        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 21, 2013 Session

                STATE OF TENNESSEE v. JEREMY MULKEY

                 Appeal from the Criminal Court for McMinn County
                      No. 11-CR-134    Amy A. Reedy, Judge


              No. E2012-02337-CCA-R3-CD - Filed September 12, 2013




Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the State appeals the
manner of service of the sentence ordered by the Criminal Court for McMinn County. As
a Range I, standard offender, the Defendant, Jeremy Mulkey, entered a plea of guilty to
vandalism of $1,000 or more but less than $10,000, a Class D felony, vandalism of $10,000
or more but less than $60,000, a Class C felony, and reckless endangerment, a Class E
felony. The trial court sentenced the Defendant, consistent with the plea agreement, to
concurrent terms of four years for Class D felony vandalism; four years for Class C felony
vandalism and two years for reckless endangerment. After conducting a sentencing hearing,
the trial court ordered the Defendant to serve his sentence in the community corrections
program. In doing so, the State argues that the trial court abused its discretion because the
Defendant pleaded guilty to reckless endangerment, a crime against the person, and therefore,
failed to meet the minimum statutory requirements to be sentenced under the Community
Corrections Act. Tenn. Code Ann. § 40-36-106 (2012). Upon review, we reverse and
remand for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed
                        And Remanded for Resentencing

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P. J., and J AMES C URWOOD W ITT, J R., J., joined.

Robert L. Jolley, Jr., Knoxville, TN, for the Defendant-Appellant, Jeremy Mulkey.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea D. Faughn, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and Steve Morgan, Assistant District
Attorney General, for the Appellee, State of Tennessee.
                                          OPINION

       In November 2010, the Defendant was involved in a series of crimes, including
throwing a fan motor onto Interstate 75 from the County Road 130 overpass in McMinn
County, Tennessee. The fan motor struck a Lee University tour bus that contained 18 people
and injured the driver, Shelton Lewis. On April 19, 2011, the McMinn County Grand Jury
indicted the Defendant for vandalism and reckless endangerment for his involvement in these
crimes. As reflected above, the Defendant entered a guilty plea and was sentenced to an
effective four-year sentence. Over the objections of the State, the trial court ordered that the
Defendant serve his effective four-year sentence on community corrections and entered an
order placing the Defendant on community corrections on October 29, 2012. It is from this
order that the State appeals.

                                         ANALYSIS

       On appeal, the State argues that the trial court abused its discretion because it
improperly sentenced the Defendant to community corrections under the Community
Corrections Act. See Tenn. Code Ann. § 40-36-106 (2012). The State asserts that the
Defendant pled guilty to reckless endangerment, a “crime against the person as provided in
title 39, chapter 13, parts 1-5,” and therefore fails to meet the minimum eligibility
requirements under the Act. Moreover, the State maintains that the Defendant is not eligible
under the special needs exception for alcohol, drug, or mental health problems. In response,
the Defendant argues that the State has no standing to appeal the trial court’s sentence to
community corrections, and in any event, that the trial court did not abuse its discretion.
Upon review, we agree with the State.

       We first address the Defendant’s argument that the State cannot appeal a sentence
imposed under the Community Corrections Act. Tennessee Code Annotated section 40-35-
402 sets out the limited circumstances from which the State may appeal a sentence imposed
by the trial court. Section 40-35-402 states:

       (a) The district attorney general in a criminal case may appeal from the length,
       range or manner of the service of the sentence imposed by the sentencing court
       . . . An appeal pursuant to this section shall be taken within the same time and
       in the same manner as other appeals in criminal cases. The right of the appeal
       of the state is independent of the defendant’s right to appeal.

       (b) An appeal from a sentence is limited to one (1) or more of the following
       conditions:



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              (1) The court improperly sentenced the defendant to the wrong sentence
              range;

              (2) the court granted all or part of the sentence on probation;

              (3) The court ordered all or part of the sentences to run concurrently;

              (4) The court improperly found the defendant to be an especially
              mitigated offender;

              (5) The court failed to impose the fines recommended by the jury;

              (6) The court failed to order the defendant to make reasonable
              restitution; or

              (7) The sentence is inconsistent with the purposes or considerations of
              sentencing set out in §§ 40-35-102 and 40-35-103.

       Although the Defendant correctly notes that section 40-35-402 does not specifically
mention a community corrections sentence as an appealable issue, this Court has previously
held that the State may pursue such appeals. See State v. Tom Hale, No. 03C01-9411-
CR00404, 1995 WL 460916, at *2 (Tenn. Crim. App. Aug. 4, 1995) (reasoning that such an
appeal by the State is appropriate under either the broad language of section 40-35-402(a),
which allows the state to appeal from the “manner of the service of the sentence imposed by
the sentencing court,” or under section 40-35-402(b)(2)); see also State v. Brian Eugene
Stansberry, No. E2007-01227-CCA-R3-CD, 2008 WL 2095355, at *2 (Tenn. Crim. App.
May 19, 2008); State v. Clifton Epps, No. 02C01-9601-CR-00022, 1997 WL 703344 (Tenn.
Crim. App. Nov. 13, 1997). We conclude, therefore, that the State may properly appeal the
trial court’s decision to order the Defendant’s sentence to be served on community
corrections.

       In reviewing a State’s appeal of a defendant’s sentence, this Court applies the same
standard of review “as where the defendant takes the appeal.” Tenn. Code Ann. § 40-35-402,
Sentencing Comm’n Cmts. There is “a presumption that the determination made by the trial
court was correct,” and the State bears the burden of “establishing that the trial court imposed
an improper sentence.” Id. In State v. Bise, the Tennessee Supreme Court abrogated the de
novo standard of review and adopted an abuse of discretion standard of review regarding
sentencing issues. 380 S.W.3d 682, 707 (Tenn. 2012) (“So as to comport with the holdings
in Booker, Rita, and Gall, today we adopt an abuse of discretion standard of review, granting
a presumption of reasonableness to within-range sentencing decisions that reflect a proper

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application of the purposes and principles of our Sentencing Act.”). A few months after the
Bise decision, the Tennessee Supreme Court clarified that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to . . . questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012). Thus, this standard guides our analysis in the case sub judice.

        The intent of the Community Corrections Act was to “[e]stablish a policy within the
state to punish selected, nonviolent felony offenders in front-end community based
alternatives to incarceration, thereby reserving secure confinement facilities for violent
felony offenders.” Id. § 40-36-103(1) (2010). Under the Act, “[a]n offender who meets all
of the following minimum criteria” is eligible for community corrections:

       (A) Persons who, without this option, would be incarcerated in a correctional
       institution;

       (B) Persons who are convicted of property-related, or drug- or alcohol-related
       felony offenses or other felony offenses not involving crimes against the
       person as provided in title 39, chapter 13, parts 1-5;

       (C) Persons who are convicted of nonviolent felony offenses;

       (D) Persons who are convicted of felony offenses in which the use or
       possession of a weapon was not involved;

       (E) Persons who do not demonstrate a present or past pattern of behavior
       indicating violence; and

       (F) Persons who do not demonstrate a pattern of committing violent offenses.

Id. § 40-36-106(a)(1)(A)-(F) (2012) (emphasis added). The Act’s criteria “shall be
interpreted as minimum state standards, guiding the determination of eligibility of offenders
under this chapter.” Id. § 40-36-106(d); see also State v. Grigsby, 957 S.W.2d 541, 546
(Tenn. Crim. App. 1997) (emphasizing that the Act sets out the minimum eligibility
requirements); State v. Stephenson, No. 03C01-9512-CC-00404, at *4 (Tenn. Crim. App.
Jan. 28, 1997).

        However, an offender who fails to meet the minimum eligibility requirements under
section 40-35-106(a) may also be eligible for a sentence of community corrections if he
satisfies the “special needs” exception under section 40-35-106(c). The special needs
exception allows offenders “who would be usually considered unfit for probation due to

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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” to be eligible for community
corrections. Id. To be eligible for community corrections under the special needs exception,
this Court has previously stated that a defendant must first be statutorily eligible for
probation. Grigsby, 957 S.W.2d at 546; State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim.
App. 1996); State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).

       In the present case, there is no question that the Defendant entered a guilty plea to
reckless endangerment under Tennessee Code Annotated section 39-13-103. Reckless
endangerment is a “crime against the person as provided in title 39, chapter 13, parts 1-5.”
See Id. § 40-35-106(a)(1)(B). Therefore, the Defendant is statutorily ineligible for the
alternative sentence of community corrections under section 40-35-106(a)(1) because he fails
to meet all of the minimum requirements for eligibility. Additionally, the trial court did not
make any findings that the Defendant was eligible for community corrections under the
special needs exception, and in fact, the State produced evidence that the Defendant did not
abuse alcohol or drugs and had no history of mental health problems. Therefore, on this
record, the Defendant is also ineligible for community corrections under section 40-35-
106(c). Thus, we conclude that the trial court abused its discretion by sentencing the
Defendant to community corrections. Accordingly, we reverse the judgment of the trial court
and remand the case for resentencing.

                                         CONCLUSION

        Based upon the foregoing reasoning and authority, we reverse the judgment of the
trial court and remand the case for resentencing. Upon remand, the trial court is not
limited to the proof adduced at the previous sentencing hearing in order to impose a
sentence consistent with the purposes and principles of the sentencing act as well as to
determine any other available sentencing alternatives.




                                           ___________________________________
                                           CAMILLE R. McMULLEN, JUDGE




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