          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                               AT KNOXVILLE                     January 3, 2000

                                                               Cecil Crowson, Jr.
                          NOVEMBE R SESSION, 1999             Appellate Court Clerk




STATE OF TENNESSEE                 )   C.C.A. NO. 03C01-9903-CR-00122
                                   )
            Appellee,              )
                                   )   KNOX COUNTY
V.                                 )
                                   )
                                   )   HON. RICHARD BAUMGARTNER
RAMAAN JAMEL THOMAS,               )
                                   )
            Appe llant.            )   (THEF T OF P ROPE RTY)




FOR THE APPELLANT:                     FOR THE APPELLEE:

WILLIAM L. BROWN                       PAUL G. SUMMERS
Attorney at Law                        Attorney General & Reporter
706 Walnut Street, Suite 902
Knoxville, TN 37902                    MARVIN S. BLAIR, JR.
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       RANDALL EUGENE NICHOLS
                                       District Attorn ey Ge neral

                                        MARSHA SELECMAN
                                        Assistant District Attorney General
                                        400 M ain
                                        P.O. Box 1468
                                        Knoxville, TN 37901-1468




OPINION FILED ________________________

AFFIR MED IN PAR T; REV ERS ED IN PAR T;
REMANDED FOR RESENTENCING

THOMAS T. WOODALL, JUDGE




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                                  OPINION

      Defendant Ramaan Jamel Thomas pled guilty in the Knox County Criminal

Court to one count of theft of property worth between $10,000.00 and $60,000.00

and the trial court imposed a sentence of three years to be served in the Co mm unity

Alternative to Prison Pro gram (“CAPP”).        The trial court subsequently revoked

Defe ndan t’s participation in CAPP and im posed a sentence of six years in the

Tennessee Department of Correction, with credit for time served in jail and in CAPP.

Defendant challenges his sentence, raising the following issues:

      1) whether the trial court erred when it revoked his placement in CAPP; and

      2) whether the trial court erred when it increased his sentence to six years.

After a review of the record we affirm the judgment of the trial court in part, reverse

the judgment in part, and remand this case for resentencing.




                                 I. BACKGROUND




      Defendant was pla ced in C APP on Oc tober 17, 1996. On November 22,

1996, a CAPP violation warrant was filed which alleged that Defendant had violated

the CAP P requ iremen ts by failing to obey the laws of the United S tates and the State

of Tennessee. Following a hearing, the trial court denied the State’s petition for

revocation of Defendant’s participation in CAPP. On May 23, 1997, a second CAPP

violation warrant was filed which alleged that Defendant had violated the CAPP

requirem ents by failing to remain employed, failing to pay fees, failing to report, and

failing to perform com munity service . Following ano ther hearing, the trial cou rt

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denied the State’s petition for revocation of Defendant’s participation in CAPP. On

May 27, 1998, a third CAPP violation warrant was filed which alleged that Defendant

had violated the CAPP requirements by failing to pay fees, failing to report, failing

to keep his curfew, failing to perform community service, and possessing/owning a

firearm.




      At the revocation hearing on the third violation warrant held June 8, 1998,

Herman Dickerson testified that Defendant had failed to keep his curfew on three

separa te occasions in April and May of 1998 . In add ition, De fenda nt had repea tedly

failed to report for classes and meetings, had failed to perform community service

according to sched ule, and h ad failed to pay fees on sche dule de spite having th e

financial means to do so.      Dickerson testified that in essence, Defendant had

demonstrated an unwillingness to comply with the requirements of CAPP.




      Ina Akinola testified that she was Defendant’s former girlfriend. On May 27,

1998, at appro ximate ly 1:00 a.m ., Defend ant left Akinola’s residence after the two

had a brief argum ent. Defenda nt subsequ ently returned an d pounde d on the doo r,

but Akinola refuse d to let h im in. D efend ant the n threa tened to dam age A kinola ’s

car if she would not let him in the residence. After some words were exchanged,

Defendant and a nothe r girlfrien d got in to a ve hicle and Akinola went outside. At this

point, Defen dant po inted a gu n at Akin ola and when the vehic le he wa s in started to

drive away, Defendant fired a shot out the window.




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       At the conclusion of the hearing, the trial court stated that it had previously

found that Defendant had violated the CAPP requirements, but it had given

Defendant another chance with a warning that future violations would have serious

consequences. The trial court then revoked Defendant’s participation in CAPP

based on his failure to comply with the program’s requirements. The trial court then

increased the sentence from three years to six years without any explanation or

further elaboration.




       On October 2, 1998, Defendant filed a “Motion to Reconsider” his sentence.

The trial court conducted a hearing on the motion on October 14, 1998. At the

beginning of the hearing, the trial court took judicial notice of the fact that the criminal

charges against Defendant for the incident with Akinola had been dismissed

beca use A kinola had fa iled to a ppea r for trial.




       During the hearing on the motion to reconsider, Kelly Irick testified that she

was present during the altercation between Akinola and Defendant on May 27, 1998,

and sh e neve r saw D efenda nt with a g un and she ne ver hea rd any sh ots fired.




       Defendant testified that although he was at Akinola’s residence on May 27,

1998, he did not have a gun. Defendant claimed that he had failed to report and

attend CAPP classes because he had been working. Defendant admitted that he

had not paid fees according to schedule, but he claimed that he could not pay the

fees because he had to quit h is job when he was arrested for the incident involving




                                             -5-
Akinola. Defendant also admitted that he had violated curfew, but he claimed that

it only occurred once.




       At the conc lusion of th e hearin g, the trial cou rt denied the mo tion to

reconsider.    The court stated that the major reason for its decision to revoke

Defe ndan t’s placement in CAPP and to increase the sentence was the incident

involving Akinola.




                                       II. WAIVER




       Initially, the State conten ds that Defendant waived his right to appeal the

revocation of his placement in CAPP and the increase of his sentence by failing to

file notice of appeal within thirty days of the entry of the judgment appealed from as

required by Rule 4(a) of the Tenne ssee R ules of A ppellate Procedure. Although the

record indicates that Defendant did not file notice of appeal within the thirty day

period, Rule 4 (a) exp ressly provid es tha t in crim inal ca ses, “th e ‘notic e of ap peal’

document is not jurisdictional and the filing of such document may be waived in the

interest of justice.” W e have decided to exercise our discretion and waive the tim ely

filing of the no tice of app eal in orde r to consid er the issu es raised by Defe ndant.




                                   III. REVOCATION




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         Defendant contends that the trial court erred when it revoked his placement

in CAP P.




         The decision to revoke a Community Corrections sentence rests within the

sound discretion of the trial court and that decision will not be disturbed on appeal

unless there is no subs tantial e viden ce to s uppo rt the tria l court's conclus ion that a

violation had oc curred. State v. Harkins, 811 S.W .2d 79, 82 (Tenn. 1 991). In

reviewing the trial court's finding, it is our obligation to examine the record and

determine whether the trial court has exercised a conscientious judgment rather than

an arbitrary on e. See State v. Mitch ell, 810 S.W.2d 733, 735 (Tenn. Crim. App.

1991).




         Defendant contends that the trial court improperly relied on the incident

involving Akinola as a basis for revoking his placement in CAPP. Specifically,

Defendant contends that the trial court could not rely on his alleged possession and

firing of a gun because Defendant and Irick denied that Defendant had a gun and the

charges involvin g the in ciden t were dropp ed be caus e Akin ola faile d to appear for

trial. However, after observing the testimony and demeanor of Akinola, Irick, and

Defen dant, the trial court accredited the testimony of Akinola and found that Irick and

Defendant had b een u ntruthf ul. Contr ary to D efend ant’s a ssertio ns, no thing in the

Com munity Correc tions Act p rovides th at a violation of a Community Corrections

sentence must result in a criminal conviction in order to be considered by a trial court

as a basis for revoc ation. Moreo ver, the proof of a violation need not be established




                                             -7-
beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a

conscie ntious an d intelligent d ecision. Harkins, 811 S.W.2d at 82.




      Moreov er, even without the incident involving Akinola, there was substantial

other evidence that Defendant violated the requirements of CAPP.              Indeed,

Dickerson testified that Defendant had failed to keep his curfew on three separa te

occasions, had repeatedly failed to report for class es and meetin gs, had failed to

perform community service according to schedule, and had failed to pay fees on

sche dule despite having the financial means to do so. Under these circumstances,

the trial court was clearly justified in re voking Defendant’s placement in CAPP.

Defendant is not entitled to relief on this issue.




                           IV. INCREASE IN SENTENCE




      Defendant contends that the trial court erred when it increa sed h is sentence

from three to six years.




      The Community Corrections Act provides that once a defendant violates the

terms of his or her Community Corrections sentence, the trial court may revoke the

sentence and impose a new sentence:




                                          -8-
      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 wh ich the defend ant has bee n sentence d, and the cou rt
      may resente nce the defend ant to any approp riate sente ncing alte rnative,
      including incarceration, for any period of time up to the maximum sentence
      provid ed for the offense committed, less any time actually served in any
      comm unity-bas ed altern ative to inca rceration .

Tenn. C ode An n. § 40-3 6-106(e )(4) (Sup p. 1999 ).




      Although the abo ve statute make s it clear that a trial court has the auth ority

to increase the length of sentence upon the revocation of a Community Corrections

sentence, there are certain re quiremen ts that must be satisfied before the trial cou rt

may do so. First, the trial court must state its reasons for imposing a new sentence

on the reco rd. Tenn . Code Ann. §§ 40-35-2 09(c), -210(f)–(g) (1997 & Supp. 1999).

In addition, the record of the sentencing hearing "shall include specific findings of

fact upon which application of the sentencing principles was based." Tenn. Code

Ann. § 4 0-35-20 9(c) (199 7). Furthe r,

             (f) When ever the cou rt imposes a sentence, it shall place on the record
      either orally o r in writin g wha t enha ncem ent or m itigating factors it found , if
      any, as w ell as finding s of fact as required by § 40- 35-209 .
             (g) A sentence must be based on evidence in the record of the trial, the
      sentencing hearing, the presentence report, and, the record of prior felony
      convictions filed by the district attorney general with the court as required by
      § 40-35 -202(a).

Tenn Code Ann. § 40-35-210 (Supp. 199 9).              These statu tory provisions are

manda tory and the fact that this Court reviews sentences de novo does not relieve

the trial court from comp lying with th ese statu tory ma ndates . State v. Ervin , 939

S.W.2d 581, 58 4 (Tenn . Crim. A pp.199 6); see also Baker v. State, 989 S.W.2d 739,

741 (Te nn. Crim . App. 19 98).




                                           -9-
       In the revocation hearing of this case, the trial court made certain findings of

fact in regard to the ba sis for revocation, bu t the trial court did not make any findings

of fact in regard to the basis for the increase in the length of sentence. In fact, the

trial court did not identify any reason whatsoever for increasing the length of

sentence. It is true that during the hea ring on the m otion to reconside r, the trial court

indicated that it had increased the length of sen tence base d on D efend ant’s conduct

during the incident with Akinola. However, the trial court failed to identify the

enhancement and mitigating factors that applied to Defendant’s sentence and the

court failed to identify the findings of fact that would have supported the application

of any enhancement or mitigating factors.




       Quite simply, th e trial court d id not follow the sente ncing pro cedure s set forth

in the 1989 Sentencing Act when it increased the length of Defendant’s sentence.

The court did not address the purposes or sentencing considerations of the Act. Nor

did the cour t set forth its findings with respect to enhancement and mitigating factors.

Thus, we cannot conduct the statutorily mandated de novo review of the increased

sentence impos ed by the trial court up on revo cation of th e CAP P sente nce. See

State v. Cooper, 977 S.W .2d 130, 132 (Tenn. Crim . App. 1998 ); Ervin , 939 S.W.2d

at 584. W e there fore re verse Defe ndan t’s incre ased sente nce a nd we rema nd this

case for a ne w sen tencin g hea ring co nsiste nt with the prin ciples outline d in this

opinion. See Cooper, 977 S.W .2d at 132 ; Ervin , 939 S.W.2d at 584. We wish to

emphasize that although there may be valid grounds for an increased sentence, the

trial court may not increase the sentence for the sole purpose of punishing




                                            -10-
Defendant for violating th e require ments of his CA PP se ntence . See Ervin , 939

S.W.2d at 583.




                                 V. CONCLUSION




      For the reasons stated above , we affirm the trial court’s re vocation of

Defe ndan t’s placem ent in CA PP. However, we reverse the increased sentence

imposed by the trial court and we remand this case for a new sentencing hearing

consistent with the principles outlined in this opinion.




                                 ____________________________________
                                 THOMAS T. WO ODALL, Judge




CONCUR:




___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




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