              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE               FILED
                                 JUNE 1996 SESSION
                                                                    August 22, 1996

                                                            Cecil W. Crowson
STATE OF TENNESSEE,              *                        Appellate Court Clerk
                                        #01C01-9511-CR-00360

             APPELLEE,           *      WILSON COUNTY

VS.                              *      Hon. J.O. Bond, Judge

TONY BARRETT,                    *      (Community Corrections Revocation)

             APPELLANT.          *



For the Appellant:                      For the Appellee:

Comer L. Donnell                        Charles W. Burson
District Public Defender                Attorney General & Reporter
                                        450 James Robertson Parkway
Howard L. Chambers                      Nashville, TN 37243-0493
Asst. District Public Defender
213 N. Cumberland Street                Cyril V. Fraser
Lebanon, TN 37087                       Asst. Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        Tom P. Thompson, Jr.
                                        District Attorney General

                                        David Durham
                                        Asst. District Attorney General
                                        111 Cherry Street
                                        Lebanon, TN 37087-3609




OPINION FILED: ___________


REVERSED AND REMANDED


William M. Barker, Judge
                                           OPINION

                 The appellant, Tony Barrett, appeals from the Wilson County Criminal Court’s

judgment revoking his community corrections sentence.1 He contends that the trial court

erred not only in revoking the sentence but also in resentencing him to an excessive term.

We agree that the trial court committed reversible error. The case is remanded for

resentencing in accordance with this opinion.



                 In May of 1992, the appellant entered guilty pleas to two counts of conspiracy

to distribute cocaine, a class C felony, one count of sale of a counterfeit controlled

substance, a class E felony, and three counts of possession of marijuana, a class A

misdemeanor. For the conspiracy convictions, the appellant was sentenced to three years;

six months of the sentences were to be served in the county jail and the balance was to

be served on supervised probation. For the counterfeit controlled substance conviction,

the appellant was sentenced to two years of supervised probation. For each of the

possession of marijuana convictions, the appellant was sentenced to eleven months and

twenty nine days of supervised probation.



                 The sentence for the sale of a counterfeit controlled substance conviction

was to run consecutively to the sentences for the conspiracy convictions; the remaining

sentences were to run concurrently. Thus, the effective sentence was five years: six

months to be served in the county jail and the balance to be served on supervised

probation.



                 On March 27, 1995, a warrant was issued seeking the revocation of the

appellant’s community corrections sentence.            At the revocation hearing, Francis

Hemontoler, a community corrections officer, testified that the appellant had been placed


             1
                 The parties have referred to the appellant as “Anthony Dale Barrett.” The
   indictment refers to the appellant as “Tony Barrett.” This court’s policy is to use the
   name charged in the indictment.

                                                2
in the community corrections program on May 14, 1992. The revocation warrant was

issued because the appellant had tested positive for marijuana and had failed to report his

arrests for two counts of assault. Hemontoler testified that the appellant had been paying

$50 a month toward his court costs and fines, and that he still owed $5800 in fines.



              David Vincent Ashby testified that in December of 1994, he was visiting Tracy

Westmoreland, the appellant’s former girlfriend, when the appellant arrived. An altercation

ensued. The appellant threatened “to kill” Ashby and tried to get in Ashby’s car. The

police arrived and the appellant was arrested.2



              Tracy Westmoreland testified that she had dated the appellant for three years

and that the couple had a daughter together. Westmoreland testified that the appellant

had a history of physically abusing her. In December of 1994, the appellant showed up at

her house and wanted to talk. David Ashby was also present. The appellant followed

Westmoreland around the house; when she tried to call the police, the appellant hung up

the phone. At one point, the appellant grabbed a knife and tried to cut his own wrists.

Police eventually arrived and the appellant was arrested.



              Westmoreland described a second incident that occurred at her house in

January or February of 1995, again with David Ashby present. The appellant “trapped”

Westmoreland inside of Ashby’s car, choked her, and spit on her. When she slapped the

appellant, he started punching her. Westmoreland called the police after she got to work.3



              The appellant testified that he had not used marijuana or any other controlled

substance. He believed that he tested positive for marijuana because he had been riding


          2
                 According to the community corrections officer, the appellant was arrested
   for this assault on December 12, 1994.
          3
                 The community corrections officer testified that the appellant was arrested
   for this assault on March 7, 1995.

                                             3
to work with someone who was smoking marijuana. He realized that the explanation

“sound[ed] bogus.”



              The appellant denied that he ever physically abused Tracy Westmoreland.

In December of 1994, he went to Westmoreland’s home to visit his daughter. He argued

with Westmoreland, but he did not strike her. He denied threatening to kill David Ashby

but admitted threatening to “kick his ass.” During the second incident, the appellant was

picking up his daughter at Westmoreland’s home when an argument ensued.

Westmoreland slapped him and he slapped her back. He denied choking, punching, or

kicking her. He acknowledged that he was later convicted of assault for this incident, and

that he was sentenced to eleven months and twenty-nine days probation.



              The appellant testified that he had enrolled in a domestic violence program

to seek help. He also was seeing a psychologist and taking medication for manic

depression. Geraldine Griffin, the appellant’s grandmother, testified that she was with the

appellant at Westmoreland’s home in December of 1994. She saw the appellant try to put

his arms around Tracy Westmoreland. Griffin also testified that she knew the appellant

was going to counseling. Judy Jarrett, the appellant’s mother, testified that the appellant

had been seeing a psychologist since December of 1994. She thought the appellant was

making improvement.



              The trial court revoked the alternative sentence based on the appellant’s

behavior toward Tracy Westmoreland and David Ashby and his failure to pay fines in a

more timely fashion.     The court increased the appellant’s sentence for one of the

conspiracy convictions from three years to the maximum of six years. The sentence was

still to run consecutively to the sentence for sale of a counterfeit controlled substance. The

appellant was to serve one year in the county jail, and the balance, now eight years, was

to be served on supervised probation.



                                              4
                                              I

              The appellant contends that the trial court erred in revoking his community

corrections sentence. He states that “considering his good work record, his regular

payment of fines, his regular reporting to the probation officer, his attendance of counseling

sessions, and the circumstances surrounding the charges against him, his conduct was not

sufficient justification for revocation.” The State maintains that the evidence was sufficient

in this respect.



              In a revocation proceeding, the State carries the burden of establishing the

violation by a preponderance of the evidence. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.

1991). The trial court has the discretion to revoke the community corrections sentence

upon a finding that the defendant has violated the conditions of the agreement; the trial

court may then order the defendant to serve his sentence in confinement. Id. Before a trial

court may revoke a community corrections sentence, the record must contain sufficient

evidence to permit the court to make an intelligent and conscientious decision. Id. In

reviewing a trial court’s determination, we may reverse only if “the record contains no

substantial evidence to support the conclusion of the trial judge that a violation of the

conditions . . . has occurred.” Id.



              Here, the revocation warrants charged two violations: testing positive for

marijuana and failing to report two arrests for assault. The evidence in the record

supported both. The appellant has not shown that the trial court erred in this regard.



                                              II

              The appellant contends that the trial court erred in imposing an excessive

sentence. He argues that the error was compounded by confusion as to whether he was

on supervised probation or community corrections when the revocation warrants were

issued. The appellant states on appeal that “it appears [he] must have been placed on



                                              5
Community Corrections at some point since the violation warrant ... was issued by a

Community Corrections officer.” He notes, however, that “there is no order in the record

placing [him] on Community Corrections.” The State concedes that there is no reference

to a community corrections sentence in the judgments of conviction, but it maintains that

the trial court properly resentenced the appellant.



              The question of whether the appellant was serving probation or community

corrections is crucial to the determination of his sentence upon revocation. “If the trial

judge should find that the defendant has violated the conditions of his 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 and cause the defendant to commence the execution of the judgment as

originally entered....” Tenn. Code Ann. § 40-35-311(d)(1995 Supp.). In other words, when

a court revokes probation, “the original judgment so rendered by the trial judge shall be in

full force and effect from the date of the revocation of such suspension, and shall be

executed accordingly....” Tenn. Code Ann. § 40-35-310 (1990 Repl.).



              By contrast, when a trial court revokes a community corrections sentence,

the court has the authority to resentence the defendant:

              The court shall also possess the power to revoke the sentence
              imposed at any time due to the conduct of the defendant ...,
              and the 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, less any time actually served in any
              community based alternative to incarceration.

Tenn. Code Ann. § 40-36-106(e)(4)(1995 Supp.). 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. John Eric Lipscomb, No. 01-C-01-9506-CR-00185 (Tenn. Crim. App., Nashville,

Feb. 13, 1996). However, “the provisions of the statute do not permit a trial court to



                                             6
arbitrarily establish the length of the new sentences.”       Id. slip op. at 2.    Instead,

resentencing after the revocation of a community corrections sentence must be in

accordance with the Tennessee Criminal Sentencing Reform Act of 1989. See State v.

Taylor, 744 S.W.2d 919, 920 (Tenn. Crim. App. 1987)(Sentencing Reform Act and

community corrections act in pari materia).



              As a result, when a trial court increases the length of the original sentence

after revoking a community corrections sentence, the court must conduct a sentencing

hearing pursuant to the Sentencing Act. Tenn. Code Ann. §§ 40-35-209(a) & -210(a)-(e);

see also State v. Keith F. Batts, No. 01-C-01-9210-CR-00326 (Tenn. Crim. App., Feb. 18,

1993, Nashville). The court must state on the record its reasons for imposing a new

sentence, including what enhancement and mitigating factors were supported by the

evidence. Tenn. Code Ann. § 40-35-210(f) & (g); see Tenn. Code Ann. §§ 40-35-113 &

-114. Moreover the court must indicate the “specific findings of fact upon which application

of the sentencing principles was based.” Tenn. Code Ann. § 40-35-209(c). The new

sentence must be “based on evidence in the record of the trial, the sentencing hearing, the

presentence report, and the record of prior felony convictions filed by the district attorney

....” Tenn. Code Ann. § 40-35-210(g). These provisions are mandatory. See State v.

Gauldin, 737 S.W.2d 798 (Tenn. Crim. App. 1987).



              Thus, whether the appellant was on supervised probation as the judgments

reflect, or in a community corrections program as the parties seemed to agree, the trial

court’s actions were erroneous. Upon revocation of probation, the original sentence

imposed is in effect. Tenn. Code Ann. §§ 40-35-310 & -311.              Upon revocation of

community corrections, the trial court must resentence a defendant in accordance with the

principles described in this opinion.




                                              7
              Accordingly, we remand the case to the trial court for a new sentencing

hearing. In so doing, we note that the trial court must first determine the form of alternative

sentencing the appellant had been serving. Although the judgments reflect probation, the

transcript of the original sentencing hearing is not in the record. It has generally been held

that where a conflict exists between the court’s minutes and the transcript, the transcript

governs. State v. Zyla, 628 S.W.2d 39 (Tenn. Crim. App. 1991); State v. Roscoe C. Smith,

No. 01C01-9502-CR-00031 (Tenn. Crim. App., Nashville, Oct. 12, 1995). In any event,

after making this determination, the trial court must then follow the statutory procedures

outlined herein.



                                                   ________________________________
                                                   William M. Barker, Judge



________________________________
John H. Peay, Judge



________________________________
David G. Hayes, Judge




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