       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs October 6, 2015


               STATE OF TENNESSEE v. SABRINA HOWARD

                 Appeal from the Criminal Court for Shelby County
                    No. 13-01546    James M. Lammey, Judge




             No. W2014-02309-CCA-R3-CD - Filed December 9, 2015
                       _____________________________

Sabrina Howard (“the Defendant”) appeals from the Shelby County Criminal Court’s
denial of her motion to suspend the remainder of her sentence. The Defendant contends
that the trial court abused its discretion by denying the motion without an evidentiary
hearing. Because the record shows that the motion was untimely, we affirm the order of
the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

Ruchee J. Patel, Memphis, Tennessee, for the appellant, Sabrina Howard.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                      OPINION

                                    I. Background

       In April 2013, the Shelby County Grand Jury indicted the Defendant for attempted
second degree murder, employing a firearm during the commission of a dangerous
felony, and two counts of aggravated assault. On November 7, 2013, the Defendant
pleaded guilty, as a Range II multiple offender, to one count of aggravated assault.
Pursuant to a plea agreement, the trial court sentenced the Defendant to six years in the
Department of Correction. The Defendant’s judgment of conviction reflected, as a
special condition, that the Defendant “may PSRS on or after August 7, 2014.”1

        On August 12, 2014, the Defendant filed a pro se Motion for Suspension of
Remainder of Sentence pursuant to Rule 35(b) of the Tennessee Rules of Criminal
Procedure. In her motion, the Defendant stated that the request for the suspension of the
remainder of her sentence was made “[p]ursuant to her negotiated plea agreement[.]”
The Defendant asserted that she was sentenced as a multiple offender, despite having no
prior criminal history. She argued that, had she been sentenced as a standard offender,
she “would have been a prime candidate for alternative sentencing.” Moreover, the
Defendant claimed that her continued incarceration violated “the spirit of the 1989
Sentencing Reform Act” in that the purpose of the Act was to “reduce automatic
incarceration sentences whenever possible.” The Defendant requested that her sentence
be suspended based upon her lack of criminal history, as well as her “clean disciplinary
record” while incarcerated. Additionally, the Defendant explained that she had
completed multiple “re-entry courses,” including:           “Domestic Violence, Anger
Management, Victim’s Impact, Thinking for a Change, Parenting, Social
Skills, Life Skills, Job Readiness, Budgeting, Coping Skills and Group Processing.”

       On September 26, 2014, the trial court entered an order denying the Motion for
Suspension of Remainder of Sentence. In denying the Defendant’s motion, the trial court
noted that the Defendant “has, in essence, asked this court to modify the sentence
previously imposed.” The trial court concluded, “After examination of the [Motion for
Suspension of Remainder of Sentence] filed in this case, together with the files, record,
transcripts and correspondence relating to the judgment and previously imposed sentence,
this court finds the Petition should be denied.” This timely appeal followed.




        1
           The record in this case is sparse; it does not contain a copy of the Defendant’s plea agreement or
transcript of the guilty plea submission hearing. Nonetheless, based upon the Defendant’s filings, we
gather that “PSRS” means “petition for suspension of remainder of sentence.” The record does explain
why the plea agreement and the judgment of conviction provided that the Defendant may petition the
court to suspend the remainder of her sentence on or after August 7, 2014, nine months after her plea was
entered. There is nothing in the record to indicate that the trial court expected the Defendant to be
confined in the local jail or workhouse so that it could maintain jurisdiction to reduce or modify of
sentence under Tennessee Code Annotated section 40-35-314(c). In any event, at the time the motion was
filed, the Defendant was incarcerated in a Department of Correction prison and modification or reduction
of sentence was governed by Tennessee Rule of Criminal Procedure 35, which provides the “motion must
be filed within 120 days after the date the sentence is imposed or probation is revoked.”
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                                        II. Analysis

       On appeal, the Defendant asserts that the trial court abused its discretion by
denying the Motion for Suspension of Remainder of Sentence without an evidentiary
hearing. She contends that the motion was timely filed, within the jurisdiction and
discretion of the trial court, and “proper in the interests of justice.” The Defendant
asserts that her lack of criminal record, acceptance of responsibility, the speedy resolution
of her case, her compliance with the plea agreement, and her institutional record are
“facially meritorious of full evidentiary review.”

       Rule 35 of the Tennessee Rules of Criminal Procedure provides, as follows:

       (a) Timing of Motion. The trial court may reduce a sentence upon motion
       filed within 120 days after the date the sentence is imposed or probation is
       revoked. No extensions shall be allowed on the time limitation. No other
       actions toll the running of this time limitation.

       (b) Limits of Sentence Modification. The court may reduce a sentence only
       to one the court could have originally imposed.

       (c) Hearing Unnecessary. The trial court may deny a motion for reduction
       of sentence under this rule without a hearing.

       (d) Appeal. The defendant may appeal the denial of a motion for reduction
       of sentence but shall not be entitled to release on bond unless already under
       bond. If the court modifies the sentence, the state may appeal as otherwise
       provided by law.

Tenn. R. Crim. P. 35. According to the Advisory Commission Comments to Rule 35,
“[t]he intent of this rule is to allow modification only in circumstances where an
alteration of the sentence may be proper in the interests of justice.”

        This court reviews a trial court’s denial of a Rule 35 motion under an abuse of
discretion standard. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006); State v. Edenfield,
299 S.W.3d 344, 346 (Tenn. Crim. App. 2009). “[A]n appellate court should find that a
trial court has abused its discretion only when the trial court has applied an incorrect legal
standard, or has reached a decision which is illogical or unreasonable and causes an
injustice to the party complaining.” Ruiz, 204 S.W.3d 778 (citing Howell v. State, 185
S.W.3d 319, 337 (Tenn. 2006)).


                                            -3-
        Initially, the State contends that the Defendant’s motion was not properly before
the trial court because the Defendant was not in local custody at the time she filed the
motion but in the custody of the Department of Correction.2 However, in Edenfield, this
court held that a Rule 35 motion is not contingent on the location of the defendant.
Edenfield, 299 S.W.3d at 346. The court found that, under the terms of Rule 35, “a trial
judge retains jurisdiction to modify a defendant’s sentence if the motion is properly filed
within 120 days of entry of the sentence, regardless of the defendant’s location.” Id.; see
also Tenn. Code Ann. § 40-35-212, Sentencing Comm’n Comments (“Subsections (c)
and (d) provide that the judge has full jurisdiction to modify the terms and conditions of
any sentence unless the defendant has been sentenced to the department. There are two
exceptions . . . . Second, . . . sentences may be modified pursuant to Tenn. R. Crim. P.
35(b), which permits modifications within 120 days of sentencing.”). Accordingly, the
trial court’s jurisdiction over the Defendant’s Rule 35 motion was not affected by the fact
that the Defendant was in the custody of the Department of Correction.

        However, the State also contends that the trial court lacked jurisdiction over the
Defendant’s motion because the motion was untimely. We agree. The record shows that
the trial court sentenced the Defendant on November 7, 2013, and the Defendant did not
file the Motion for Suspension of Remainder of Sentence until August 12, 2014, well-
outside of the 120-day limitations period. Although the Defendant’s judgment of
conviction notes that she could petition for the suspension of the remainder of her
sentence “on or after August 7, 2014,” Rule 35 does not provide for modifications of its
time limitations. To the contrary, the rule explicitly states that the 120-day limitations
period cannot be extended or tolled. See Tenn. R. Crim. P. 35(a). Because the
Defendant’s motion was filed outside the 120-day limitations period, the trial court was
without jurisdiction to consider the motion. Accordingly, we conclude that the trial court
properly denied the Defendant’s late-filed motion.

        Despite its untimeliness, the trial court considered the merits of the Defendant’s
motion and conducted a full review of the matter before denying relief. The record does
not establish that the Defendant presented the trial court with evidence of a change in
circumstances sufficient to warrant the suspension of the remainder of her sentence “in
the interests of justice.” See Tenn. R. Crim. P. 35, Advisory Comm’n Comments. Thus,
even if the Defendant’s motion were timely, we would not conclude that the trial court
abused its discretion when it denied relief.




       2
          It appears from the Defendant’s motion that she was in custody at the Department of
Correction’s Mark H. Luttrell Correctional Center.
                                            -4-
                                 III. Conclusion

Based upon the foregoing, the judgment of the trial court is affirmed.



                                          _________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE




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