            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT JACKSON

                            DECEMBER 1998 SESSION
                                                                 FILED
                                                                   March 30, 1999

                                                                 Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk

STATE OF TENNESSEE,                  *       C.C.A. # 02C01-9804-CC-00115

             Appellee,               *       GIBSON COUNTY

VS.                                  *       Honorable Dick Jerman, Jr., Judge

COURTNEY PRICE, a.k.a.               *       (Two counts of sale of less than .5 gram
                                             cocaine)
COURTNEY ROBERTSON,                  *

             Appellant.              *




For Appellant:                               For Appellee:

J. Diane Stoots                              John Knox Walkup
Assistant District Public Defender           Attorney General & Reporter
107 South Court Square
Trenton, TN 38382                            Elizabeth T. Ryan
                                             Assistant Attorney General
                                             Criminal Justice Division
                                             425 Fifth Avenue North
                                             Nashville, TN 37243-0493

                                             Clayburn Peeples
                                             District Attorney General
                                             110 College Street, Suite 200
                                             Trenton, TN 38382




OPINION FILED: _____________________




AFFIRMED AS MODIFIED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

             The defendant, Courtney Price, a.k.a. Courtney Robertson, pled guilty

to two counts of the illegal sale of a controlled substance. He appeals his five-year

sentence to TDOC, claiming the trial court made no findings of fact to support the

enhanced sentence. We affirm the judgment but modify the sentence to four years.



             The defendant entered his guilty pleas in 1994. The trial court

originally imposed Range I, concurrent, four-year terms to be served on community

corrections. Later, however, the trial court revoked the community corrections

sentence and ordered the defendant to serve a six-year term in TDOC. The

defendant appealed, arguing that while the revocation was appropriate, the trial

court did not provide any reasons for increasing the sentence from four to six years.

This court concluded that the trial court "summarily sentenced the appellant to six

years, without indicating ... any legal basis for the increased sentence" and

remanded for a new sentencing hearing conducted in conformity with the 1989

Sentencing Reform Act. State v. Courtney Price, a.k.a. Courtney Robertson, No.

02C01-9606-CC-00203, slip op. at 3 (Tenn. Crim. App., at Jackson, July 16, 1997).



             A new sentencing hearing was held on February 17, 1998. At that

time, the defendant was on parole. Defense counsel advised the trial court that the

defendant "did not wish to pursue this appeal any further." The trial court ruled,

however, that "I don't think you can waive it once you've appealed it." Although a

presentence report had not been requested, the trial court concluded that one was

not necessary. At that point, Marcus Jones, an officer with the Corrections

Management Corporation, was called as a witness for the state. Jones testified that

he sought the revocation because the defendant had not maintained employment

and had failed drug screening tests.


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              The trial court imposed sentence as follows:

              As I understand the law ... the Court has got the right to
              resentence you to any reasonable sentence including
              and up to incarceration up to the maximum amount of the
              range which is six years. For whatever reason the Court
              of Criminal Appeals did not think a six year sentence was
              appropriate so I'm going to reduce that to five years. The
              thing they didn't seem to like was the reasons that I did
              not give for resentencing you and increasing the amount
              of time that I gave you. It should have been fairly
              obvious to them. What I think they're trying to do, they're
              trying to say that you've got to use these enhancement
              and mitigating factors and I'm not sure that's what the law
              says. They need to reread the law when they look at this
              again. The law says that you can do it for any reason if
              they don't comply with the terms of the community
              corrections program. Mr. Price, I gave you two terms that
              you violated. One was to get a job, which you didn't do,
              and the other was to not use dope, which you did, and
              that's the reason that I increased the sentence. That's
              the reason that I took you from the program. I do not
              understand why the Court of Criminal Appeals couldn't
              understand it. It seemed fairly obvious, but for, the
              record, that's why I'm doing it. This doesn't have
              anything to do with enhancing and mitigating factors set
              out in 40-35-114. They may be trying to say that those
              are the only way you can enhance. That's not what the
              law says. The law is very plain and if that's what they
              think the law says they need to reread the law.
                             I sentence you to serve five years in the
              State Penitentiary.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption 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). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

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the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103. The community corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant

meets the minimum requirements of the Community Corrections Act of 1985,

however, does not mean that he is entitled to be sentenced under the Act as a

matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).

The following offenders are eligible for community corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

              (3) Persons who are convicted of nonviolent felony
              offenses;

              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of

                                           4
             committing violent offenses; and

             (7) Persons who are sentenced to incarceration or on
             escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



             Once a defendant violates the terms of his community corrections

sentence, the trial court may revoke the sentence and impose a new sentence:

             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.


Tenn. Code Ann. § 40-36-106(e)(3).



             Courts of this state have consistently held that when a trial judge

imposes a sentence which exceeds the length of the initial sentence, the trial court

must conduct a sentencing hearing pursuant to the Tennessee Criminal Sentencing

Reform Act of 1989. See, e.g., State v. Patty, 922 S.W.2d 102 (Tenn. 1995) (the

supreme court applied the 1989 Act to review an increased sentence after

revocation of community corrections); State v. Cooper, 977 S.W.2d 130 (Tenn.

Crim. App. 1998); State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996);

State v. Danny Walker, No. 02C01-9706-CC-00218 (Tenn. Crim. App., at Jackson,

Apr. 22, 1998); State v. James Dantes, No. 02C01-9705-CC-00184 (Tenn. Crim.

App., at Jackson, Dec. 15, 1997); State v. Robert Moore, No. 01C01-9608-CC-

00335 (Tenn. Crim. App., at Nashville, Sept. 30, 1997); State v. Twika Teague, No.

03C01-9601-CC-00027 (Tenn. Crim. App., at Knoxville, May 19, 1997). In Ervin, the

late Judge Joe B. Jones explained that the "Tennessee Criminal Sentencing Reform

                                          5
Act of 1989 and the Community Corrections Act of 1985 are in pari materia." 939

S.W.2d at 583 (citing State v. Taylor, 744 S.W.2d 25 919, 920 (Tenn. Crim. App.

1987)). If, therefore, the trial court chooses to increase the term of the sentence

after revoking a community corrections sentence, a sentencing hearing must be

conducted in accordance with the mandates of the 1989 Sentencing Reform Act.

See Tenn. Code Ann. §§ 40-35-209(a) and -210(a) through (e). Before the trial

court increases the sentence, it must consider the application of the enhancement

factors enumerated in Tenn. Code Ann. § 40-35-114. Id. The provision of the

Community Corrections Act allowing for an increased sentence "should not be used

by the trial courts for the sole and exclusive purpose of punishing an accused for

violating provisions of a community corrections sentence." Ervin, 939 S.W.2d at

583.



              Here, the record demonstrates the trial court erred by increasing the

sentence because the defendant violated the terms of his community corrections

contract. That is not a lawful basis for increasing the sentence. In consequence,

our review of this case must be de novo without the presumption of correctness.

Ashby, 823 S.W.2d at 169.



             To summarize, the defendant pled guilty to two Class C felonies. A

Range I sentence may be from three to six years. Tenn. Code Ann. § 40-35-

112(a)(3). The trial court originally imposed four-year terms. The defendant did not

appeal. The record does not contain a presentence report. There was no proof

offered by the state at the sentencing hearing of the existence of any enhancement

factors. Because the record does not include any basis for the increase of the

sentence from four to five years other than that the defendant violated the terms of

his community corrections contract, the sentence for each conviction must be


                                           6
modified from five years to four years.



             The judgment of the trial court is so modified.



                                          __________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



________________________________
Thomas T. W oodall, Judge



________________________________
John Everett W illiams, Judge




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