State v. CrookState v. Crook
- Reporters:
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- Before:
- Tipton
OPINION
JOSEPH M. TIPTON, Judge.Thе defendant, Bobby Crook, appeals as of right from the judgment of the trial court resentencing him to consecutive ten-yeаr sentences upon revoking his community corrections sentences. He was originally sentenced to concurrent ten-yеar terms. The defendant contends that the trial court erroneously imposed the consecutive sentences without first conducting a sentencing hearing and making findings that consecutive sentences were appropriate. The judgment of the trial court revoking the defendant’s community corrections sentences is affirmed. However, the consecutive sentences аre vacated, and this cause is remanded for a new sentencing hearing.
The defendant was originally indicted for especially aggravated kidnapping and aggravated rape, Class A felonies. He entered into a plea agreement with the state and pled guilty to facilitation of especially aggravated kidnapping and facilitation of aggravated rаpe, Class B felonies. As part of the agreement, the defendant was sentenced as a Range I, standard offender, to concurrent ten-year sentences
I.
Initially, we note that a trial court has the power, upon revocation of a community corrections sentence, to resentence a defendant to a period of incarceration uр to the maximum for the offense originally committed, with credit for time already served in the community corrections program. T.G.A. § 40-36-106(e)(4). A trial court may impose a sentence greater than the original sentence without offending the Double Jeopardy Clаuse of either the United States Constitution or Tennessee Constitution. State v. Griffith, 787 S.W.2d 340, 341-42 (Tenn.1990).
The purpose of allowing the trial court to impose а new sentence is that the nature, circumstances and frequency of the defendant’s violations may “warrant a different typе of alternative sentence or incarceration.” State v. Ervin, 939 S.W.2d 581, 583 (Tenn.Crim.App.1996). The trial court may not, however, use the statute for thе sole purpose of punishing a defendant for violating the community corrections sentence. Id.
II.
The Tennessee Criminal Sеntencing Reform Act and the Community Corrections Act are in pari materia. State v. Taylor, 744 S.W.2d 919, 920 (Tenn.Crim.App.1987). Consequently, when a trial court opts to resentence a defendant to a sentence more severe than the original, the trial court must conduct a sentencing hearing pursuаnt to the principles of the Sentencing Reform Act. State v. Cooper, 977 S.W.2d 130, 132 (Tenn.Crim.App.1998); Ervin, 939 S.W.2d at 583; State v. Keith F. Batts, No. 01C01-9210-CR-00326, Davidson County, slip op. at 5, 1993 WL 39749 (Tenn.Crim.App. Feb. 18, 1993).
It is mandatory for the trial court to state on the record the reasоns for imposing a new sentence.
State v. Gauldin,
737 S.W.2d 795, 798 (Tenn.Crim.App.1987). The Sentencing Reform Act provides that the record of the sentencing heаring “shall include specific findings of fact upon which application of the sentencing principles was based.”
The purрose of the statutory requirements is to ensure that a proper record is made for appellate review. Ervin, 939 S.W.2d at 584. The fact that this court is required to make a de novo review does not in any way diminish the trial court’s statutory duty to comply with the guidelines and mandates of the Sentencing Reform Act. Gauldin, 737 S.W.2d at 798.
III.
We believe the instant case is similar to
State v. Timothy Lemont Wade,
No. 01C01-9303-CR-00092, Davidson County, 1993 WL 488308 (Tenn.Crim.App. Nov. 24, 1993), and
Batts.
In each case, the trial court informed the defendant at the sentencing hearing that he would be sentenced to a maximum sentence if his community corrections sentence were ever revoked. In each instance, the defendant agreed to community corrections with this understanding. When the community corrections sentences in those cases were revoked, the respеctive trial courts immediately imposed maximum sentences without making the findings required by the Sentencing Reform Act. This court remand
In the instant case, the trial court erred in setting a sentence, before revocation of the community corrections sentences, that would be automatically imposed in the event the community corrections sentences were revoked. This is thе same situation condemned in Wade and Batts in that the trial court increased the effective sentence solely for the purpose of punishing the defendant for violating the terms of the community corrections sentence. See Ervin, 939 S.W.2d at 583. Here, as there, the practice is improper.
IV.
We are not unmindful of the Sentencing Rеform Act’s provisions dispensing with the sentencing hearing when the district attorney general and the defendant agree upon a sеntence which is accepted by the trial court.
See
We are also mindful that the state in the original plea negotiations reduced the charges as a рart of the plea agreement. The defendant unequivocally agreed at that time to consecutive sentencing in the event of a future violation and now, in effect, seeks to renege on the agreement. Nevertheless, having established thаt the automatically increased sentences were not authorized, at this juncture this court can only remand for a new sentencing healing. Therefore, as the defendant was not afforded the requisite hearing upon revocation as provided by the Sentencing Reform Act, this case must be remanded for such a sentencing hearing. 2
JOE G. RILEY and JAMES CURWOOD WITT, Jr., JJ., concur.
Notes
. The propriety of sentencing the defendant to community corrections in view of the nature of these offenses is not an issue before this court in this appeal.
. This court does not mean to imply that consecutive sentences could not be imposed following a sentencing hearing. Consecutive sentences may’ validly result from a violation of community corrections if based upon proper grounds after a new sentencing hearing.