State of Tennessee v. Roy Lee Sewell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 10, 2015 Session

STATE OF TENNESSEE v. ROY LEE SEWELL

Appeal from the Criminal Court for Clay County

Nos. 2009-CR-27; 2008-CR-1004, 4530; 2007-CR-927, 4452 Leon C. Burns, Jr.,

Judge

No. M2014-02060-CCA-R3-CD – Filed May 18, 2015

Appellant, Roy Lee Sewell, pleaded guilty to the sale of dihydrocodeinone and the sale of

alprazolam. Appellant was placed on probation as a result of his plea agreement, and

after appellant‟s conviction on new charges, the trial court revoked his probation. On

appeal, appellant argues that his probation had expired prior to this revocation due to an

illegal extension of his probation a year earlier. After reviewing the record, the

arguments, and the relevant law, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., and CAMILLE R. MCMULLEN, JJ., joined.

David Neal Brady, District Public Defender; and Allison Rasbury West, Assistant

District Public Defender, Cookeville, Tennessee, for the appellant, Roy Lee Sewell.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Randall A. York, District Attorney General; and Mark Edward Gore, Deputy District

Attorney General, for the appellee, State of Tennessee.

OPINION

Appellant pleaded guilty to the sale of dihydrocodeinone on June 23, 2008, in case

W-4452 and was sentenced to three years suspended to probation. On the same day,

appellant pleaded guilty to the sale of alprazolam in case W-4530 and was sentenced to

two years suspended to probation. The sentences were to be served consecutively. As a

special condition of probation, appellant was ordered to be supervised by community

corrections for the first year of his sentence and then transferred to the Board of

Probation and Parole. On November 23, 2009, appellant pleaded guilty to the delivery of

dihydrocodeinone and was sentenced to two years in confinement. Appellant‟s probation

was not revoked for incurring this conviction. On June 28, 2013, the trial court entered

an order revoking appellant‟s probation and extending appellant‟s probation for five

years or until court costs were paid in full. On January 7, 2014, a probation violation

warrant issued due to appellant‟s arrest for domestic assault on January 5, 2014. He was

convicted of that offense, and a judgment was entered prior to the probation revocation

hearing.

At the probation revocation hearing on February 24, 2014, the trial court

determined that appellant‟s two-year sentence in case W-4530 had expired on November

13, 2011, and that the consecutive three-year sentence commenced on that date. The

parties appeared to agree with that determination.1 Regarding the five-year extension of

probation in 2013, the trial court stated, “In 2013, we just extended him five years, which

is illegal. We can‟t extend him but two years.” The court then treated the five-year

extension as a two-year extension and determined that appellant was still on probation.

The trial court revoked appellant‟s probation.

On appeal, the parties do not contest the underlying grounds supporting

appellant‟s revocation but focus solely on whether appellant‟s probationary sentence had

expired prior to the 2014 revocation. Appellant argues that at the 2014 revocation

hearing, the trial court was unable to adjust the illegal five-year extension to a valid two-

year extension of probation. Appellant argues that the five-year sentence was illegal and

void from inception in 2013 and that it was, therefore, rendered a nullity; as such, he

asserts that his probation would have expired before the 2014 probation violation.2 The

State responds that the trial court did not err because it corrected the error before the

statutorily permissible two-year extension had lapsed.

If the trial court finds by a preponderance of the evidence that the defendant has

violated the conditions of probation, the court is granted the authority to: (1) order

confinement; (2) order execution of the sentence as originally entered; (3) return the

defendant to probation on appropriate modified conditions; or (4) extend the defendant‟s

probationary period by up to two years. Tenn. Code Ann. §§ 40-35-308(a), -308(c), -310,

-311(e)(1); see State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The appellate standard

of review of a probation revocation is abuse of discretion. See State v. Shaffer, 45

1

The State concedes in its brief that the conclusion was incorrect.

2

To the extent that appellant argues that his sentence had expired prior to the June 28, 2013 hearing,

appellant‟s probation violation report for the 2014 revocation indicates that appellant‟s probation was

“violated” on May 17, 2013. Appellant has also attached the 2013 probation violation warrant to his

brief, which is dated May 20, 2013. The filing of a probation violation warrant tolls the expiration of a

period of probation. See State v. Shaffer, 45 S.W.3d 553 (Tenn. 2001). Therefore, appellant‟s probation

was tolled on May 20, 2013, well before appellant‟s probation expired.

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S.W.3d 553, 554 (Tenn. 2001); see also State v. Reams, 265 S.W.3d 423, 430 (Tenn.

Crim. App. 2007). Generally, “[a] trial court abuses its discretion when it applies

incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly

erroneous assessment of the proof, or applies reasoning that causes an injustice to the

complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010) (citing State v.

Jordan, 325 S.W.3d 1, 38-40 (Tenn. 2010)).

We note that a similar situation was addressed by this court in State v.

Merriweather, 34 S.W.3d 881 (Tenn. Crim. App. 2000). However, in Merriweather, the

defendant signed an agreement with her probation officer extending her probation

indefinitely until she had paid all fees and court costs. Id. at 882. When the trial court

found that the defendant had violated her probation nearly five years later, this court

determined that the agreement to extend the defendant‟s probation indefinitely was void

and that the defendant‟s probation ended on the date originally imposed, disregarding the

probation revocation in its entirety. Id. at 884-86. However, Merriweather differs from

the case at hand. In Merriweather, the defendant did not receive a revocation hearing,

and the illegal extension of probation was addressed after the legally permissible two-

year extension had lapsed; whereas, in this case, the trial court in 2014 corrected the

mistake before the statutorily permissible two-year extension had expired. See Tenn.

Code Ann. § 40-35-308(c). Therefore, Merriweather does not directly address whether a

trial court can correct an extension of probation with an illegally-extended duration when

the permissible two-year extension of probation has yet to lapse.

Appellant argues that the five-year extension was illegal and void. “A void

judgment „is one in which the judgment is facially invalid because the court lacked

jurisdiction or authority to render the judgment or because the defendant‟s sentence has

expired.‟ We have recognized that a sentence imposed in direct contravention of a statute,

for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.

2000) (citations omitted). Appellant is correct in stating that his five-year extension in

2013 was an illegal sentence because the trial court was only statutorily authorized to

extend his probation for two years. See Tenn. Code Ann. § 40-35-308(c). However,

appellant further argues that because his sentence was illegal, it was void from inception

and that the trial court could not correct the error sua sponte at the 2014 revocation

hearing, which was still within two years of the 2013 revocation.

However, our court has long recognized that trial courts have the authority to

correct an illegal sentence at any time, even if it has become final. See State v. Burkhart,

566 S.W.2d 871, 873 (Tenn. 1978). Principles of logic, common sense, and judicial

efficiency dictate that this authority should extend to the correction of an error made in

extending an appellant‟s probation when the correction is made within the two years

following revocation. Otherwise, a trial court would be unable to correct mistakes made

in resentencing after a probation revocation when those mistakes come to the court‟s

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attention. Appellant has failed to show that the trial court erred in modifying his

probation extension from five years to two years.

CONCLUSION

Based on the parties‟ briefs, the record, and the applicable law, we affirm the

judgment of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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