State of Tennessee v. Cornelius Devon Hicks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 10, 2002

STATE OF TENNESSEE v. CORNELIUS DEVON HICKS

Appeal from the Humboldt Law Court for Gibson County

No. H 6873 Clayburn Peeples, Judge

No. W2002-00334-CCA-R3-CD - Filed September 27, 2002

The Appellant, Cornelius Devon Hicks, appeals the sentencing decision of the Humboldt Law Court

enlarging his community corrections sentence following revocation. Hicks argues on appeal that it

was error to increase his sentence from eight to ten years, when no proof was introduced at the

revocation hearing supporting an increased sentence and the trial court made no findings to justify

the ten-year sentence. After review, we agree. Accordingly, the trial court’s re-sentencing order is

reversed, and this case is remanded to the trial court for a new sentencing hearing.

Tenn. R. App. P. 3; Judgment of the Humboldt Law Court Reversed; Remanded for New

Sentencing Hearing.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOE G.

RILEY, JJ., joined.

Periann S. Houghton, Assistant Public Defender, Trenton, Tennessee, for the Appellant, Cornelius

Devon Hicks.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin

Dixon, Jr., Assistant Attorney General; and Garry Brown, District Attorney General, for the

Appellee, State of Tennessee.

OPINION

Factual Background

On November 11, 2000, the Appellant pled guilty in the Humboldt Law Court of Gibson

County to one count of class B felony sale of cocaine. Under the terms of the plea agreement, the

Appellant received an eight-year community corrections sentence, with the first six months of the

sentence to be served in the Gibson County Jail.

On May 15, 2001, a capias was issued for the Appellant based on his alleged violation of the

conditions of his behavioral contract. At the hearing on December 17, 2002, the community

corrections case officer testified to numerous violations of the Community Corrections Behavioral

Contract.1 The Appellant freely admitted that he had committed the violations. He believed,

however, that he deserved a second chance because he was a “changed man.” The Appellant

explained that the violations occurred because he was “stressed out” and had “family problems.”

Following the hearing, the trial court revoked the Appellant’s placement in the local

community corrections program and re-sentenced him to a term of ten years, with service of the

sentence in the Department of Correction.

Analysis

The Appellant acknowledges that, upon revocation of his community corrections sentence,

the trial court had the authority to re-sentence him “for any period of time up to the maximum

sentence provided for the offense committed.” Tenn. Code Ann. § 40-36-106(e)(4). Moreover, as

argued by the Appellant on appeal, decisions of this court have held that, “[W]hen a trial court opts

to impose a sentence which exceeds the length of the initial sentence based on a breach of the terms

of the sentence, the trial court must conduct a sentencing hearing pursuant to the Tennessee Criminal

Sentencing Reform Act of 1989.” State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996);

see also State v. Cooper, 977 S.W.2d 130, 132 (Tenn. Crim. App. 1998). A trial court must state

its reasons for imposing a sentence on the record. Tenn. Code Ann. §§ 40-35-209(c), -210(f), (g)

(1997 and Supp. 2001). Tenn. Code Ann. § 40-35-209(c) provides in part that the record of the

sentencing hearing “shall include specific findings of fact upon which application of the sentencing

principles was based.” The provisions of the statute do not permit the trial court to arbitrarily

establish the length of the new sentence. State v. Keith F. Batts, No. 01-C-01-9210-CR-00326

(Tenn. Crim. App. at Nashville, Feb. 18, 1993). The statute should not be used by trial courts for

the sole and exclusive purpose of punishing an accused for violating the provisions of a community

corrections sentence. Id.

In conducting a review of the sentence imposed by the trial court, this court is guided by

certain well-established principles. Our review of the sentence is de novo with a presumption of

correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative

showing in the record that the trial judge considered the sentencing principles and all relevant facts

and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to

comply with the statutory directive, there is no presumption of correctness and our review is de novo.

State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). However, an appellate court cannot review either

the length or method of serving a sentence unless the findings of the trial court are contained in the

record. Batts, No. 01-C-01-9210-CR-00326.

1

The violations includ ed: (1 ) numerous violations of house arrest; (2) failure to maintain permanent

emp loyment; (3) failure to pa y court costs; (4) testing positive for drugs; (5) failure to report; (6) failure to attend

com munity service work; an d (7) failure to pay sup ervision fees.

-2-

In the present case, the trial court failed to conduct a sentencing hearing prior to enlarging

the Appellant’s sentence from eight to ten years. At the conclusion of the revocation hearing, the

trial judge entered the following pronouncement with regard to re-sentencing: “[I]n view of the

numerous and substantial violations which you have admitted to, that your sentence should be

increased from eight years to ten years and I order that done.” The trial court failed to address any

sentencing considerations, including mitigating or enhancing factors, which might have been

applicable. See State v. Mell Thomas Bruton, No. M1999-00956-CCA-R3-CD (Tenn. Crim. App.

at Nashville, Apr. 7, 2000) (for proper application of enhancing factors). The absence of a

sentencing hearing obviously precludes our statutorily mandated de novo review of the ten-year

sentence. As such, we remand to the trial court for re-sentencing.

CONCLUSION

For the above stated reasons, we reverse the trial court’s sentencing decision enlarging the

Appellant’s sentence from eight to ten years and remand this case to the trial court for a new

sentencing hearing in accordance with statutory sentencing principles.

___________________________________

DAVID G. HAYES, JUDGE

-3-