The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE January 3, 2000
Cecil Crowson, Jr.
NOVEMBE R SESSION, 1999 Appellate Court Clerk
STATE OF TENNESSEE ) C.C.A. NO. 03C01-9903-CR-00122
)
Appellee, )
) KNOX COUNTY
V. )
)
) HON. RICHARD BAUMGARTNER
RAMAAN JAMEL THOMAS, )
)
Appe llant. ) (THEF T OF P ROPE RTY)
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM L. BROWN PAUL G. SUMMERS
Attorney at Law Attorney General & Reporter
706 Walnut Street, Suite 902
Knoxville, TN 37902 MARVIN S. BLAIR, JR.
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
RANDALL EUGENE NICHOLS
District Attorn ey Ge neral
MARSHA SELECMAN
Assistant District Attorney General
400 M ain
P.O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED ________________________
AFFIR MED IN PAR T; REV ERS ED IN PAR T;
REMANDED FOR RESENTENCING
THOMAS T. WOODALL, JUDGE
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OPINION
Defendant Ramaan Jamel Thomas pled guilty in the Knox County Criminal
Court to one count of theft of property worth between $10,000.00 and $60,000.00
and the trial court imposed a sentence of three years to be served in the Co mm unity
Alternative to Prison Pro gram (“CAPP”). The trial court subsequently revoked
Defe ndan t’s participation in CAPP and im posed a sentence of six years in the
Tennessee Department of Correction, with credit for time served in jail and in CAPP.
Defendant challenges his sentence, raising the following issues:
1) whether the trial court erred when it revoked his placement in CAPP; and
2) whether the trial court erred when it increased his sentence to six years.
After a review of the record we affirm the judgment of the trial court in part, reverse
the judgment in part, and remand this case for resentencing.
I. BACKGROUND
Defendant was pla ced in C APP on Oc tober 17, 1996. On November 22,
1996, a CAPP violation warrant was filed which alleged that Defendant had violated
the CAP P requ iremen ts by failing to obey the laws of the United S tates and the State
of Tennessee. Following a hearing, the trial court denied the State’s petition for
revocation of Defendant’s participation in CAPP. On May 23, 1997, a second CAPP
violation warrant was filed which alleged that Defendant had violated the CAPP
requirem ents by failing to remain employed, failing to pay fees, failing to report, and
failing to perform com munity service . Following ano ther hearing, the trial cou rt
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denied the State’s petition for revocation of Defendant’s participation in CAPP. On
May 27, 1998, a third CAPP violation warrant was filed which alleged that Defendant
had violated the CAPP requirements by failing to pay fees, failing to report, failing
to keep his curfew, failing to perform community service, and possessing/owning a
firearm.
At the revocation hearing on the third violation warrant held June 8, 1998,
Herman Dickerson testified that Defendant had failed to keep his curfew on three
separa te occasions in April and May of 1998 . In add ition, De fenda nt had repea tedly
failed to report for classes and meetings, had failed to perform community service
according to sched ule, and h ad failed to pay fees on sche dule de spite having th e
financial means to do so. Dickerson testified that in essence, Defendant had
demonstrated an unwillingness to comply with the requirements of CAPP.
Ina Akinola testified that she was Defendant’s former girlfriend. On May 27,
1998, at appro ximate ly 1:00 a.m ., Defend ant left Akinola’s residence after the two
had a brief argum ent. Defenda nt subsequ ently returned an d pounde d on the doo r,
but Akinola refuse d to let h im in. D efend ant the n threa tened to dam age A kinola ’s
car if she would not let him in the residence. After some words were exchanged,
Defendant and a nothe r girlfrien d got in to a ve hicle and Akinola went outside. At this
point, Defen dant po inted a gu n at Akin ola and when the vehic le he wa s in started to
drive away, Defendant fired a shot out the window.
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At the conclusion of the hearing, the trial court stated that it had previously
found that Defendant had violated the CAPP requirements, but it had given
Defendant another chance with a warning that future violations would have serious
consequences. The trial court then revoked Defendant’s participation in CAPP
based on his failure to comply with the program’s requirements. The trial court then
increased the sentence from three years to six years without any explanation or
further elaboration.
On October 2, 1998, Defendant filed a “Motion to Reconsider” his sentence.
The trial court conducted a hearing on the motion on October 14, 1998. At the
beginning of the hearing, the trial court took judicial notice of the fact that the criminal
charges against Defendant for the incident with Akinola had been dismissed
beca use A kinola had fa iled to a ppea r for trial.
During the hearing on the motion to reconsider, Kelly Irick testified that she
was present during the altercation between Akinola and Defendant on May 27, 1998,
and sh e neve r saw D efenda nt with a g un and she ne ver hea rd any sh ots fired.
Defendant testified that although he was at Akinola’s residence on May 27,
1998, he did not have a gun. Defendant claimed that he had failed to report and
attend CAPP classes because he had been working. Defendant admitted that he
had not paid fees according to schedule, but he claimed that he could not pay the
fees because he had to quit h is job when he was arrested for the incident involving
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Akinola. Defendant also admitted that he had violated curfew, but he claimed that
it only occurred once.
At the conc lusion of th e hearin g, the trial cou rt denied the mo tion to
reconsider. The court stated that the major reason for its decision to revoke
Defe ndan t’s placement in CAPP and to increase the sentence was the incident
involving Akinola.
II. WAIVER
Initially, the State conten ds that Defendant waived his right to appeal the
revocation of his placement in CAPP and the increase of his sentence by failing to
file notice of appeal within thirty days of the entry of the judgment appealed from as
required by Rule 4(a) of the Tenne ssee R ules of A ppellate Procedure. Although the
record indicates that Defendant did not file notice of appeal within the thirty day
period, Rule 4 (a) exp ressly provid es tha t in crim inal ca ses, “th e ‘notic e of ap peal’
document is not jurisdictional and the filing of such document may be waived in the
interest of justice.” W e have decided to exercise our discretion and waive the tim ely
filing of the no tice of app eal in orde r to consid er the issu es raised by Defe ndant.
III. REVOCATION
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Defendant contends that the trial court erred when it revoked his placement
in CAP P.
The decision to revoke a Community Corrections sentence rests within the
sound discretion of the trial court and that decision will not be disturbed on appeal
unless there is no subs tantial e viden ce to s uppo rt the tria l court's conclus ion that a
violation had oc curred. State v. Harkins, 811 S.W .2d 79, 82 (Tenn. 1 991). In
reviewing the trial court's finding, it is our obligation to examine the record and
determine whether the trial court has exercised a conscientious judgment rather than
an arbitrary on e. See State v. Mitch ell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991).
Defendant contends that the trial court improperly relied on the incident
involving Akinola as a basis for revoking his placement in CAPP. Specifically,
Defendant contends that the trial court could not rely on his alleged possession and
firing of a gun because Defendant and Irick denied that Defendant had a gun and the
charges involvin g the in ciden t were dropp ed be caus e Akin ola faile d to appear for
trial. However, after observing the testimony and demeanor of Akinola, Irick, and
Defen dant, the trial court accredited the testimony of Akinola and found that Irick and
Defendant had b een u ntruthf ul. Contr ary to D efend ant’s a ssertio ns, no thing in the
Com munity Correc tions Act p rovides th at a violation of a Community Corrections
sentence must result in a criminal conviction in order to be considered by a trial court
as a basis for revoc ation. Moreo ver, the proof of a violation need not be established
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beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a
conscie ntious an d intelligent d ecision. Harkins, 811 S.W.2d at 82.
Moreov er, even without the incident involving Akinola, there was substantial
other evidence that Defendant violated the requirements of CAPP. Indeed,
Dickerson testified that Defendant had failed to keep his curfew on three separa te
occasions, had repeatedly failed to report for class es and meetin gs, had failed to
perform community service according to schedule, and had failed to pay fees on
sche dule despite having the financial means to do so. Under these circumstances,
the trial court was clearly justified in re voking Defendant’s placement in CAPP.
Defendant is not entitled to relief on this issue.
IV. INCREASE IN SENTENCE
Defendant contends that the trial court erred when it increa sed h is sentence
from three to six years.
The Community Corrections Act provides that once a defendant violates the
terms of his or her Community Corrections sentence, the trial court may revoke the
sentence and impose a new sentence:
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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 wh ich the defend ant has bee n sentence d, and the cou rt
may resente nce the defend ant to any approp riate sente ncing alte rnative,
including incarceration, for any period of time up to the maximum sentence
provid ed for the offense committed, less any time actually served in any
comm unity-bas ed altern ative to inca rceration .
Tenn. C ode An n. § 40-3 6-106(e )(4) (Sup p. 1999 ).
Although the abo ve statute make s it clear that a trial court has the auth ority
to increase the length of sentence upon the revocation of a Community Corrections
sentence, there are certain re quiremen ts that must be satisfied before the trial cou rt
may do so. First, the trial court must state its reasons for imposing a new sentence
on the reco rd. Tenn . Code Ann. §§ 40-35-2 09(c), -210(f)–(g) (1997 & Supp. 1999).
In addition, the record of the sentencing hearing "shall include specific findings of
fact upon which application of the sentencing principles was based." Tenn. Code
Ann. § 4 0-35-20 9(c) (199 7). Furthe r,
(f) When ever the cou rt imposes a sentence, it shall place on the record
either orally o r in writin g wha t enha ncem ent or m itigating factors it found , if
any, as w ell as finding s of fact as required by § 40- 35-209 .
(g) A sentence must be based on evidence in the record of the trial, the
sentencing hearing, the presentence report, and, the record of prior felony
convictions filed by the district attorney general with the court as required by
§ 40-35 -202(a).
Tenn Code Ann. § 40-35-210 (Supp. 199 9). These statu tory provisions are
manda tory and the fact that this Court reviews sentences de novo does not relieve
the trial court from comp lying with th ese statu tory ma ndates . State v. Ervin , 939
S.W.2d 581, 58 4 (Tenn . Crim. A pp.199 6); see also Baker v. State, 989 S.W.2d 739,
741 (Te nn. Crim . App. 19 98).
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In the revocation hearing of this case, the trial court made certain findings of
fact in regard to the ba sis for revocation, bu t the trial court did not make any findings
of fact in regard to the basis for the increase in the length of sentence. In fact, the
trial court did not identify any reason whatsoever for increasing the length of
sentence. It is true that during the hea ring on the m otion to reconside r, the trial court
indicated that it had increased the length of sen tence base d on D efend ant’s conduct
during the incident with Akinola. However, the trial court failed to identify the
enhancement and mitigating factors that applied to Defendant’s sentence and the
court failed to identify the findings of fact that would have supported the application
of any enhancement or mitigating factors.
Quite simply, th e trial court d id not follow the sente ncing pro cedure s set forth
in the 1989 Sentencing Act when it increased the length of Defendant’s sentence.
The court did not address the purposes or sentencing considerations of the Act. Nor
did the cour t set forth its findings with respect to enhancement and mitigating factors.
Thus, we cannot conduct the statutorily mandated de novo review of the increased
sentence impos ed by the trial court up on revo cation of th e CAP P sente nce. See
State v. Cooper, 977 S.W .2d 130, 132 (Tenn. Crim . App. 1998 ); Ervin , 939 S.W.2d
at 584. W e there fore re verse Defe ndan t’s incre ased sente nce a nd we rema nd this
case for a ne w sen tencin g hea ring co nsiste nt with the prin ciples outline d in this
opinion. See Cooper, 977 S.W .2d at 132 ; Ervin , 939 S.W.2d at 584. We wish to
emphasize that although there may be valid grounds for an increased sentence, the
trial court may not increase the sentence for the sole purpose of punishing
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Defendant for violating th e require ments of his CA PP se ntence . See Ervin , 939
S.W.2d at 583.
V. CONCLUSION
For the reasons stated above , we affirm the trial court’s re vocation of
Defe ndan t’s placem ent in CA PP. However, we reverse the increased sentence
imposed by the trial court and we remand this case for a new sentencing hearing
consistent with the principles outlined in this opinion.
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THOMAS T. WO ODALL, Judge
CONCUR:
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JOSEPH M. TIPTON, Judge
___________________________________
JERRY L. SMITH, Judge
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