals is
reversed, and the judgment of the trial court is reinstated. Costs of this appeal are taxed
to the State of Tennessee, for which execution may issue if necessary.



                                                       _________________________________
                                                       CORNELIA A. CLARK, JUSTICE




       23
           Although the defendant filed an appeal as of right challenging his thirty-one-year aggregate
sentence as excessive, he has not challenged the nineteen-year aggregate sentence as excessive. Nor has
the defendant argued in this Court, as he did in the Court of Criminal Appeals, that a comment the
prosecutor made during the sentencing hearing amounted to a breach of the plea agreement.
                                                  - 14 -
