        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 15, 2015


                 STATE OF TENNESSEE v. DEREK BURGESS

                  Appeal from the Circuit Court for Madison County
                    No. 08-385, 08-386    Donald H. Allen, Judge




               No. W2015-00196-CCA-R3-CD - Filed March 18, 2016
                        _____________________________

The defendant, Derek Burgess, committed new criminal offenses while on probation, and
the trial court revoked his probation and ordered him to serve the remainder of his
sentence in prison. The defendant appeals the trial court’s order sentencing him to serve
his sentence in incarceration, arguing that the trial court incorrectly calculated the length
of his remaining sentence. Following our review, we affirm the judgment of the trial
court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., J., joined. ROGER A. PAGE, J., not participating.

Gregory D. Gookin, Assistant District Public Defender, for the Appellant, Derek Burgess.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant
District Attorney General, for the Appellee, State of Tennessee.


                                        OPINION

                       FACTS AND PROCEDURAL HISTORY

       The defendant was charged with a litany of crimes in two separate indictments. In
Case No. 08-386, he was charged with nineteen offenses: five counts of vehicle burglary,
five counts of theft of property, seven counts of vandalism, and two counts of reckless
burning. In Case No. 08-385, he was charged with an additional nineteen offenses: four
counts of theft of property, six counts of vandalism, five counts of vehicle burglary, and
one count each of felony evading arrest, aggravated burglary, reckless burning, and
reckless endangerment.

      On September 15, 2008, the defendant entered guilty pleas in both cases. In Case
No. 08-386, the defendant pled guilty and was sentenced as follows, with the remaining
charges dismissed:

      Count 1: auto burglary: 2 years;
      Count 2: unauthorized use of a motor vehicle: 11 months, 29 days;
      Count 3: vandalism less than $10,000: 3 years;
      Count 4: auto burglary: 2 years;
      Count 5: unauthorized use of a motor vehicle: 11 months, 29 days;
      Count 6: vandalism less than $60,000: 4 years, 6 months;
      Count 7: auto burglary: 2 years; and
      Count 8: vandalism under $500: 11 months, 29 days.

For the offenses in Case No. 08-385, the defendant pled guilty and was sentenced as
follows:

      Count 1: unauthorized use of a motor vehicle: 11 months, 29 days;
      Count 2: vandalism over $10,000: 4 years, 6 months;
      Count 3: felony evading arrest: 2 years;
      Count 4: auto burglary: 2 years;
      Count 5: auto burglary: 2 years;
      Count 6: theft of property under $500: 11 months, 29 days;
      Count 7: theft of property under $500: 11 months, 29 days;
      Count 8: vandalism under $500: 11 months, 29 days;
      Count 9: vandalism under $500: 11 months, 29 days;
      Count 10: vandalism under $500: 11 months, 29 days;
      Count 11: vandalism under $500: 11 months, 29 days;
      Count 12: auto burglary: 2 years;
      Count 13: auto burglary: 2 years;
      Count 14: aggravated burglary: 4 years;
      Count 15: theft of property under $500: 11 months, 29 days;
      Count 16: Reckless burning: 11 months, 29 days;
      Count 17: felony reckless endangerment: 2 years;
      Count 18: vandalism under $500: 11 months, 29 days; and
      Count 19: auto burglary: 2 years.

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On October 28, 2008, the trial court held a sentencing hearing. The court imposed partial
consecutive sentencing, aligning the convictions into four groups:

             1. Case No. 08-386: all counts concurrent with each other but
       consecutive to Case No. 08-385 for an effective 4.5-year sentence, with six
       months in jail.

              2. Case No. 08-385 Counts 1-3: concurrent with each other but
       consecutive to Counts 4-19 and the offenses in Case No. 08-386 for an
       effective 4.5-year sentence, with six months in jail.

             3. Case No. 08-385 Counts 4-13: concurrent with each other but
       consecutively to Counts 1-3 and Counts 14-19 and all counts in Case No.
       08-386 for an effective 2-year sentence, with six months in jail.

              4. Case No. 08-385 Counts 14-19: concurrent with each other but
       consecutive to Counts 1-13 and all counts in Case No. 08-386 for an
       effective 4-year sentence, with six months in jail.

The trial court imposed the sentences from Case No. 08-386 first, and the court ordered
each group to be served consecutively to the other, for an effective sentence of fifteen
years. The defendant was ordered to serve four consecutive six-month terms (one for
each sentencing group) of “shock incarceration,” for an effective sentence of two years in
confinement. He was ordered to serve the remaining thirteen years of his sentence on
probation supervised by community corrections.

       A probation violation warrant was issued on October 28, 2014, alleging that the
defendant violated his probation when he was arrested and charged with vandalism,
arson, and burglary. At a probation revocation hearing, the trial court found that he
violated his probation by committing new criminal offenses.1 The trial court observed
that there was some question as to which of the defendant’s sentences had expired. The
court continued the hearing to permit the attorneys to review the transcript of the guilty
plea hearing and to make arguments about which of the defendant’s sentences were
expired.

       At the second hearing, the trial court stated that it intended for the defendant to
serve his sentence in Case No. 08-386 first, and the court found that this sentence was
expired. The court found that none of the defendant’s sentences in Case No. 08-385 had

       1
          The defendant does not contest the finding that he violated his probation, and we have not
included the testimony from the hearing in this opinion.
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expired and that he was still on probation for each of these sentences. The court noted
that the defendant received effective sentences of four and a half years, four years, and
two years for the offenses in Case No. 08-385, leaving him with a total effective sentence
of ten and a half years. The court stated that the defendant would be entitled to jail credit
for previous time served, and the court awarded the defendant jail credit from October 20,
2008, to April 9, 2010, and from October 24, 2014, to December 30, 2014. The court
ordered the defendant to serve the balance of his sentence in prison.

                                       ANALYSIS

        The defendant does not take issue with the trial court’s finding that he violated the
terms of his probation or the order to serve his sentence in incarceration. The defendant
only takes exception to the fact that the trial court found that his remaining sentence was
ten years and six months. He contends that because he served three six-month periods of
incarceration for each “group” of his sentences in Case No. 08-385, his total sentence
should only be nine years. The State responds that the defendant simply misinterpreted
the order as imposing a sentence that did not credit him for his time served and that the
trial court appropriately sentenced the defendant.

       A trial court’s decision to revoke probation is reviewed under an abuse of
discretion standard. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). Generally, a trial
court abuses its discretion when it “applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d
436, 443 (Tenn. 2010). The trial court may revoke probation if it finds by a
preponderance of the evidence that a defendant violated a condition of his or her
probation. T.C.A. § 40-35-311(e)(1) (2010); State v. Kendrick, 178 S.W.3d 734, 738
(Tenn. Crim. App. 2005). “The proof of a probation violation need not be established
beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a
conscientious and intelligent judgment.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). After the court finds that a defendant violated a condition of probation, the court
may order the imposition of the original sentence, return the defendant to probation under
modified conditions, or extend the probation for a period not exceeding two years.
T.C.A. § 40-35-310, -311(e), -308(a), (c).

       Here, the defendant received an effective sentence of fifteen years. At the time the
probation revocation warrant was issued, the defendant’s four-and-a-half-year sentence in
Case No. 08-386 had expired. His remaining sentences of four years, two years, and four
and a half years for the offenses in Case No. 08-385 had not expired, which left him with
an effective remaining sentence of ten and a half years from the original judgment.
Tennessee Code Annotated section 40-35-501(a)(7(A) provides that “[i]f the sentencing
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court revokes probation, the sentencing court may cause the defendant to commence the
execution of the judgment as originally entered, less any credit for time served, plus any
sentence credits earned and retained by the inmate.” (Emphasis added). As a result, the
trial court properly imposed the defendant’s original sentence of ten and a half years
while awarding him jail credit for his time served during his original period of
incarceration and for the period when he was jailed while his probation revocation was
pending. The defendant is not entitled to any relief.

                                    CONCLUSION

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




                                                _________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




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