State v. Clifton Epps

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

DECEMBER SESSION, 1996 FILED November 13, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9601-CR-00022 ) Cecil Crowson, Jr.

Appellant, ) Appellate C ourt Clerk )

) SHELBY COUNTY

VS. )

) HON. JOHN P. COLTON, JR.

CLIFTON EPPS, ) JUDGE )

Appellee. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES W. BURSON RANDALL W. PIERCE Attorney General and Reporter Wampler, Pierce & Siegel, P.C.

294 Washington Avenue

ELLEN H. POLLACK Memphis, TN 38103 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

WILLIAM L. GIBBONS District Attorney General

JAMES M. LAMMEY Assistant District Attorney 201 Poplar Avenue, Third Floor Memphis, TN 38103

OPINION FILED ________________________ REVERSED AND REMANDED JERRY L. SMITH, JUDGE

OPINION

Appellant Clifton Epps was convicted upon his plea of guilty of the offense of driving wh ile a habitu al moto r vehicle offe nder. See Tenn. Code Ann. § 5 5-10-61 6. He rec eived a se ntence of one ye ar in the S helby C ounty W orkho use, h owev er the A ppella nt was allowe d by the trial cou rt to serv e his senten ce in a co mm unity corre ctions pro gram. See Tenn. Code Ann. § 40-36- 101, et seq. The State of Tennessee filed this appeal which challenges the eligibility of App ellant for a co mm unity corre ctions pla ceme nt. 1 After a thorough review of the record in this case we are of the opinion that the decision of the trial court must be reversed and this case remanded for reconsideration of Appellant’s eligibility for a community corrections placem ent.

Tenn essee Code Annota ted Sec tion 40-3 6-106 (1 995 Su pp.)

establishes the eligibility requirements for criminal defendants seeking a placement in a community corrections program. Section 40-36-106(a)(6) provides that offenders who “demonstrate a pattern of committing violent offense s” are no t eligible for su ch a pro gram. T he reco rd in this cas e reflects that Appellant has a record of convictions on four counts of assault. Thus, the State argue s Appellant’s history o f assault offenses renders him ineligible for a placement in a community corrections program, and that the trial court’s order placing A ppellant in such a p rogram is erroneo us and should b e reverse d.

1 Purs uan t to Te nne sse e Co de A nno tated Sec tion 4 0-35 -402 , the S tate o f Te nne sse e m ay app eal certa in sen tenc ing de cisio ns. A lthou gh th e lang uag e of S ectio n 40- 35-4 02 do es no t spe cifica lly mention the placement of a criminal defendant in a community corrections program as an appea lable issue , this Cour t has held that the Sta te ma y pursue such a ppeals. State v. To m H ale, No. 03C01-941 1-CR-00404 (Tenn. Crim. App . at Knoxville, August 14, 1995).

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Appe llant arg ues th at des pite his record of com mitting violent o ffense s he is nevertheless eligible for community corrections under Tennessee Code Annotated Section 40-36-106(c) which provides:

Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for p robatio n due to histo ries of c hronic alcoh ol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the c omm unity un der the provisio ns of th is chapter.

We agree with Appellant that if he meets the criteria of subsection (c) he would be elig ible for c omm unity co rrection s des pite his history o f assa ult conviction s. Howe ver, the rec ord in this ca se is insuffic ient for this C ourt to determine Appellant’s eligibility for community corrections under subsection (c). In State v. Robert Boston, No. 03C01-9505-CR-00154 (Tenn. Crim. App. at Knoxville, May 14, 1996), this Court specified that in placing an offender on community corrections pursuant to subsection (c) the trial court must make the following find ings of fac t:

(1) the offender has a history of chronic alcohol or drug abuse, or mental health problems,

(2) these factors were reasonably related to and contribute d to the offe nder’s crim inal cond uct,

(3) the identifiable spec ial need (or nee ds) are treatable, and

(4) the treatment of the special need could be served best in the community rather than in a correction institution.

Id. at 4. In the pre sent cas e the trial judg e in sente ncing A ppellant to community corrections noted only that Appellant’s criminal record included a

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numbe r of public intoxication offense s. The findings of fact required by Boston are not present in this record.

Under the circumstances we are compelled to reverse the decision of the trial c ourt an d rem and th is case for re-s enten cing in acco rdanc e with th is opinion.

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JERRY L. SMITH, JUDGE

CONCUR:

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JOE B. JONES, PRESIDING JUDGE

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JOSEPH M. TIPTON, JUDGE