         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                      Assigned on Briefs at Knoxville June 24, 2008

      STATE OF TENNESSEE v. THOMAS JEFFERSON TEAGUE, JR.

                     Appeal from the Criminal Court for Davidson County
                          No. 2006-C-2353     Seth Norman, Judge



                    No. M2007-01646-CCA-R3-CD - Filed August 19, 2008


A Davidson County Criminal Court grand jury indicted the defendant, Thomas Jefferson Teague, Jr.,
on one count of possession of a handgun by a convicted felon and one count of possession of drug
paraphernalia. The trial court accepted a plea agreement in which the defendant agreed to plead guilty
to only felony possession of a weapon in exchange for a Range I sentence of two years’ confinement
in a regional workhouse. Subsequently, the defendant filed a motion seeking placement in a
community corrections program. Adopting the State’s view that the incarcerative sentence was
embraced in a binding plea agreement and was not subject to modification, the trial court denied the
motion, and the defendant appealed. Although the trial court applied an incorrect legal standard in
denying relief, we affirm its order because the record demonstrated no factual basis for relief.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Jeremy Gourley, Nashville, Tennessee, for the appellant, Thomas Jefferson Teague, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Renee Erb, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                  Pursuant to the plea agreement, the trial court, on November 2, 2006, entered a
judgment sentencing the defendant as a Range I offender to two years in confinement in a facility
described in the conviction judgment as “C.C.A.” and which has been described by the defendant in
the trial court record as a regional workhouse. See T.C.A. § 41-1-602 (2006). The drug paraphernalia
charge was dismissed.
                On April 13, 2007, the defendant filed a motion seeking placement in a community
corrections program.1 In his motion, the defendant sought to suspend “his incarceration” and alleged
that he was incarcerated when the motion was filed, during which time he completed a treatment
program called “LifeLines.” Although in the hearing on the motion to modify the sentence, the
defendant did not pointedly testify that he was in the custody of a regional workhouse, when asked,
“What other classes have you completed while you been [sic] out there?” the defendant replied,
“Parent training and got my driver’s license certificate, defensive driving, and aftercare.” We
therefore infer from the various references the defendant made to his incarceration that, at the time
of the motion filing, and in any event at the time of the hearing, the defendant was in the custody of
“C.C.A.” which, again, is described by the defendant in the record as a regional workhouse.

                On April 20, 2007, the trial court conducted a hearing on the motion. The State
opposed the relief upon the grounds that the plea-arranged sentence was binding. The State
characterized the plea as one subject to Tennessee Rule of Criminal Procedure 11(c)(1)(C). After
hearing testimony directed to the factual aptness of the defendant’s entering a community corrections
program, the trial court ordered the preparation of a transcript of the plea submission hearing and
adjourned the motion hearing until April 27, 2007. On that date, the court announced that a transcript
of the plea submission hearing had been prepared. According to the assistant district attorney general
who represented the State on April 27, the plea agreement provided that the defendant would “receive
a sentence of two years at 30 percent to serve, concurrent with another sentence he is serving.”2 The
trial court took the matter under advisement.

               On June 19, 2007, the trial court entered an order in which it found that the defendant’s
plea was submitted pursuant to Tennessee Rule of Criminal Procedure 11(c)(1)(C) and held that,
accordingly, the defendant was bound by the terms of the agreed-upon sentence. The defendant filed
a timely notice of appeal pursuant to Tennessee Rules of Appellate Procedure 3 and 4.

               On appeal, the defendant claims that his guilty plea was submitted pursuant to
Tennessee Rule of Criminal Procedure 11(c)(1)(B) and, in any event, was controlled by Tennessee
Code Annotated section 41-1-605, with the result that the sentence was subject to modification as
requested in the defendant’s motion.

                                                     I. Justiciability

               The first step in our consideration of the case is to determine the legal basis for the
motion to modify the sentence. In his trial court memorandum filed in support of his motion, the
defendant stated that he was not proceeding pursuant to Tennessee Rule of Criminal Procedure 35 but
rather was invoking Tennessee Code Annotated section 41-1-605 as the underpinning for his motion.


         1
            W e infer that, at the time of filing and the hearing on the motion, the defendant was incarcerated in the “C.C.A.”
facility in Nashville.

         2
             The transcript of the plea submission hearing is not in the appellate record.

                                                             -2-
               Rule 35 provides in pertinent part:

                      (a) Timing of Motion. The trial court may reduce a sentence
              upon motion filed within 120 days after the date the sentence is
              imposed or probation is revoked. No extensions shall be allowed on the
              time limitation. No other actions toll the running of this time
              limitation.

                     (b) Limits of Sentence Modification. The court may reduce a
              sentence only to one the court could have originally imposed.

Tenn. R. Crim. P. 35(a), (b). Tennessee Code Annotated section 41-1-605 provides:

                      (a) Confinement in a regional workhouse shall be considered a
              sentence to the department; provided, that the court shall retain full
              jurisdiction over the defendant during the term of the sentence and may
              modify or reduce the sentence or may place the defendant on probation
              supervision where otherwise eligible.
                      (b) Following the first application, applications to alter the
              manner of the service of the sentence may be made at no less than three
              (3) month intervals.

T.C.A. § 41-1-605 (2006). In the present case record, the defendant characterizes his placement in
“C.C.A.” as a placement in a regional workhouse. Indeed, he couched his motion in terms of Code
section 41-1-605 and stated in his trial court memorandum of law that “C.C.A. is a regional
workhouse and qualifies under [section] 41-1-605 . . . due to its location and function in Davidson
County, Tennessee.” The case was argued before the trial judge based upon the defendant’s premise
that “C.C.A.” was a “regional” workhouse, and no one took exception to that characterization. In the
trial court’s order denying relief, it referred to “C.C.A.” as merely “a local facility in Davison
County”; however, the court utilized the language of Code section 41-1-605 in resolving the case.
We conclude that the trial court in the present case treated the “C.C.A.” facility located in Davidson
County as a regional workhouse. Because such appears as a fact in the record before us, we
adjudicate the case based upon the premise that Code section 41-1-605 is the proper provision for the
defendant’s claim to sentence modification.

               To be sure, the defendant was barred by time from proceeding pursuant to Rule 35.
His April 13, 2007 motion to modify was filed more than 150 days after his sentencing judgment had
been entered on November 2, 2006. Nevertheless, the defendant had the option of seeking a
modification of the manner of service of his sentence independently of Rule 35 and its time
constraints. The Advisory Commission’s comments to Rule 35 illustrate that the procedure
authorized by the rule is collateral to statutory sentence-modification provisions. See Tenn. R. Crim.
P. 35, Advisory Comm’n Comments; see also, e.g., T.C.A. § 40-35-212(c), (d) (2006) (providing the
sentencing court with continuing jurisdiction over a defendant’s manner of serving his or her


                                                 -3-
sentence, unless the defendant is sentenced to the Department of Correction, and that, in the latter
event, the court retains jurisdiction of the manner of service of the sentence until the defendant is
“actually transferred to the physical custody of the department”); id., Sentencing Comm’n Comments
(stating that section 40-35-212(d)’s authorization of post-sentencing modifications is in addition to
the modification procedure implemented by Rule 35); id. § 40-35-319(b) (recognizing the separate
modification bases offered by Code section 40-35-212(d) and Rule 35); id. § 40-35-314(c)
(specifically providing that, when a defendant is sentenced to a local jail or workhouse, the sentencing
court “retain[s] full jurisdiction over the defendant during the term of the sentence and may reduce
or modify the sentence or may place the defendant on probation supervision where otherwise
eligible”) (emphasis added); see also generally State v. Ruiz, 204 S.W.3d 772, 776-79 (Tenn. 2006)
(discussing the function of Rule 35 as being independent of other sentence-modification statutes,
particularly Tennessee Code Annotated section 40-35-306(c), which authorizes the sentencing court
to modify a sentence of split confinement). But see State v. Elvin Williams, No. M2006-00287-CCA-
R3-CO, slip op. at 2-3 (Tenn. Crim. App., Nashville, Feb. 22, 2007) (holding that trial court lost
jurisdiction to “hear the defendant’s Rule 35 motion” filed after he had been transferred to the
physical custody of the Department of Correction); State v. Kenneth Ray White, No. M2002-00125-
CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nashville, Sept. 11, 2002) (acknowledging for purposes
of approving the use of Rule 35 that “[a]lthough at the time [the Rule 35 motion was filed] the
Appellant was sentenced to the Department of Correction, the trial court retained sentencing
jurisdiction as the Appellant was housed in the local jail awaiting transfer to the . . . Department of
Correction”).

                 Thus, despite not being mentioned in the comments to Rule 35, Code section 41-1-605
is obviously one such statute that provides a modification of a sentence apart from the rigors of Rule
35. Section 41-1-605, which specifically addresses sentences to regional workhouses, says that
although the regional-workhouse sentence is deemed a placement in the Department of Correction,
the trial court “retain[s] full jurisdiction over the defendant during the term of the sentence and may
modify or reduce the sentence or may place the defendant on probation supervision where otherwise
eligible.” T.C.A. § 41-1-605(a) (emphasis added). The statute then authorizes successive
applications to modify the manner of service of a sentence by providing that, following the first
application for modification, the defendant may file successive applications “at no less than three (3)
month intervals.” Id. The language of section 41-1-605 is strikingly similar to that of section 40-35-
314(c), which provides for the trial court’s jurisdiction over sentencing placements in local jails or
workhouses.3 Based upon the similarity of the two statutes’ provisions, we must conclude that, via
section 41-1-605, the legislature intended to equate the sentencing-modification possibilities of
defendants placed in regional workhouses with those placed in local jails or workhouses.




         3
           Governing sentences to local jails or workhouses, Tennessee Code Annotated section 40-35-314(c) provides:
“The court shall retain full jurisdiction over the defendant during the term of the sentence and may reduce or modify the
sentence or may place the defendant on probation supervision where otherwise eligible. Following the first application,
applications to reduce or to alter the manner of the service of the sentence may be made at no less than two (2) month
intervals.” T.C.A. § 40-35-314(c).

                                                          -4-
                 Next, we know that in State v. Malcolm Colllins Lewis, No. M2007-00610-CCA-R3-
CD (Tenn. Crim. App., Nashville, Apr. 29, 2008), this court took pains to articulate that Lewis’
application for modification of his workhouse sentence was not filed pursuant to Rule 35 but was
properly filed pursuant to Code section 40-35-314(c). Id., slip op. at 4-5.4 The plain upshot of this
articulation in Malcolm Collins Lewis is that a defendant serving a section 40-35-314(c) sentence is
not limited or relegated to a Rule 35 motion for purposes of seeking modification of the manner of
his or her sentence. Because we have determined that the effect of section 41-1-605 is to equate the
modification of a regional-workhouse placement with that of a local-jail or -workhouse placement,
the present defendant enjoyed the same opportunity for modification as would a defendant confined
in a local jail or workhouse.

                 In our view, the result is that the defendant was availed the auspices of section 41-1-
605 despite that he filed his motion more than 120 days from the entry of his judgment and that he
may have been in the custody of a regional workhouse when he sought the sentence modification.
On this latter point, we realize neither Malcolm Collins Lewis nor any other case we have found says
that a defendant may seek sentence modification after his or her transfer into the physical custody of
a regional workhouse, a placement that Code section 41-1-605 itself deems a placement in the
Department of Correction. See T.C.A. § 40-35-303(e) (2006) (indicating that probation must be
granted, if at all, at the time of sentencing, “except for sentences served in a local jail or workhouse,
or except during the time a defendant is being housed in a local jail or workhouse awaiting transfer
to the department as provided in § 40-35-212(d)”). Section 41-1-605, however, like section 40-35-
314(c), contemplates that a defendant may move for sentence modification “during the term of the
sentence,” see T.C.A. § 41-1-605(a), and, as we have noted above, it provides for the possibility of
successive filings, id. § 41-1-605(b). In short, these provisions indicate that the modification of a
regional-workhouse sentence is on the same footing as a local-jail or -workhouse sentence, and a
defendant’s actual custody in a regional workhouse does not preclude a section 41-1-605 motion to
modify.5

                  Thus, the trial court had jurisdiction to determine the defendant’s section 41-1-605

         4
            Both Lewis and the defendant in the present case were sentenced in the Davidson County Criminal Court to
terms in “C.C.A.,” an acronym that signifies Corrections Corporation of America, which “privately manages a local penal
facility for Davidson County.” See id., slip op. at 2 n. 1. Apparently on the basis of the assumption that the “C.C.A.”
facility was a local workhouse, the court in Malcolm Collins Lewis determined that Lewis’ proceeding was properly
brought via Code section 40-35-314(c). As an aside, we note that the Corrections Corporation of America, on its internet
website, lists only one facility in Davidson County, Tennessee, that being the Metro-Davidson County Detention Facility
located at 5115 Harding Place, Nashville. See Corrections Corporation of America, Facilities Listing, available at
http://www.correctionscorp.com/facilities/?state=Tn (last visited July 18, 2008).

         5
           W e acknowledge that a local-jail or -workhouse prisoner may file succeeding applications for sentence
modification no more often than every two months and that a prisoner in a regional workhouse may file succeeding
applications no more often than every three months. Also, for our purposes, we disregard the difference in language of
the two statutory provisions whereby section 40-35-314(c) authorizes multiple filings “to reduce or to alter the manner
of the service” of the sentence and section 41-1-605(b) merely authorizes such filings “to alter the manner of the service.”
W e note that, in its jurisdiction-retention statement, subsection (a) of section 41-1-605 includes both the verbs “modify”
and “reduce.”

                                                            -5-
claim for modification, and the case comes to the appellate court via Tennessee Rules of Appellate
Procedure 3 and 4. Because the motion was not – and did not have to be – channeled through
Tennessee Rule of Criminal Procedure 35, the rightful appeal provision of Rule 35 was not
applicable. See Tenn. R. Crim. P. 35(d). Tennessee Rule of Appellate Procedure 3(b), however,
extends to a defendant a right to appeal from “an order denying . . . probation.” Tenn. R. App. P.
3(b).

                                       II. Adjudication of Merits

                Having at long last attained this plateau, we now address the defendant’s substantive
claim that the trial court erred in determining that he was bound by his plea agreement to serve his
two-year sentence in confinement. The first step in resolving the issue is to review the specific
alternatives available to defendants who wish to plead guilty. Tennessee Rule of Criminal Procedure
11(c)(1) provides:

               In General. The district attorney general and the defendant’s attorney,
               or the defendant when acting pro se, may discuss and reach a plea
               agreement. The court shall not participate in these discussions. If the
               defendant pleads guilty or nolo contendere to a charged offense or a
               lesser or related offense, the plea agreement may specify that the district
               attorney general will:

                       (A) move for dismissal of other charges;
                       (B) recommend, or agree not to oppose the defendant’s request
               for, a particular sentence, with the understanding that such
               recommendation or request is not binding on the court; or
                       (C) agree that a specific sentence is the appropriate disposition
               of the case.

Tenn. R. Crim. P. 11(c)(1).

                 The defendant claims that his plea agreement fell under Rule 11(c)(1)(B); the State
claims that it fell under Rule 11(c)(1)(C). According to the issues joined by the parties in the trial
court, the determination of the proper rubric informs the analysis whether the trial court could
subsequently modify an incarcerative sentence by placing the defendant on probation. In the
alternative, the defendant posits that, even if he submitted a “(C)” plea, modification is still available
via Code section 41-1-605. The State relies upon State v. Grady Hargrove, No. 01S01-9203-CC-
00035 (Tenn., Aug. 9, 1993), and State v. Ernesto Gonsales, No. E2002-02687-CCA-R3-CD (Tenn.
Crim. App., Knoxville, Nov. 14, 2003), for the proposition that the defendant was bound to the
confinement terms of his “(C)” plea agreement.

                  First, we address our standard of review. The trial court has discretion to grant or deny
relief in a section 41-1-605 proceeding, and we review the trial court’s ruling for abuse of discretion.
See Ruiz, 204 S.W.3d at 777-78 (holding that an abuse of discretion standard applies to the review

                                                   -6-
of a Code section 40-35-306(c) proceeding to modify a sentence of split confinement, based upon
court’s analogy to same standard of review of proceedings brought via Tennessee Rule of Criminal
Procedure 35).

               In Grady Hargrove, our supreme court determined that modification of “(C)”
sentences pursuant to Rule 35 was inappropriate based upon the defendants’ having agreed in a plea-
bargaining process to their sentences of confinement. Grady Hargrove, slip op. at 6-7; see State v.
McDonald, 893 S.W.2d 945, 947-48 (Tenn. Crim. App. 1994) (commenting that Grady Hargrove
“strongly suggests that an alteration of a defendant’s sentence is generally prohibited if it violates the
plea agreement entered into under Rule 11[c](1)(C)”).6

                 In Ernesto Gonsales, this court stated:

                [T]he agreement, which called for a specific sentence, was entered into
                pursuant to Rule 11[c](1)(C). Thus, the trial court had no authority to
                modify the defendant’s sentence unless it was required in the “interest
                of justice,” such as a situation involving “unforseen post-sentencing
                developments.” See McDonald, 893 S.W.2d at 947. Because the trial
                court was aware of the [Immigration and Naturalization Service] hold
                [on the defendant] prior to accepting the plea and sentencing the
                defendant to a six-year term, there were no unusual or unforeseen
                circumstances taken into consideration by the order of modification.
                Had the trial court found the terms of the [plea] agreement
                unacceptable, it had the authority to reject the [plea] proposal. Under
                these circumstances, however, the original sentence of six years must
                be reinstated.

Ernesto Gonsales, slip op. at 7.

                 In Ruiz, our supreme court, in reviewing a Code section 40-35-306(c) proceeding to
fully suspend a sentence of split confinement, reiterated the principles of McDonald in defining the
lines of discretion along which a trial court must travel. The court applied the same standard “as that
applied to a [Rule 35] motion . . . : whether post-sentencing information or developments have arisen
that warrant an alteration in the interest of justice.” Ruiz, 204 S.W.3d at 778. Additionally, in
Malcolm Collins Lewis, this court said that a defendant who submitted a “(C)” guilty plea does not
waive a claim for modification pursuant to Code section 40-35-314(c), but such a defendant “may
only be successful on a [section 40-35-314(c) petition] when there have been ‘unforeseen, post-
sentencing facts’ as described in McDonald that make altering the sentence in the interest of justice.”
Malcolm Collins Lewis, slip op. at 6. Thus, the McDonald rule for modifying a sentence based upon
unforeseen, post-judgment facts that implicate sentence modification in the interest of justice has been


        6
         At the time of the decisions in Grady Hargrove and Ernesto Gonsales, the provisions of Tennessee Rule of
Criminal Procedure 11(c)(1) appeared in subsection (e)(1).

                                                      -7-
extended beyond Rule 35 proceedings to two statutory proceedings to modify. We see no reason why
the rule would not also extend, by analogy similar to that employed in Ruiz and Malcolm Collins
Lewis, to proceedings brought via Code section 41-1-605, and we hold that the McDonald rule does
apply to proceedings under this statute as well.

                 In the present case, we conclude that, based upon the limited record before us, the plea
agreement was submitted and approved pursuant to Tennessee Rule of Criminal Procedure
11(c)(1)(C). Although the cases above cited essentially conclude that a defendant does not “waive”
the options for sentence modification by participating in a “(C)” plea agreement, the trial court
disposed of the present motion for modification by determining that the defendant was bound as a
matter of law by his agreed-upon sentence of confinement. Despite that too-narrow basis for denying
the petition, however, we need not remand the case to the trial court because, in the motion hearing,
the defendant presented evidence designed to show that he merited release. The evidence showed his
compliance with institutional requirements and his accomplishments in completing rehabilitative and
educational programs while incarcerated. We point out, however, that “a defendant’s compliance is
not, in and of itself, a sufficient development to require that he . . . be placed on probation earlier than
initially ordered.” Ruiz, 204 S.W.3d at 778. We acknowledge that the testimony also revealed certain
familial facts – the needs of his two children and of his parents who were “getting older”; however
these facts basically existed at the time of sentencing. Thus, the evidence presented at the hearing
pointed to no unforeseen, post-sentencing facts.

                In the end, therefore, we hold that although the trial court abused its discretion in
applying an absolute legal standard to deny relief, the error was harmless because it did not affect the
result in the case. See Tenn. R. App. P. 36(b).

                                             III. Conclusion

                Our conclusion is that the order of the trial court is affirmed.


                                                          ___________________________________
                                                          JAMES CURWOOD WITT, JR., JUDGE




                                                    -8-
