IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED JANUARY SESSION, 1999 April 16, 1999 Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9803-CR-00145 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON . CHE RYL BLAC KBU RN, EDWARD LORENZO SAMUELS, ) JUDGE ) Appe llant. ) (THEFT OF PROPERTY)

FOR THE APPELLANT: FOR THE APPELLEE: KARL DEAN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter JEFFREY A. DeVASHER TIMOTHY BEHAN Assistant Public Defender Assistant Attorney General (On A ppea l) 2nd Floor, Cordell Hull Building Fifth Avenue North RALPH W. NEW MAN Nashville, TN 37243 (Assistant Pu blic Defende r) 1202 Stahlman Building VICTO R S. JO HNS ON, III Nashville, TN 37201 District Attorney General (At Hearing) SHARON L. BROX Assistant District Attorney General Washington Square, Suite 500 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Defen dant, Edward Lorenzo Samuels, appeals as of right the Davidson Coun ty Criminal Court’s revocation of his co mm unity co rrection s sen tence . In this appe al, Defendant argues that the trial court arbitrarily determined that Defendant shou ld receive the maximum sentence and that the co urt did not have the authority, or in the alternative, erred, in ordering his sentence to be served consecutively to an unrelated, previously-imposed sentence. After a careful review of the record, we affirm the ju dgme nt of the trial co urt.

Defendant pled guilty on December 10, 1996, to theft of property of the value of $1,000 or more but less th an $10 ,000 in D ivision III of the D avidson Coun ty Criminal Court. See Tenn. Code Ann. § 39-14-103; 39-14-105(3). He was sentenced as a Ra nge II Mu ltiple Offend er to six (6) ye ars to be served conc urren tly with a previously imposed five-year sentence in an unrelated case for selling cocaine (Indictment number 96-B-674 in Division IV of the Davidson County C riminal Court).

On July 17, 1997, Defendant filed a petition for a suspended sentence, and on Octo ber 17, 1997, the trial court placed Defendant on community corrections. In doing so, the court stated the following: [I]f I were to do this, one of the things holding over your head is I could almost guarantee you an eight-year sentence consecutive, if you w ere to violate this; do you understand what that means, because you’ve got a reco rd that would justify it, if we had a sentencing hearing. No question about it.

...

I will tell you that I will remember this, and I want General Brox to write it down on he r file that if you violate this, we will have a little sentencing hearing, and yo u are p robab ly going to get eight years consecutive.

-2- The trial court also ordered that Defendant reside in a halfway house for at least one (1) year up on his rele ase from custody .

On January 23, 1998, a warrant was issued charging Defendant with violating the terms of his community corrections sentence. The warrant alleged that Defendant had failed to report for scheduled appointments and that he had been arrested for crimina l trespass ing.

At a hearing on March 6, 1998, the trial court found that Defendant had indeed violated the terms of his com munity corrections, and Defendant takes no real issue with that finding. It is clear that Defendant violated the terms of his sentence which allowed him to be released in the community. During the revocation hearing, the following exchange occurred: State: Judge, the last time we were here on his petition for suspended sentence, my note indicate [sic] that you told him if he violated, he was getting eight years consecutive to Division IV.

Court: I probab ly told him th at.

Defen dant: Yeah, you did.

Court: So you are wanting seven, but you just want them c oncurre nt?

Defen dant: Yes, ma’am.

Court: Oh, okay. You are trying to renegotiate. Let me see the record.

...

State: And you remember sitting in here w hen th is Judge suspended your sentence?

Defen dant: Yes, ma’am, I do.

-3- State: And you reme mber her saying to yo u that if you got violated, you are going to get eight years consecutive to Division IV?

Defen dant: Yes.

State: You remember that; don’t you?

Defen dant: Yes.

Following a resen tencing h earing, the trial court revo ked De fendan t’s comm unity correc tions s enten ce, inc rease d the le ngth o f his sen tence from s ix to eight years, and ordered the sente nce to be served c onsec utively to the previously-imposed sentence (Indictment number 96-B-674). On this appeal, Defendant argues that the trial court arbitrarily revoked his community corrections sentence. He also argues that the trial court did not have the authority, after rev oking the comm unity corrections sentence, to restructure the sentence by ordering it to be served consecu tively with the previously-imposed sentence from another court. In the alternative, Defendant argues that if the court had such authority, the trial judge erred or a bused her discre tion in so se ntencing Defen dant.

Defendant concedes that the trial court has the authority to resentence a defendant who violates the term s of a sentenc e in comm unity corrections.

Specifically, the statutory authority is as follows: The court s hall also possess the power to revoke the sentence imposed at any time due to the condu ct of the defendant or the termination or modification of the program to which the defendant has been sentenced, and the court m ay resen tence the defendant to any approp riate sente ncing alterna tive, including incarceration, for any period of time up to the maximum sentence provided for the offense committed, less any time a ctually served in any community-based alternative to incarceration.

-4- Tenn. Code Ann. § 4 0-36-10 6(e)(4). However, when the trial court resentences the defendant to a sentence that exceeds the length o f the original sentence, the trial court must conduct a sentencing hearin g pursuant to the Tennessee Criminal Sentencing Reform Act of 19 89. See Tenn. Code Ann. § 40-35-209(a). Although an increase is permitted, the new sentence may not exceed the range of the original senten ce. State v. P atty, 922 S.W .2d 102 , 103 (T enn. 19 95).

In State v. Griffith, 787 S.W.2d 340 (Tenn. 1990), our supreme court rejected a double jeopardy challenge to the constitutionality of the above referenced statute.

In Griffith, the court h eld as follow s: The above statutes reflect the policy that the sentencing of a defendant to a com munity b ased a lternative to incarceration is not final, but is designed to provide a flexible alterna tive that c an be of ben efit both to the defendant and to society and allows the court to monitor the defendant's conduct w hile in the co mm unity corrections program . A defen dant sentenced under the Act has no legitimate expectation of finality in the severity of the sente nce, b ut is placed on notice by the Act itself that upon revocation of the sentence due to the conduct of the defend ant, a greater sentence m ay be im pose d. Th is being so, the decision to resentence a defendant to a sentence greater than his original sentence does not subject the defendant to multiple punishments for the same offense; rather, the practice reflects the need to alter the defen dant's sentence in light of the fac t that the court's initial sentence to a community based alternative to incarceration was not effective. The defendant not being subjecte d to mu ltiple punish ments for the sam e offense , there is no vio lation of th e gua rantee s aga inst do uble jeopard y. Id. at 342 (cita tion om itted).

This court has previously observed that the provisions of the resentencing statute do not permit the trial court to arbitrarily establish the length of the new sentence nor may the statute be used by trial courts for the sole an d exclusive -5- purpose of punishing the accused for violating the provisions of a community corrections senten ce. See State v. Timothy Lemont Wade, C.C.A. No. 01-C01-9303-CR-00092, Davidso n Cou nty (Tenn. Crim. App., Nashville, Nov. 24, 1993). At the resentencing hearing, the trial court is to conduct the sentencing hearing and approach the sentencing of the defendant in the same manner as if the court were senten cing the defen dant initially, except that the cou rt may consider the fact that com munity c orrection s was n ot succe ssful. See State v. Carl Steven McG ill, C.C.A. No. 03C01-9409-CR-00345, Blount County (Tenn. C rim. App ., Knoxville, Sept. 19, 1995). In other words, the trial cou rt must state on th e record its reasons for imposing a new sentence and must make specific findings of fact upon which ap plication of th e sente ncing prin ciples wa s base d. See Tenn. Code Ann. §§ 40 -35-209(c), 40 -35-210(f)-(g).

When there is a challenge to the length, range or man ner of se rvice of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401 (d). This presumption is "conditioned upon the affirma tive sho wing in the record that the trial court considered the sentencing principles and all relevant fa cts and circums tances ." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the appellant to show th e impro priety of the s entenc e.

Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any -6- statem ents made by the defendant in his own beha lf; and (7 ) the de fenda nt's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103 and -210; State v. S mith, 735 S.W .2d 859 , 863 (T enn. C rim. App . 1987).

In sentencing Defendant, the trial court stated the following: All right, [Defendant], you are here before the [c]ourt on a Com munity Corrections violation. I have determ ined that, in fact, you have violated. The State has put on sufficient proof to indicate to me, and now the question I have is you were senten ced as a Ran ge II offende r. The range on this felony is then fou r to eight yea rs. It’s a Rang e II, D felony.

The range is fo ur to eight, a nd my is sue is two ; that is, what is the length of your sentence going to be, and the other is whether or not it is run concurrent or consecutive to the one in Division IV.

I’m going to find the following enha ncing factors in this case. One, that you have a previous history of criminal convictions or crim inal be havior in addition to those necessa ry to establish the appropriate range. Looking at your record, [Defendant], you have so many prior convictions for misdemeanors and felonies, you are more than a Range II offender from what I c an tell. I’m going to find that fac tor, bas ed on your pr ior reco rd, whic h I’m going to make an exhibit to this hearing.

You have a previous history of unwillingness to comply with the conditions of a sentence involving release in the commu nity. Also, this conviction, wh ich is a felony, was committed while you were on probation in 95-A-571.

I’m going to, therefore, sentence you to eight years and I’m giving th ose facto rs great w eight.

I find nothing to mitigate. I have looked at all of the mitigating factors that are listed in th e statu te. I’m considering the principles of sentencing, arguments, characteristics of the crime, and I sentence you to eight years.

With regard to whether or not this should be c onsecutive or concu rrent, I’m go ing to find that you are a professional criminal who has devoted your, who has know ingly devoted yourself to criminal acts as a major source of livelihood, and, two, you are an offender whose record of criminal activity is extensive.

-7- I also find that the agg regate term reason ably relates to the severity of the offenses, and it is necessary to protect the pub lic from furth er seriou s cond uct.

Based on all of these things, you have been given more than one chance to do everything. You con tinue to viola te the law, and then don’t even follow through on your Community Corrections program; therefore , [Defend ant], if you would stand.

In IF-8702 , I’m going to sentence you a s a Ran ge II offender to eight years as a multiple offender. That will have to be served in the Department of Corrections [sic] because I’m going to order that it be served consecutive to your case in Division IV, which was 96-B-674.

First, Defendant argues that the court’s comment to Defendant that he was trying to “renegotiate” his sentence shows that the court had already decid ed it wo uld sentence Defendant to the maxim um before hearing the proof. However, we do not find that the trial court acted arbitrarily in increasing Defendant’s sentence to the maximum within his range. As a Range II multiple offender convicted of a Class D felony, Defendant was eligible for a sente nce of fou r to eight yea rs. See Tenn. Code Ann. § 40-35-11 2(b)(4). Initially, Defendant was sentenced to six years, but following the revocatio n of com munity c orrection s for crimin al trespas sing and a failure to report to his corrections officer, Defendant was sentenced to eight years, the statutory maxim um. T he trial court specifically found three enhancement factors and no mitigating factors. Defendant obviously has a previous history of criminal convictions or crim inal be havior in add ition to those necessary to establish the approp riate range. T enn. C ode An n. § 40-35-114 (1). Prior to the commission of the offenses herein, the Defendant had at least 17 prior convictions. Because it is obvious that some of these convictions arose from actions of the Defenda nt while he was on probation, it is clear that the Defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the -8- community. Tenn. Code A nn. § 40-35-1 14(8). Also, Defendant’s felony conviction in this case was committed while he was on probation. Tenn. Code Ann. § 40-35- 114(13)(c). The court gave great weight to the enhancement factors and increased the length of the sentence two years. Ba sed on the foreg oing, the tria l court, des pite its comments about increasing Defe ndan t’s sen tence prior to th e hea ring, ce rtainly did not act arbitrarily in imposing the maximum sentence.

Next, Defendant argues that the trial co urt did not h ave the a uthority “to change the sentence by ordering that it be served consecutively to an unrelated sentence in a different court when the original judgment provided for concurrent senten ces.” This Court has upheld the legality of a modification of concurrent sentences to consecutive sentences on multiple counts of the same case after revocation of a community corrections s entenc e. See McG ill, C.C.A. No. 03C01- 9409-CR-00345, slip op. at 3. W hile the imposition o f consecutive se ntences by a trial court may be erroneous because not warranted under the facts and sentencing laws, cons ecutive sente nces for mu ltiple co nviction s are n ot con sidere d illegal sentences. Id. We conclude that any lawful sentence within the defendant's range which is justified by the facts, circum stances and sentencing laws and principles may be ordered by the trial court in resentencing a defenda nt after a community correction s senten ce has been re voked. Id.

Howeve r, Defen dant su bmits that the “fundamental concepts of justice” violated in State v. Patty, were violated in the case sub judice by the trial court modifying two unrelated sentences. 922 S.W.2d at 104. We disagree. In Patty, the supreme court pointed out that while Tennessee Code Annotated section 40-36- 106(e)(4) permits the trial court to resentence a defendant to “any period of time up -9- to the maximum sentence provided by law fo r that offe nse,” th at sec tion sh ould be read in pari mate ria with the preceding section, 40-36-106(e)(2) which provides that a community corrections sentence shall be for “any period of time up to the maximum sente nce w ithin the appropriate sentence ra nge.” 922 S.W .2d at 104 . In the instant case , although the statute s do no t expre ssly allow a trial co urt, upon revocation of a community corrections sentence, to change the manner of service of the sente nce in rela tion to a se parate, u nrelated case, no thing in the statutes expre ssly disallows it. Therefore, w e find the trial court acted within its discre tion in doing so.

Finally, Defendant argues that even if the trial court h ad the a uthority to order the consecutive sentences for unrelated convictions, that it nonetheless erred or abused its discretion in doing so. Howev er, this re cord s uppo rts the tria l court’s finding that Defendant has established himself as a professional criminal who has knowin gly devoted himself to criminal acts as a major source of livelihood. See Tenn. Code Ann. § 40-13-1 15(b)(1) . We also conclude that the record supports the finding by the trial court that this Defendant is an offender whose record of criminal activity is extensive. See Tenn. Code Ann. § 40-35-115(b)(2). The record further provides sufficient proof that Defendant’s sentence is reasonably related to the severity of the offenses a nd is necess ary to prote ct the p ublic from further criminal acts. See State v. Wilkerson, 905 S.W.2d 933 (T enn. 19 95). The effective sentence of thirteen (13) years for theft and for the sale of cocaine is also congruent with the general principles of sentencing . Accordingly, the co nsecutive sen tences were properly im posed by the trial co urt.

Based on all the foregoing, the judgment of the trial court is affirmed.

-10- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ JERRY L. SMITH, Judge

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