        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 12, 2014

              STATE OF TENNESSEE v. BRANDON CROASMUN

                   Appeal from the Circuit Court for Cannon County
                    Nos. F12-58, F12-94     David M. Bragg, Judge


               No. M2014-00243-CCA-R3-CD - Filed November 7, 2014


The defendant, Brandon Croasmun, appeals from the Cannon County Circuit Court’s denial
of his motion for a suspended sentence. Because the trial court’s denial was based on its
erroneous belief that it lacked jurisdiction to decide the motion, as conceded by the State, we
reverse the decision of the trial court and remand for a hearing.

    Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Kenneth R. McKnight, Assistant Public Defender, for the appellant, Brandon Croasmun.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Trevor Lynch, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              On July 20, 2012, the defendant pleaded guilty to six counts of forgery and
received an agreed, effective sentence of four years on probation. On November 1, 2012, the
defendant pleaded guilty to one count of initiation of a process to manufacture
methamphetamine and agreed to the revocation of his probation in the forgery case. The trial
court sentenced the defendant to 10 years in a community corrections program, to be served
consecutively to the defendant’s four-year sentence in the forgery case, for an effective 14-
year sentence in community corrections placement.

             In May 2013, the defendant was arrested and charged with driving under the
influence and a violation of the implied consent law. The defendant pleaded guilty to the
implied consent violation and the lesser included offense of reckless driving, and he self-
reported the violation to his community corrections case officer. On September 5, 2013, the
trial court conducted a hearing on the revocation of the defendant’s probation. The defendant
asked the court for leniency and promised to abide by all conditions set by the court if the
court did not impose a fully-incarcerative sentence. Upon information provided by the trial
court, defense counsel questioned the defendant about any additional charges he had received
while on probation, and the defendant admitted that he had pleaded guilty to stalking his ex-
wife in Warren County. The defendant explained that he did not realize that the conviction
would affect his community corrections status.

              At the conclusion of the hearing, the trial court ruled as follows:

                     [The defendant] has had numerous opportunities to show
              the Court that he was a suitable candidate for probation. He was
              also given the extraordinary relief of serving through
              Community Corrections where he would get credit for his street
              time. However, even at that, he was unable to comply with
              requirements of Community Corrections by maintaining good
              and lawful conduct.

                      The Court is going to order that [the defendant] serve his
              sentence as initially imposed. The Court recognizes that he was
              sentenced as a Standard, 30 Percent Offender. The Court would
              anticipate based on the current processes of the Department of
              Corrections that he will receive not only credit for his time that
              he was on Community Corrections, but that he’ll be released at
              some point by the Department of Corrections. And hope that he
              will take advantage of that opportunity to comply with good and
              lawful behavior and won’t have to come back to court on a
              violation then.

                     But I think it’s best to get this behind you . . . rather than
              putting you out in a position where you’re liable to come back
              again after serving some period of time and then be ordered to
              serve your sentence. So, the Court finds based on the violation
              that you are to serve your sentence as initially imposed by the
              Court. . . .

              On December 3, 2013, the defendant filed a motion for a suspended sentence
pursuant to Tennessee Rule of Criminal Procedure 35 and Tennessee Code Annotated section

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40-35-303. The trial court denied the motion on January 8, 2014, finding that it no longer
had jurisdiction over the defendant’s case because the defendant had already been transported
to the Tennessee Department of Correction (“TDOC”).

                From this ruling, the defendant appeals, arguing that the trial court erred by
finding that it lacked jurisdiction on the basis of the defendant’s transfer to TDOC. The
defendant contends that this court ruling’s in State v. Edenfield, 299 S.W.3d 344 (Tenn.
Crim. App. 2009), which found that a defendant’s location does not deprive a trial court of
jurisdiction over a timely-filed Rule 35 motion, controls. The State concedes that, in light
of the holding in Edenfield, the trial court erred by denying the defendant’s motion.
However, the State asserts that the defendant has waived the issue by failing to “bring the
court’s error to its attention,” citing Tennessee Rule of Appellate Procedure 36(a) (“Nothing
in this rule shall be construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”).

              The State’s argument of waiver is inapt. Jurisdictional issues may not be
waived. See Tenn. R. App. P. 13(b) (stating that “[t]he appellate court shall also consider
whether the trial . . . court [has] jurisdiction over the subject matter, whether or not presented
for review”). Moreover, Tennessee Rule of Criminal Procedure 35 itself provides that the
remedy for denial of a motion for sentence reduction is appeal. See Tenn. R. Crim. P. 35(d).
As such, the defendant’s issue is properly before this court.

                Tennessee Rule of Criminal Procedure 35 provides that “[t]he trial court may
reduce a sentence upon motion filed within 120 days after the date the sentence is imposed
or probation is revoked.” Tenn. R. Crim. P. 35(a). The rule expressly denies extensions of
time to the 120-day filing requirement and provides that “[n]o other actions toll the running
of this time limitation.” Id. In denying the defendant’s motion for a suspended sentence, the
trial court in the instant case apparently relied upon Tennessee Code Annotated section 40-
35-212, which provides, in pertinent part, as follows:

               (c) Unless the defendant receives a sentence in the department,
               the court shall retain full jurisdiction over the manner of the
               defendant’s sentence service.

               (d)(1) Notwithstanding subsection (c), the court shall retain full
               jurisdiction over a defendant sentenced to the department during
               the time the defendant is being housed in a local jail or
               workhouse awaiting transfer to the department. The jurisdiction
               shall continue until the defendant is actually transferred to the

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              physical custody of the department.

Id. Finding that the defendant was in the custody of TDOC at the time he moved for
suspended sentence, the trial court believed that section 40-35-212 divested it of jurisdiction
over the defendant’s claim.

                However, as argued by the defendant and conceded by the State, this court has
held that “a Rule 35 motion stands on its own power and is not contingent on the location of
the defendant,” and, accordingly, “a trial judge retains jurisdiction to modify a defendant’s
sentence if the motion is properly filed within 120 days of entry of the sentence, regardless
of the defendant’s location.” Edenfield, 299 S.W.3d at 346; see also T.C.A. § 40-35-212,
Sentencing Comm’n Comments (“Subsections (c) and (d) provide that the judge has full
jurisdiction to modify the terms and conditions of any sentence unless the defendant has been
sentenced to the department. There are two exceptions. . . . Second, . . . sentences may be
modified pursuant to Tenn. R. Crim. P. 35(b), which permits modifications within 120 days
of sentencing.”).

               In the instant case, the defendant filed his Rule 35 motion on December 3,
2013, approximately 90 days after entry of his sentence and well within the 120-day time
limit mandated by Rule 35. The fact that the defendant was, at the time he made the motion,
in the custody of TDOC did nothing to affect the trial court’s jurisdiction over his motion,
and thus, the trial court erred by denying the motion on the basis of the defendant’s location.
Accordingly, we reverse the decision of the trial court and remand for a hearing on the
defendant’s Rule 35 motion for suspended sentence.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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