           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

            STATE OF TENNESSEE, v. MELL THOMAS BRUTON.

                Direct Appeal from the Criminal Court for Davidson County
                       No. 98-B-1163 Cheryl Blackburn, Trial Judge



                    No. M1999-00956-CCA-R3-CD - Decided April 7, 2000


In June 1998, the appellant, Mell Thomas Bruton,1 pled guilty to one (1) count of aggravated assault
and received a sentence of six (6) years as a Range II offender.2 The trial court ordered that the
appellant be placed on community corrections after serving six (6) months of his sentence. In July,
a warrant was filed against the appellant alleging that he had violated two conditions of his
community corrections sentence. After an evidentiary hearing, the trial court revoked the appellant’s
community corrections sentence and re-sentenced him as a Range II offender to nine (9) years
incarceration. On appeal, the appellant claims that the trial court erred in revoking his community
corrections sentence and in increasing his sentence to nine (9) years. Because we find that the
appellant was not eligible for community corrections in the first instance, and further that, in any
event, ample reason exists to revoke the appellant’s community corrections placement and increase
his sentence, we affirm the judgment of the trial court.

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

SMITH, J., delivered the opinion of the court, in which HAYES, J., and OGLE , J., joined.

Terry J. Canady, Madison, Tennessee, for the appellant, Mell Thomas Bruton

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, for
the appellee, State of Tennessee




       1
       The indictment listed the following aliases for the appellant: Mel Thomas Bruton, Melvin
Thomas Bruton, and Anthony Bruton.
       2
          Although not pertinent to this appeal, the appellant also pled guilty to one (1) count of
resisting arrest and received a suspended six (6) month sentence for that offense.
                                              OPINION
                                                 I.

On January 15, 1998, the appellant and the victim, Beatrice Gordon, were involved in a physical
altercation where the appellant struck the victim with a rubber hammer. The victim sustained a
broken left arm as a result of the blow. The appellant pled guilty in June to one (1) count of
aggravated assault and received a six (6) year sentence as a Range II offender. The trial court
ordered that the appellant be placed in community corrections after serving six (6) months of his
sentence.
        In July a warrant was filed against the appellant alleging that the appellant had violated two
(2) conditions of his community corrections sentence3. Specifically, the warrant alleged that the
appellant violated the conditions of his community corrections sentence by being arrested for assault.
The warrant also stated that the appellant violated a special condition of his community corrections
sentence by failing to stay away from the victim, Beatrice Gordon.
        At the community corrections revocation hearing, Gordon testified that, several days after
the appellant was released from incarceration, he went to her home, without invitation, and assaulted
her. As a result of the assault, the victim sustained bruises on her arm, the lower part of her back and
her legs.
        The trial court determined that the state had proven by a preponderance of the evidence that
the appellant violated the terms of his community corrections sentence by assaulting the victim.
After revoking the appellant’s community corrections sentence, the trial court re-considered the
appellant’s sentence. The court found three (3) enhancement factors to be applicable to the
appellant’s conviction for aggravated assault: (1) the appellant has a previous history of criminal
convictions in addition to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-
35-114(1); (2) the appellant has a “previous history of unwillingness to comply with the conditions
of a sentence involving release in the community,” Tenn. Code Ann. § 40-35-114(8); and (3) the
appellant used a deadly weapon in the commission of the offense, Tenn. Code Ann. § 40-35-114(9).
The trial court found no mitigating factors to be applicable. After considering the relevant factors,
the trial court re-sentenced the appellant as a Range II offender to a term of nine (9) years
incarceration for aggravated assault.
        From the trial court’s ruling, the appellant now brings this appeal.

                                                  II.

        Although not raised by either party, this Court notes that the appellant was statutorily
ineligible for a sentence in community corrections. Under Tenn. Code Ann. § 40-36-106(a)(2),

       3
        Due to pretrial jail credits, the appellant was released from incarceration approximately one
(1) month after he was sentenced.

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persons who commit “crimes against the person” are not eligible for community corrections.
Aggravated assault is an offense against the person. See Tenn. Code Ann. § 39-13-102(a)(1)(A).
        Thus, as a general rule, this Court would affirm the revocation of the community corrections
sentence and remand this case to the trial court to determine whether the plea bargain was
conditioned upon the illegal provision that the appellant receive community corrections and, if so,
allow the appellant to withdraw his plea of guilty. See State v. Jon Connors, a.k.a. Jon Robert
Connors, C.C.A. No. 03C01-9506-CC-00176, 1996 Tenn. Crim. App. LEXIS 785, at *2, Blount
County (Tenn. Crim. App. filed December 17, 1996, at Knoxville). However, in this case, the
appellant received the benefit of the community corrections sentence, but failed to comply with the
conditions of that alternative sentence. Thus, the appellant received the “benefit of his bargain”
when he was sentenced pursuant to the plea agreement. See State v. Kenneth W. Ervin, C.C.A. No.
03C01-9707-CC-00311, 1998 Tenn. Crim. App. LEXIS 1037, at *6, Blount County (Tenn. Crim.
App. filed October 2, 1998, at Knoxville) (Peay, J., dissenting). Therefore, we do not believe that
the facts of this case necessitate a remand.

                                                 III.

        The appellant argues that there is insufficient evidence in the record that the appellant
violated the terms of his community corrections sentence. We disagree.
        In a revocation proceeding, the state has the burden of proving the violation by a
preponderance of the evidence. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). A trial court may
revoke a defendant’s community corrections sentence “at any time due to the conduct of the
defendant . . . 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.” Tenn. Code Ann. § 40-36-106(e)(4). Before the trial court may revoke community
corrections, the record must contain sufficient evidence to permit the court to make an intelligent and
conscientious decision. State v. Harkins, 811 S.W.2d at 82. On appeal, the trial court’s order
revoking a community corrections sentence is subject to reversal only upon a showing of an abuse
of discretion. Id. In order for this Court to find an abuse of discretion, we must determine that the
record contains no substantial evidence sufficient to support the trial judge’s conclusion that the
appellant violated the terms of his sentence. Id.
        The victim testified that, several days after he was released, the appellant came to her home
and assaulted her. The assault resulted in bruises on the victim’s arm, back and legs. As a condition
of community corrections, the appellant was ordered to stay away from the victim. Thus, by merely
walking into the victim’s home, the appellant violated the conditions of his sentence.
        Secondly, the appellant violated his community corrections sentence by committing a
criminal offense, i.e., assault. The appellant argues that the victim’s uncorroborated testimony that
an assault occurred is insufficient to support the trial court’s determination that he violated
community corrections. However, the trial court need only find by a preponderance of the evidence
that he violated the terms of his sentence. The victim’s uncontradicted testimony was clearly
sufficient to meet that burden.
        The evidence in the record supports the trial court’s decision to revoke the appellant’s
community corrections sentence. As a result, we find no abuse of discretion. This issue is without


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merit.

                                                  IV.

         The appellant also argues that the trial court erred in increasing his sentence from six (6)
years to nine (9) years after revoking his community corrections sentence. Initially, this Court notes
that, aside from his bare assertion that the trial court erred in increasing his sentence, the appellant
has failed to provide argument in support of this issue. Therefore, the appellant has waived this
allegation due to his failure to provide argument in support of this allegation. Tenn. Ct. Crim. App.
Rule 10(b); Tenn. R. App. P. 27(a)(7).
         Nevertheless, we will briefly consider the issue on its merits. Under Tenn. Code Ann. § 40-
36-106(e)(4), after revoking a defendant’s community corrections sentence, the trial court has the
authority to re-sentence the defendant. A sentence imposed pursuant to this provision may exceed
the length of the sentence initially imposed by the trial court without offending principles of double
jeopardy under the federal and state constitutions. State v. Griffith, 787 S.W.2d 340, 341-42 (Tenn.
1990). “[W]hen a trial court opts to impose a sentence which exceeds the length of the initial
sentence based on a breach of the terms of the sentence, the trial court must conduct a sentencing
hearing pursuant to the Tennessee Criminal Sentencing Reform Act of 1989.” State v. Ervin, 939
S.W.2d 581, 583 (Tenn. Crim. App. 1996); see also State v. Cooper, 977 S.W.2d 130, 132 (Tenn.
Crim. App. 1998).
         In conducting a review of the sentence imposed by the trial court, this Court is guided by
certain well-established principles. Our review of the sentence imposed by the trial court is de novo
with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is
conditioned upon an affirmative showing in the record that the trial judge considered the sentencing
principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). If the trial court fails to comply with the statutory directives, there is no presumption of
correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). In
conducting a review of the sentence, this Court must consider the evidence, the presentence report,
the sentencing principles, the arguments of counsel, the nature and character of the offense,
mitigating and enhancement factors, any statements made by the defendant, and the potential for
rehabilitation or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The
defendant bears the burden of showing the impropriety of the sentence imposed. State v. Gregory,
862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).
         In re-sentencing the appellant, the trial court found three (3) enhancement factors to be
applicable to his conviction for aggravated assault: (1) the appellant has a previous history of
criminal convictions in addition to those necessary to establish the appropriate range, Tenn. Code
Ann. § 40-35-114(1); (2) the appellant has a “previous history of unwillingness to comply with the
conditions of a sentence involving release in the community,” Tenn. Code Ann. § 40-35-114(8); and
(3) the appellant used a deadly weapon in the commission of the offense, Tenn. Code Ann. § 40-35-
114(9). The court found no applicable mitigating factors.
         We find that the trial court properly applied the above enhancement factors. First, the
appellant has a long criminal history, extending over ten (10) years. See Tenn. Code Ann. § 40-35-
114(1). Secondly, the presentence report indicates that the appellant previously committed criminal


                                                  -4-
offenses while on some form of release for other crimes. See Tenn. Code Ann. § 40-35-114(8).
Finally, the appellant pled guilty to aggravated assault causing serious bodily injury; therefore, the
fact that he used a deadly weapon, i.e., a hammer, during the commission of the offense may be
considered in enhancement. See Tenn. Code Ann. § 40-35-114(9).
        After determining that no mitigating factors applied, the trial court imposed a Range II
sentence of nine (9) years for aggravated assault, a Class C felony. After reviewing the record, we
conclude that the sentence imposed by the trial court was appropriate.
        This issue has no merit.

                                                 V.

       The trial court properly revoked the appellant’s community corrections sentence. Moreover,
on re-sentencing, the court imposed an appropriate sentence of nine (9) years incarceration.
Accordingly, the judgment of the trial court is affirmed.




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