                                                                                        12/05/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs October 16, 2019

              STATE OF TENNESSEE v. ADARION C. MORRIS

              Appeal from the Criminal Court for Davidson County
Nos. 2016-C-1500, 2016-C-1501, 2016-C-2181    Angelita Blackshear Dalton, Judge


                            No. M2018-02034-CCA-R3-CD


The defendant, Adarion C. Morris, appeals the 48-year sentence imposed following the
revocation of his community corrections placement, arguing that the trial court was
without jurisdiction to impose the new sentence and that the sentence is excessive.
Discerning no error, we affirm the revocation of the defendant’s community corrections
placement and the sentences imposed following the resentencing.

           Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Lonnie Maze III, Nolensville, Tennessee, for the appellant, Adarion C. Morris.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Samantha Dotson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

             In case number 2016-C-1500, the Davidson County Grand Jury charged the
defendant with one count of the possession with intent to sell or deliver .5 grams or more
of cocaine and one count of the simple possession or casual exchange of marijuana. In
case number 2016-C-1501, the same grand jury charged the defendant with two counts of
aggravated assault, one count of felony evading arrest, and one count of second or
subsequent offense of driving on a revoked license. In case number 2016-C-2181, the
defendant was charged with one count of aggravated assault. On April 27, 2018, the
defendant pleaded guilty as charged in case numbers 2016-C-1501 and 2016-C-2181 and
count two of case number 2016-C-1500. He also pleaded guilty to the lesser included
offense of the attempted possession with intent to sell or deliver .5 grams or more of
cocaine in count one of case number 2016-C-1500. Pursuant to a plea agreement with the
State, the defendant received a total effective sentence of six years to be served in a
community corrections placement in exchange for his pleas of guilty.

               Less than two months later, on June 20, 2018, a community corrections
violation warrant issued alleging that the defendant had violated the terms of his
community corrections placement by failing to report. An amended violation warrant
issued on July 25, 2018, alleging that the defendant had violated the terms of his
community corrections placement by garnering new charges of vandalism, assault, and
aggravated assault. A second amended violation warrant issued on August 1, 2018,
alleging that the defendant violated the terms of his community corrections placement by
garnering yet another charge of aggravated assault.

              At the October 17, 2018 hearing, Davidson County Community Corrections
case officer Lisa Baden testified that the defendant began reporting in April 2018 and
stopped reporting on June 5, 2018. Ms. Baden later learned that the defendant had been
arrested on charges of vandalism, assault, and aggravated assault with a deadly weapon.

              Metropolitan Nashville Police Department Detective Gary Shannon
testified that he investigated three separate incidents in which the defendant was
suspected of the aggravated assault of three different victims. He explained,

                    One of the incidents was here in Davidson County [on
             July 18, 2018,] at 3203 Lagrange Drive. . . . There was a
             couple of people, Tina Yarbrough and Antoinisha Shepherd
             were inside of that residence when they heard gunfire outside.
             The house was hit multiple times. As a matter of fact, we
             collected nine shell casings from that location outside.

                    A witness that was in the house in a different bedroom
             that was not hit, Ms. Irving, she ran outside, and she could see
             [the defendant] running away from the residence. And then,
             he got into a dark colored vehicle. She could see something
             in his hand. She couldn’t make out what it was. And she
             knew that [the defendant] had just been in a bad breakup with
             Shaniqua Shepard.

Antoinisha Shepard was apparently the daughter of the defendant and Shaniqua Shepard.

             Another incident occurred on July 10, 2018, at 144 Hodge Court. On that
occasion, Thomas McKissick
                                           -2-
              was outside, he heard gunshots. He could see the flashes
              from the gunshots, and he could hear the bullets striking
              around him. . . . . He could see . . . what he thought was [the
              defendant], shooting at him. We collected seven shell
              casings from that residence as well. And shortly after that
              incident, Shaniqua Shepard received a call from [the
              defendant], and he had told her that he had just shot at her
              uncle, Mr. McKissick.

               The other incident occurred on July 11, 2018, at 917 14th Avenue North.
On that occasion, “Lamonte Ayers was outside of his residence and he heard
approximately two gunshots, one bullet struck near the ground near him. He didn’t see a
shooter and we weren’t able to recover any shell casings on that incident.” Shortly after
the shooting, however, the defendant “called Shaniqua Shepard . . . and said that he had
just shot at her cousin on 14th Avenue North.”

             Detective Shannon testified that charges related to each of the three
incidents had been bound over to the Davidson County Grand Jury following a lengthy
preliminary hearing. The State exhibited the recording of that preliminary hearing to
Detective Shannon’s testimony.

              During cross-examination, Detective Shannon testified that, although he
was not involved in the investigation, he was aware of a July 10, 2018 incident during
which the defendant choked Shaniqua Shepard and pointed a gun at her. He said that the
charges stemming from that incident had also been bound over to the grand jury
following the same preliminary hearing. Detective Shannon acknowledged that neither
Ms. Irving nor Mr. McKissick was completely sure in their identification of the defendant
as the shooter. Detective Shannon said that he did not interview the defendant and that
the defendant had not provided any statement following his arrest.

            During redirect examination, Detective Shannon testified that forensic
testing had matched the shell casings collected during the investigation to a 9mm
handgun recovered during the defendant’s arrest.

              Following this testimony, the State rested, and the defendant elected to
present no proof. The State asked the trial court to revoke the defendant’s community
corrections placement and to exercise its discretion to resentence the defendant. To this
end, the State exhibited to the hearing a resentencing report. The State asked the trial
court to increase the individual sentences and to order consecutive service of the
sentences. The defendant admitted “that he has violated his community corrections.
                                           -3-
That’s obvious.” Nevertheless, he asked the court not to increase the sentence and
instead order the existing six-year sentence into service. The trial court took the case
under advisement.

             In a written order, the trial court found by a preponderance of the evidence
that the defendant had violated the terms of his community corrections placement
“[b]ased on proof presented regarding the events that are alleged to have occurred on July
10, 11 and 18, 2018,” as well as the defendant’s failure to report. The court also
concluded that resentencing rather than execution of the original agreed sentence was
warranted under the circumstances of this case.1

               The court determined that, based upon his criminal record, the defendant
was a Range II offender. The court applied enhancement factors (1), that the defendant
had a history of criminal convictions or criminal behavior in addition to that necessary to
establish the appropriate range, and (8), that the defendant previously failed to comply
with a sentence involving release into the community, to all of the defendant’s
convictions. See T.C.A. § 40-35-114(1), (8). The court applied factors (3), that the
offenses involved more than one victim, and (19), that the victim of the aggravated
assault was a law enforcement officer, to the defendant’s convictions in case number
2016-C-1501. See id. § 40-35-114(3), (19). The court applied enhancement factors (10),
that the defendant had no hesitation about committing a crime when the risk to human
life was high, and (12), that the offenses involved the threat of death or serious bodily
injury, to the defendant’s convictions in case numbers 2016-C-1501 and 2016-C-2181.
See id. § 40-35-114(10), (12). The court noted that it was “extremely disturbed by the
[d]efendant’s history of criminal behavior, including convictions for domestic violence
related and other violent offenses, especially considering that one of the instant cases
involved a domestic violence related offense.” The court observed that the charges that
resulted in the revocation of the defendant’s community corrections sentence were “based
on the allegations of seriously violent offenses . . . including additional allegations of
domestic violence committed in the presence of children, and the use of a handgun
against the family of the [d]efendant’s former girlfriend.” The court expressed “great
trepidation about the [d]efendant’s total disregard for authority and his lack of an
appreciation for his accountability for his actions and the impact of his criminal behavior
on others.” Based upon these findings, the trial court imposed a sentence of 10 years’
incarceration for each of the defendant’s three convictions of aggravated assault, a
sentence of 10 years’ incarceration for the defendant’s conviction of attempted
possession of cocaine, and a sentence of eight years’ incarceration for the defendant’s
conviction of felony evading arrest.

1
        The defendant received sentences of “time served” for his convictions of simple possession and
driving on a revoked license. Consequently, those counts are not at issue in this case.
                                                 -4-
               The trial court also ordered that the all of the sentences be served
consecutively, for a total effective sentence of 48 years’ incarceration. Relative to
sentence alignment, the court found that the defendant had an extensive record of
criminal activity and that he qualified as a dangerous offender. See id. § 40-35-115(b)(2),
(4). The court also concluded “that consecutive sentencing is appropriate and necessary
to protect the public against further criminal conduct by the [d]efendant and relates to the
severity of the offenses committed.”

               The court determined that confinement was necessary to protect society
from further criminal conduct by the defendant and to avoid depreciating the seriousness
of the offenses. See id. § 40-35-103(A), (B). Finally, the court found that measures less
restrictive than confinement had frequently and recently been applied unsuccessfully to
the defendant. See id. § 40-35-103(C).

              In this timely appeal, the defendant does not challenge the revocation of his
community corrections placement but asserts that the trial court erred by electing to
resentence him instead of ordering execution of the original six-year agreed sentence.
Specifically, he contends that, because he was statutorily ineligible for community
corrections in the first place, the trial court lacked the authority to resentence him under
the terms of Code section 40-36-106. He also argues that, assuming that the trial court
had the authority to resentence him, the new sentence is excessive given that he had not
yet been convicted of the new offenses that led to the revocation of his community
corrections placement.

                              Propriety of Original Sentence

             The defendant first asserts that, because he was statutorily ineligible for
community corrections placement for his convictions of aggravated assault, the trial court
was without the authority to resentence him following the revocation of that placement.
He claims that the court was only authorized to order service of the original sentence.

              As a general rule, “[i]ssues raised for the first time on appeal are considered
waived.” State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996). As the State
correctly points out, the defendant did not challenge the legality of the original six-year
community corrections placement prior to or at the revocation and resentencing hearing.
Additionally, although “a trial judge may correct an illegal, as opposed to a merely
erroneous, sentence at any time, even if it has become final,” State v. Brown, 479 S.W.3d
200, 206 (Tenn. 2015) (quoting State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)),
the original six-year community corrections placement was not, as the defendant
contends, an illegal sentence. An illegal sentence is one “that is not authorized by the
                                             -5-
applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.
36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015). The defendant is
correct that he was not eligible for community corrections placement for his aggravated
assault convictions under the terms of Code section 40-36-106(a), which excludes from
eligibility those felony offenders convicted of offenses “involving crimes against the
person as provided in title 39, chapter 13, parts 1-5.” T.C.A. § 40-36-106(a)(1)(B)
(emphasis added). Code section 40-36-106(c), however, provides an exception to that
general exclusion:

              Felony offenders not otherwise eligible under subsection (a),
              and who would be usually considered unfit for probation due
              to histories of chronic alcohol or drug abuse or mental health
              problems, but whose special needs are treatable and could be
              served best in the community rather than in a correctional
              institution, may be considered eligible for punishment in the
              community under this chapter.

Id. § 40-36-106(c). Because a community corrections placement was among the
statutorily available sentences, the defendant cannot establish that his original six-year
community corrections sentence was illegal.

                                Propriety of Resentencing

               As indicated, the defendant does not challenge the factual basis supporting
the revocation of his community corrections placement but argues that the sentence
imposed by the trial court following his resentencing is excessive. He asserts that the
trial court failed to “consider the fact that” he had not yet been convicted of any new
offenses at the time of the resentencing hearing. He also claims that the trial court should
have considered in mitigation the fact that “Ms. Shepard had first denied being abused . .
. and did not call the police until almost three weeks after the alleged incident.”

               Importantly, the preponderance of the evidence adduced at the revocation
hearing established that the defendant committed the offenses that led to the revocation of
his community corrections placement. Consequently, the trial court did not err by
revoking the community corrections placement. See T.C.A. § 40-35-311(e)(1) (“If the
trial judge finds that the defendant has violated the conditions of probation and
suspension by a preponderance of the evidence, the trial judge shall have the right by
order duly entered upon the minutes of the court to revoke the probation and suspension
of sentence . . . .”); State v. Harkins, 811 S.W.2d 79, 83 (Tenn. 1991) (“Given the similar
nature of a community corrections sentence and a sentence of probation, we hold that the
same principles are applicable in deciding whether a community corrections sentence
                                            -6-
revocation was proper.”).

              Code section 40-36-106 provides that, following the revocation of a
community corrections placement, a trial 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,” provided that “[t]he
resentencing [is] conducted in compliance with § 40-35-210.” T.C.A. § 40-36-106(d)(4).
“The purpose of this statute is to permit a trial court to impose a new sentence if the
nature, circumstances, and frequency of the accused’s violations warrant a different type
of alternative sentence or incarceration.” State v. Ervin, 939 S.W.2d 581, 583 (Tenn.
Crim. App. 1996). “A sentence imposed pursuant to this statute may exceed the length of
the sentence initially imposed by the trial court,” id., and may include the consecutive
alignment of sentences that were originally aligned concurrently, see State v. Samuels, 44
S.W.3d 489, 496 (Tenn. 2001).

               Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of
the purposes and principles of sentencing involves a consideration of “[t]he potential or
lack of potential for the rehabilitation or treatment of the defendant . . . in determining the
sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial
courts are “required under the 2005 amendments to ‘place on the record, either orally or
in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380
S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). The standard of review adopted in
Bise “applies similarly” to the imposition of consecutive sentences, “giving deference to
the trial court’s exercise of its discretionary authority to impose consecutive sentences if
it has provided reasons on the record establishing at least one of the seven grounds listed
in Tennessee Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851,
861 (Tenn. 2013).

               In State v. Wilkerson, the supreme court held that the trial court must find
that consecutive sentences are reasonably related to the severity of the offenses
committed and are necessary to protect the public from further criminal conduct before
utilizing the “dangerous offender” category to impose consecutive sentencing, see State
v. Wilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995), and “[t]he adoption of the abuse of
discretion standard with the presumption of reasonableness has not eliminated this
requirement,” Pollard, 432 S.W.3d at 863.

              In this case, the trial court conducted a resentencing hearing, and its
                                              -7-
resentencing order complied with the terms of Code section 40-35-210. The trial court
considered the enhancement and mitigating factors when imposing the new sentences,
and, although the court arguably misapplied some of the enhancement factors, the
remaining factors supported the length of the individual sentences. The record also
supports the trial court’s conclusion that consecutive sentences were warranted based
upon the defendant’s extensive criminal record and his status as a dangerous offender.
The court, noting the level of violence involved in the conviction offenses as well as the
defendant’s pattern of violent behavior in his prior convictions and in the offenses that
led to the revocation of his community corrections placement, made the necessary
findings under Wilkerson. The resentencing report indicates that the defendant had prior
convictions of voluntary manslaughter, aggravated assault, attempted aggravated assault,
assault (two counts), and violating an order of protection (two counts). The
preponderance of the evidence established that, less than two months after being granted
a community corrections placement, the defendant not only possessed a deadly weapon
but used it to terrorize his ex-girlfriend and members of her family. In our view, “the
nature, circumstances, and frequency of” the defendant’s violent behavior warranted the
new sentence imposed by the trial court. See Ervin, 939 S.W.2d at 583.

             Accordingly, we affirm the judgments of the trial court.

                                                  _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




                                           -8-
