State of Tennessee v. Bradley Ryan Webb

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 26, 2002

STATE OF TENNESSEE v. BRADLEY RYAN WEBB

State Appeal from the Circuit Court for Cocke County

Nos. 7974-7978; Circuit Court for Jefferson County No. 6916, Ben W. Hooper II, Judge

No. E2002-01375-CCA-R3-CD

February 26, 2003

The State appeals the ruling of the Cocke County Circuit Court modifying the sentence of the

Appellee, Bradley Ryan Webb, pursuant to Rule 35, Tennessee Rules of Criminal Procedure. Under

the terms of a plea agreement, Webb received an effective six-year Department of Correction (DOC)

sentence, which stemmed from six theft convictions in Cocke and Jefferson counties. The plea

agreement provided that the six-year DOC sentence would be served concurrently with a federal

sentence Webb was serving. Following a timely filed Rule 35 motion, the trial court modified

Webb’s DOC sentences to “time served” and ordered removal of the state detainer warrant lodged

against Webb. The trial court found that modification was necessary to effectuate the intent of the

plea agreement. The State argues that the trial court’s ruling was improper because Webb’s

sentences were imposed as a result of an “agreed plea,” and any post-sentencing developments

complained of by Webb were not unforeseen. After review, we conclude that Webb’s sentence was

improperly modified. Accordingly, the judgment of the trial court is reversed, and this case is

remanded for reinstatement of the judgments of conviction as originally entered.

Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed; Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA

MCGEE OGLE , JJ., joined.

William M. Leibrock, Newport, Tennessee, for the Appellee, Bradley Ryan Webb.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D.

Aslinger, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Ronald C.

Newcomb, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

In May 2000, the Appellee pled guilty in Cocke County to two counts of Class D felony theft

and three counts of Class B felony theft, and he also pled to one count of Class D felony theft,

stemming from an indictment in Jefferson County. The plea agreement provided that the Appellee

would receive two-year sentences on each Class D theft conviction and six-year sentences on each

Class B theft conviction, with all sentences to be served concurrently. The plea agreement further

provided that sentencing would be deferred to permit the Appellee to be sentenced in federal district

court on charges which were pending at the time. After federal sentencing was completed, the

Appellee would be returned to the state court for sentencing and, as agreed, his state sentences would

run concurrently with his federal sentences. On January 8, 2001, the sentences were imposed by the

trial court in Cocke County. On March 9, 2001, the Appellee, pursuant to Rule 35(b),Tennessee

Rules of Criminal Procedure, filed a pro se motion requesting that his state sentence be “run co-

terminus to his sentence of 30 months imposed by the United States District Court for the Eastern

District of Tennessee.” The trial court’s order granting the Appellee’s Rule 35 motion recites the

following findings:

2. The defendant had an effective sentence of 6 years, and has accumulated

substantial credit towards that sentence. The Court relies on the T.O.M.I.S. offender

report generated by the Tennessee Department of Correction in finding that he is well

beyond his release eligibility date.

3. The Court is aware that the Tennessee Board of Paroles has conducted foreign

jurisdiction hearings in this matter last year and this year, in the absence of the

defendant, and has not granted parole.

4. The Court finds that the defendant is in federal custody with a release date of

December 23, 2002, and is currently under detainer from the State of Tennessee for

the sentences referenced above. The active detainer has adversely affected his

security level, causing him to be removed from the camp and placed in a federal

correctional facility, and further, will prevent his placement in a halfway house by the

federal system.

5. The Court specifically makes note of the State’s objection to any alteration in the

terms of the plea agreement, but finds that under the circumstances of this particular

matter, it is appropriate to amend his state sentences from Cocke and Jefferson

County, enumerated above, to run co-terminus with his federal sentence, and the

detainer removed. It is, therefore, ORDERED that these sentences be modified to

time served and the balance to be served on supervised probation, and that the State

take such action as is necessary to withdraw the detainer and execute any additional

forms as may be required to amend this judgment.

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ANALYSIS

Modification of a sentence may be granted under Rule 35(b),Tennessee Rules of Criminal

Procedure,1 if the trial court finds “in the interest of justice,” that the sentence must be reduced.

State v. Hodges, 815 S.W.2d 151, 154 (Tenn. 1991). However, where a trial court accepts a guilty

plea agreement under Rule 11(e)(1)(C), Tennessee Rules of Criminal Procedure, the trial court

should not modify the agreed upon sentence absent unusual circumstances, such as unforeseen post-

sentencing developments. State v. McDonald, 893 S.W.2d 945, 947 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1994). On appeal, the trial court’s disposition of a motion to modify will not

be disturbed unless the appellate court finds an abuse of discretion. State v. Irick, 861 S.W.2d 375,

376 (Tenn. Crim. App. 1993); State v. Costa, No. 01C01-9511-CR-00376 (Tenn. Crim. App. at

Nashville, Dec. 4, 1997).

The Appellee argues that granting the Rule 35 motion was entirely proper, as modification

was necessary to reflect the original agreement of the parties. Moreover, the Appellee argues that,

after he was returned to federal custody following state sentencing, the office of the district attorney

general placed a state detainer on him which “adversely affected his security level” and resulted in

loss of other inmate privileges. On the other hand, the State argues that the plea agreement provides

that the Appellee’s state and federal sentences are to be served “concurrently,” not “co-terminus,”

and that the Appellee was not guaranteed parole after service of thirty percent of his sentence.

It is undisputed that the plea agreement executed by the Appellee and his attorney and the

plea recommendation by the prosecutor at sentencing is as follows:

The defendant shall receive a sentence of six years, TDOC to run concurrently with

case no. 6916 on the docket of the Jefferson County Circuit Court and concurrently

with cases 7974 and 7975 of the Circuit Court of Cocke County. All Jefferson and

Cocke sentences shall run concurrently with sentencing to be imposed by the U.S.

District Federal Court of Greenville, Tennessee, and the sentencing in this cause shall

be deferred until after the sentencing in Federal Court. The defendant shall likewise

pay as restitution all reward money paid by the victim in this cause for the return of

the three motorcycles involved.

The above terms represent the full agreement between the parties.

1

Rule 35 provide s in relevant part as follows:

(b) The trial court may reduce a sentence upon app lication filed within 120 days after the date the

sentence is impo sed o r probation is revo ked. . . . If the sentence is modified, the state may appeal as

otherwise provided by law. A modification can only be as to any sentence the court could have

originally imposed.

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Placing considerable blame with the prosecutor’s office for lodging the detainer against the

Appellee while he was in federal custody, the trial court granted the Rule 35 motion. The court

concluded that it was the intent of the State and the Appellee that the state and federal sentences were

to be served “co-terminus.” We are unable to agree with this conclusion. The plea agreement

executed by the Appellee, the trial court’s pronouncement at the guilty plea hearing, and the trial

court’s docket entry all reflect that the state and federal sentences were to be served “concurrently.”

There is nothing in the record supporting the Appellee’s argument that the sentences were to be “co-

terminus,” which was defined by the Appellee as “when he did that Federal time he was supposed

to get out of jail.” Furthermore, with regard to the detainer, we would note that, under the Interstate

Compact on Detainers Act, it was incumbent upon the district attorney general to notify the warden

at the federal correctional facility where the Appellee was incarcerated as to the disposition of

charges in this state. Tenn. Code Ann. § 40-31-101 to - 108. As such, the prosecutor’s action may

not be characterized as unforeseen. Because the Appellee has failed to establish any “unforeseen,

post sentencing development[s],” it was an abuse of discretion for the trial court to modify the agreed

sentence.

CONCLUSION

Based upon the foregoing, we find that it was abuse of discretion for the trial court to grant

the Appellee’s Rule 35 motion for modification of sentence. Accordingly, the judgment of the trial

court is reversed, and this case is remanded for reinstatement of the judgments of conviction as

originally entered.

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DAVID G. HAYES, JUDGE

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