State of Tennessee v. Bruce Cole

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 24, 2008
• Docket: 02C01-9510-CC-00290
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED AUGUST 1996 SESSION March 24, 2008

Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) NO. 02C01-9510-CC-00290 ) Appellee ) GIBSON COUNTY ) V. ) HON. DICK JERMAN, JR., JUDGE ) BRUCE COLE ) (Sentencing) ) Appellant ) )

FOR THE APPELLANT FOR THE APPELLEE

Tom W. Crider Charles W. Burson District Public Defender Attorney General and Reporter 107 South Court Square 450 James Robertson Parkway Trenton, Tennessee 38382 Nashville, Tennessee 37243-0493

J. Diane Stouts Charlotte H. Rappuhn Assistant District Public Defender Assistant Attorney General 107 South Court Square 450 James Robertson Parkway Trenton, Tennessee 38382 Nashville, Tennessee 37243-0493

Periann S. Howghton Clayburn L. Peeples Assistant District Public Defender District Attorney General 107 South Court Square 109 East First Street Trenton, Tennessee 38382 Trenton, Tennessee 38382-1841

Gary G. Brown Assistant District Attorney General 109 East First Street Trenton, Tennessee 38382-1841

OPINION FILED:______

REMANDED FOR A NEW SENTENCING HEARING

William M. Barker, Judge Opinion The Appellant, Bruce Cole, appeals as of right his sentences for five

convictions of sale of a Schedule II controlled substance. The Appellant argues on

appeal that the trial court erred when it enhanced his sentences and ordered them to

be served consecutively. Following a careful review of the record on appeal, we

remand the case to the trial court for a new sentencing hearing.

On February 27, 1992, the Appellant pled guilty to separate offenses of assault

and robbery. The trial judge sentenced him to three years for the robbery and eleven

months and twenty-nine days for the assault, both sentences to be served

concurrently. The trial judge then ordered forty-five days confinement and the

remainder of the sentence to be served on probation.

On June 22, 1992, the Appellant pled guilty to, and was convicted of, five

separate incidents of sale of a Schedule II controlled substance. The trial judge

revoked the Appellant’s probation and sentenced him to five concurrent ten-year

sentences in a community corrections program.

On February 27, 1995, the Appellant was arrested for public intoxication and

possession of marijuana in violation of the terms of his community corrections

sentence. On June 19, 1995, at the community corrections revocation hearing, the

trial judge revoked the Appellant’s community corrections sentence. The trial judge

also enhanced each ten-year sentence to twelve years and ordered one twelve-year

sentence to be served consecutively to the remaining four twelve-year sentences for a

total of twenty-four years imprisonment. The trial judge stated for the record that he

had given the Appellant not only one chance, but two chances, and that he could not

give him a third chance. The trial judge did not place on the record why he enhanced

and ordered consecutive the Appellant’s sentences.

When an Appellant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)

(1990). This presumption, however, is conditioned upon an affirmative showing in the

2 record that the trial court considered the sentencing principles and all relevant facts

and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Here, the trial judge was well within his authority to revoke the Appellant’s

community corrections sentence and to resentence him within bounds of the

Sentencing Reform Act. A trial judge has the authority to revoke a previously imposed

community corrections sentence due to a defendant’s conduct. Tenn. Code Ann.

§ 40-36-106 (e)(4) (Supp. 1995). A trial judge “may [also] resentence the defendant to

any appropriate sentencing alternative, including incarceration, for any period of time

up to the maximum sentence provided for the offense committed . . . .” Id.

However, the trial judge did not indicate on the record to what extent he

considered the Sentencing Reform Act’s principles and all the relevant facts and

circumstances surrounding the Appellant and the Appellant’s criminal history. Since

the record is void of the trial court’s considerations we cannot rely on the statutorily

mandated presumption of correctness. When the presumption of correctness fails, we

must conduct a de novo review of whether the Appellant’s sentence was appropriate.

Tenn. Code Ann. § 40-35-401(d). See State v. Shelton, 854 S.W.2d 116, 123 (Tenn.

Crim. App.1992).

When the record on appeal does not contain sufficient facts for de novo review,

however, it is appropriate for the reviewing court to remand the case to the trial court

for a new sentencing hearing. See State v. Wilkerson, 905 S.W.2d 933, 934-35

(Tenn. 1995); State v. Kenneth Eugene Troutman, No. 03C01-9509-CC-00287 (Tenn.

Crim. App., Knoxville, Nov. 6, 1996). In this case, we decline de novo review for two

reasons. First, as previously stated, the trial judge did not place on the record why he

enhanced and ordered consecutive the Appellant’s sentences. Second, the record on

appeal is very meager and does not contain any transcripts from the earlier

sentencing hearings and no presentence report or other facts and circumstances

regarding the Appellant’s previous criminal history. Without this necessary information

3 we cannot review de novo whether the Appellant’s sentences were appropriate.

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

__________________________ WILLIAM M. BARKER, JUDGE CONCUR:

__________________________ GARY R. WADE, JUDGE

__________________________ JERRY L. SMITH, JUDGE