        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs October 21, 2009

         STATE OF TENNESSEE v. ROBERT CHRISTOPHER DIAL

                      Appeal from the Circuit Court for Maury County
                        No. 12614 & 12615 Stella Hargrove, Judge



                    No. M2008-02330-CCA-R3-CD - Filed April 13, 2010


In Maury County on June 17, 2002, Appellant pled guilty to two counts of attempted aggravated
sexual battery. He was sentenced to two six-year sentences to be served consecutively. He was
placed on probation. After violating probation, he was placed on Community Corrections. On July
10, 2008, Appellant’s Community Corrections officer filed a violation report. After a hearing, the
trial court revoked Appellants Community Corrections sentence and ordered him to serve his full
twelve year sentence. On appeal, Appellant argues that the trial court abused it discretion in
revoking his Community Corrections sentence and that the trial court did not have authority to
impose the full twelve year sentence. We conclude that the trial court did not abuse its discretion
in revoking the Community Corrections sentence. However, we agree with Appellant that he had
previously served the first six-year consecutive sentence, and the trial court can only impose the
remaining six-year sentence. Therefore, we affirm the revocation of the Community Corrections
sentence, and modify Appellant’s sentence to six years.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part
                                     and Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL, JJ., joined.

Lawrence W. Moon, Jr., Assistant Public Defender, Columbia, Tennessee, for the appellant, Robert
Christoper Dial..

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Mike Bottoms, District Attorney General, and Brent Cooper, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

                                        Factual Background

       On October 8, 2001, the Maury County Grand Jury indicted Appellant for one count of Rape
of a Child and one count of aggravated sexual battery. On June 17, 2002, Appellant pled guilty to
two counts of attempted aggravated sexual battery. Appellant received two consecutive six-year
sentences to be served on probation.

        Appellant had more than one violation leading up to the violation at issue in this appeal. On
May 27, 2003, the trial court revoked Appellant’s probation for failing two drug tests, being in
arrears by $40.00 of his probation fees, and failing to pay court costs. As a result, the trial court
ordered Appellant to serve 120 days in the county jail and the remainder of his sentence on
Community Corrections. On September 21, 2004, the trial court revoked Community Corrections
for testing positive for marijuana, failing to attend sex offender classes, and failing to perform
community service. The Community Corrections sentence was ordered to be reinstated upon
Appellant’s completion of in-patient treatment. On December 2, 2005, the trial court again revoked
Appellant’s Community Corrections based upon violation reports of an arrest for aggravated assault
and vandalism; violation of the sex offender registry; failure to pay court costs and supervision fees;
failing to maintain full-time employment or show proof of searching for employment; testing
positive for marijuana twice, failing to perform community service, and failing to attend sex offender
meetings. The trial court ordered Appellant to serve 180 days in the county jail and the remainder
of his sentence on Community Corrections.

        In June and July 2008, Appellant, his mother and his girlfriend were residing at his
grandmother’s house. The address for his grandmother’s house was listed as his primary residence
for his Community Corrections sentence. On June 24, 2008, a home visit was conducted at his
grandmother’s house and everything was found to be in order.

        On July 2, 2008, Appellant’s mother had an altercation with her boyfriend. As a result of the
altercation, she asked Appellant’s girlfriend to obtain a room at the nearby Days Inn motel.
Appellant and his girlfriend also went to the motel. The boyfriend arrived at the motel and
threatened Appellant’s mother with “getting rid of Appellant” if she did not speak with him. She
refused. Shortly thereafter, the police received a report that Appellant was on probation for sexual
offenses and was in violation of his 6:00 p.m. curfew and was not at his required residence. The
report also stated that Appellant could be found at the Days Inn.

       At 8:50 p.m., Officer Sam Barnes, with the Maury County Sheriff’s department arrived at
the Days Inn in response to the call about Appellant. He witnessed Appellant swimming in the pool
with another gentleman and two children. Appellant immediately exited the pool and came over to
speak with Officer Barnes. Appellant told Officer Barnes that he had to leave his grandmother’s
house because of a problem at the house. When asked if he had notified his probation officer,
Appellant replied that he had not. Officer Barnes recommended to Appellant that he notify his


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Community Corrections officer about his whereabouts and go inside because it was three hours past
his curfew. Appellant told Officer Barnes that he knew he was in violation of his probation. Officer
Barnes stated that Appellant was very cooperative.

        On July 10, 2008, Appellant’s Community Corrections officer, Ms. Faith Dudley, filed an
affidavit of violation. In the affidavit she cited the following violations of Appellant’s Community
Corrections program:


        1) Based on observations by Officer Sam Barnes, on 7-2-08, [Appellant] was at a
        swimming pool at the Days Inn Hotel in Maury Co., TN with children under the age
        of 18 and [Appellant] is a Tennessee Registered Sex Offender.

        2) On 7-2-08, during a home visit performed by Officer Joel Willoughby, [Appellant]
        was not at home. [Appellant] hasa 6 p.m. curfew and he failed to be at home. This
        visit occurred after 6:00 p.m.

        3) [Appellant] has failed to show proof of employment as required.

        4) [Appellant] has failed to pay court cost as required.


On September 18, 2008, the trial court held a hearing to determine whether to revoke Appellant’s
Community Corrections sentence. Ms. Dudley testified at the hearing. She testified that she advises
her offenders that when they have a curfew they are to be in their place of residence by the time of
the curfew. In July 2008, she was under the belief that Appellant lived at his grandmother’s house.
Appellant had not informed her otherwise. Ms. Dudley stated that the last time Appellant had paid
toward his court costs was in January 2008 for an amount of $10.00. As for proof of employment,
the last job Appellant reported to her was CiCi’s Pizza in January 2008, but Appellant never verified
that he was employed at that establishment. She did acknowledge that Appellant reported
consistently between January and July 2008. Officer Sam Barnes testified that on July 2, 2008, he
arrived at the Days Inn at 8:50 p.m. and found Appellant in the pool with two children and another
gentleman.

       Appellant presented evidence that he was at the Days Inn to protect his mother from her
abusive boyfriend. There was also evidence presented of his mental health issues.

        At the conclusion of the hearing, the trial court found that the State had proven that Appellant
had violated his curfew, had failed to show proof of employment, and had failed to pay court costs.
The trial court revoked Appellant’s Community Corrections sentence and ordered him to serve his
full twelve year sentence.

        Appellant filed a timely notice of appeal.


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                                            ANALYSIS

       On appeal, Appellant argues that (1) the trial court abused its discretion in fully revoking
Appellant’s Community Corrections sentence; and (2) the trial court did not have the authority to
impose the full twelve year sentence because the first of the consecutive six year sentences had
expired at the time the alternative sentence was revoked. The State argues that there was sufficient
evidence to support the trial court’s revocation of the Community Corrections sentence. The State
also concedes that the trial court did not have the authority to impose the full twelve year sentence.

        The Community Corrections Act of 1985 was designed to provide an alternative means of
punishment for “selected, nonviolent felony offenders in front-end community-based alternatives
to incarceration.” T.C.A. § 40-36-103. The community corrections sentence provides a desired
degree of flexibility that may be both beneficial to the defendant and serve legitimate societal aims.
State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the defendant meets the
minimum requirements, however, the defendant is not necessarily entitled to a community
corrections sentence as a matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.
1987).

       Once a defendant violates the terms of his community corrections program, the trial court
may revoke the sentence and impose a new one:

       The court shall also possess the power to revoke the sentence imposed at any time
       due to the conduct of the defendant or the termination or modification of the program
       to which the defendant has been sentenced, 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 the community-based alternative to incarceration.

T.C.A. § 40-36-106(e)(4). In other words, the trial court may conduct a sentencing hearing, and may
impose a greater sentence than the original sentence. Griffith, 787 S.W.2d at 342; State v. Cooper,
977 S.W.2d 130, 132 (Tenn. Crim. App. 1998).

        In State v. Harkins, 811 S.W.2d 79 (Tenn. 1991), our supreme court ruled that a community
corrections sentence is so similar to a probationary sentence as to require the application of the same
standard of review. Our general law provides that a trial court may revoke a sentence of probation
upon finding by a preponderance of the evidence that the defendant has violated the conditions of
his release. T.C.A. § 40-35-311(e); Stamps v. State, 614 S . W.2d 71, 73 (Tenn. Crim. App. 1980).
On appeal, a revocation will be upheld absent an abuse of discretion. In order to establish that the
trial court has abused its discretion, the defendant must show that there is no substantial evidence
to support the determination that he violated the terms of his sentence. Harkins, 811 S.W.2d at 82
(citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980). Relief can be granted only when “‘the trial court’s logic and reasoning
were improper when viewed in the light of the factual circumstances and the legal principles


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involved.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001)(quoting State v. Moore, 6 S.W.3d
235, 242 (Tenn. 1999)). It is incumbent upon the trial judge to exercise a conscientious and
intelligent judgment. See State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

       We conclude that the trial court did not abuse its discretion by revoking Appellant’s
Community Corrections Sentence. Appellant has failed to show that there is a lack of substantial
evidence to support the trial court’s determination that he violated his curfew, that he had failed to
pay court costs, and that he had failed to prove employment. There was more than sufficient
evidence presented at the revocation hearing to support the trial court’s conclusions.

         After finding a violation of probation and determining that probation should be revoked, a
trial judge can: (1) order the defendant to serve the sentence in incarceration; (2) cause execution of
the judgment as it was originally entered, or, in other words, begin the probationary sentence anew;
or (3) extend the probationary period for up to two years. See T.C.A. §§ 40-35-308(c), -311(e); State
v. Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999).

        In the case at hand, Appellant was sentenced to two six-year sentences to be served
consecutively for an effective sentence of twelve years. Upon revocation of the community
corrections sentence, the trial court ordered that Appellant serve the twelve year sentence in its
entirety. However, if a defendant is serving consecutive suspended sentences on probation, only the
suspended sentences that have not already been served in full may be revoked. State v. Raymond
Kurt Bryant, No. M2005-02467-CCA-R3-Cd, 2006 WL 2738107, at *2 (Tenn. Crim. App., at
Nashville, Sept. 26, 2006)(citing State v. Anthony, 109 S.W.3d 377, 380-81 (Tenn. Crim. App.
2001). Although Bryant and Anthony are probation cases, as the State concedes, they are applicable
to a community corrections sentence as well.

       Appellant’s judgment was entered June 18, 2002. He received jail credit toward the first six
year sentence from November 5, 2001 to June 18, 2002. Therefore, he began serving his sentence
on November 5, 2001. The first six-year sentence would have expired on November 5, 2007, eight
months before the current violation report was filed.

       Therefore, Appellant’s sentence must be modified to six years.

                                          CONCLUSION

        For the foregoing reasons, we affirm in part and modify in part and remand for entry of a
corrected judgment in accordance with this opinion.


                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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