                                                                                           08/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs July 24, 2018 at Knoxville

                 STATE OF TENNESSEE v. BENNY S. TOWNS

                Appeal from the Circuit Court for Rutherford County
                          No. 58448 Royce Taylor, Judge
                     ___________________________________

                           No. M2017-02292-CCA-R3-CD
                       ___________________________________


The defendant, Benny S. Towns, appeals from the entry of an order denying his “Motion
to Discharge Community Supervision.” On appeal, the defendant asserts the trial court
erred in not conducting a hearing on the motion and requests the matter be remanded for
the same. Following our review of the record, we conclude the defendant’s motion is
premature and he is not entitled to relief.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT L. HOLLOWAY, JR., JJ., joined.

Bert W. McCarter, Murfreesboro, Tennessee, for the appellant, Benny Sherman Towns.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and Hugh Ammerman,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                            Procedural and Factual History

       On July 13, 2006, the defendant pled guilty to attempted rape of a child under
Tennessee Code Annotated section 39-13-522. The trial court imposed a sentence of one
year in confinement followed by nine years of probation. According to the judgment
form included in the appellate record, the defendant’s guilty plea subjected him to
community supervision for life and required him to comply with the rules of the sex
offender registry, to pay restitution, to submit to a psychosexual evaluation, and to refrain
from contacting the victim or her family. If he violated the terms of probation, the
defendant agreed to serve the remainder of his sentence in confinement and to waive his
right to request a suspended sentence for the same.

       According to the defendant, he completed his probation term without incident on
July 16, 2016. On May 16, 2017, the defendant filed a “Motion to Discharge Community
Supervision.” In the motion, the defendant claimed he was unaware of the community
supervision sentence imposed by his guilty plea, stating:

              Approximately eight (8) months after his release from probation,
       [the] [d]efendant discovered that, as a condition of his guilty plea, he is
       subject to community supervision for life. [The] [d]efendant respectfully
       asserts that he was never apprised of this requirement when he entered his
       guilty plea. In fact, he did not learn about the requirement until almost one
       (1) year after he had completed probation.

Additionally, the defendant claimed he had followed and met all the conditions of his
probation and “is fully rehabilitated and has conquered the inclinations that led him to his
current position.”

       The trial court addressed the defendant’s motion in open court on October 23,
2017, prior to entering an order denying the same. Though the defendant was prepared
for a hearing on the motion, the trial court determined a hearing was unnecessary, stating:

              I think I am bound by the, by the judgment that’s been entered. And,
       and while I recognize you’ve got witnesses here to put on for a hearing, I
       don’t think I’ve, I’ve got any, I think this is something that’s going to have
       to go to the Court of Appeals to see if I’ve got any authority to even have a
       hearing. I don’t think I have the authority to have a hearing or to modify
       this sentence that was entered in, looks like, I see the date on this is July 1,
       2006, and I think the judgment has been satisfied as far as this [c]ourt.

                                          Analysis

       On appeal, the defendant contends the trial court erred in ruling on his motion
after only “informal comments” from counsel. He also contends “there is no adequate
record upon which this Court can even conduct a review of the proceedings.” In
response, the State maintains “the trial court correctly concluded that it had no power to
discharge [the defendant] from community supervision.”

        The defendant’s motion seeks release from a sentence of community supervision
for life as a term of his guilty plea. The appellate record, however, makes clear the
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defendant cannot satisfy the procedural requirements necessary to petition for the
requested relief. On July 13, 2006, the defendant pled guilty to attempted rape of a child
under Tennessee Code Annotated section 39-13-522. A conviction for attempted rape of
a child carries with it an imposed sentence of community supervision for life. Tenn.
Code Ann. § 39-13-524 (a)(3). As required, the judgment form for the defendant’s guilty
plea reflects the imposition of community supervision for life. Tenn. Code Ann. § 39-13-
524 (b). As noted in his motion, the defendant’s community supervision sentence began
on July 16, 2016, upon the completion of his nine-year probationary sentence. Tenn.
Code Ann. § 39-13-524 (c). A defendant serving a community supervision for life
sentence can petition the sentencing court for release after fifteen years of service. Tenn.
Code Ann. § 39-13-525 (a). Because the defendant’s sentence of community supervision
for life began on July 16, 2016, the defendant’s present motion is premature by
approximately fourteen years. The defendant is not entitled to relief.

        The defendant also contends the trial court erred in not providing him a hearing on
his motion. However, because the defendant failed to meet the statutory requirements of
Tennessee Code Annotated section 39-13-525 (a), he cannot establish a colorable claim
which would require a hearing. See generally State v. Wooden, 478 S.W.3d 585, 592-94
(Tenn. 2015) (stating “a Rule 36.1 motion must include factual allegations concerning the
basis of the illegal sentence claim in order to state a colorable claim for relief”); Burnett
v. State, 92 S.W.3d 403, 406 (Tenn. 2002) (requiring a post-conviction petition “to state a
factual basis for the grounds alleged” to avoid “immediate dismissal of the petition”);
State v. Robert Clarence Payne, No. M2006-01662-CCA-R3-CD, 2007 WL 92355, at *1
(Tenn. Crim. App. Jan. 11, 2007), no perm. app. filed (noting “a motion for reduction of
sentence may be dismissed summarily without a hearing if no developments have arisen
requiring redress by the sentencing court”). Accordingly, the defendant’s request for
remand is without merit.

                                     CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.



                                              ____________________________________
                                               J. ROSS DYER, JUDGE




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