State v. Vernita Cox

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 02C01-9605-CR-00174
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 1997 SESSION FILED July 7, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9605-CR-00174 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, VERNITA COX, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

MARVIN E. BALLIN JOHN KNOX WALKUP and Attorney General & Reporter MARK A. MESLER 200 Jefferson Ave., Suite 1250 MICHAEL J. FAHEY, II Memphis, TN 38103 Asst. Attorney General 450 James Robertson Pkwy. Nashville, TN 37243-0493

WILLIAM L. GIBBONS District Attorney General

DAVID B. SHAPIRO Asst. District Attorney General Criminal Justice Center -- Third Fl. Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED AS MODIFIED

JOHN H. PEAY, Judge OPINION

The defendant pled guilty to one count of robbery, a class C felony. She

was originally sentenced as a Range I standard offender to three years confinement. On

appeal, this Court remanded “for the imposition of alternative sentencing.” Specifically,

this Court instructed the court below “to consider split confinement, periodic confinement,

and community corrections, and to select the sentencing option which best serves the

goals of the Sentencing Act and appellant Cox’s rehabilitative needs.” On remand, the

court below imposed an alternative sentence of probation coupled with periodic

confinement. T.C.A. § 40-35-307. The defendant has again appealed, complaining that

“the trial court improperly refused to place [her] on Community Corrections.” Upon our

review of the record, we direct the entry of an order increasing the defendant’s period of

probation to two and one-half years, and otherwise affirm the judgment below.

At the resentencing hearing, the court below initially indicated its willingness

to put the defendant on Community Corrections. The judge changed his mind, however,

upon recalling that the defendant had pled guilty to robbery, a violent offense.1

Community Corrections is not generally available to defendants who have been convicted

of a violent felony offense. T.C.A. § 40-36-106(a)(3). Upon being asked by the judge

for a recommendation other than Community Corrections, the defendant’s lawyer

responded, “I would suggest a very minimum sentence under split confinement to be

done on the weekends and then followed by a period of probation.” The court then

determined to suspend all but six months of the defendant’s sentence, to be served on

the weekends, followed by two years of probation.

1 The offense of robbery is committed upon “the intentional or knowing theft of property from the person o f another by violence or putting the person in fear.” T.C.A. § 39-13-401 (a).

2 We disagree with the defendant that the court below erred by not placing

her on community corrections. Her conviction is for a violent felony offense. See State

v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989) (“The very act of taking property

under threat of bodily harm or death . . . is inherently

statutorily ineligible for community corrections unless she has certain “special needs.”

T.C.A. § 40-36-106(c).2 The record is devoid of any proof of these “special needs.” The

court below was correct in refusing to place the defendant in a community corrections

program. This issue is without merit.

The State contends that the court below sentenced the defendant to only

two years and requests this Court to increase her sentence to the minimum period of

three years. See T.C.A. § 40-35-112(a)(3) (the sentencing range for Range I standard

offenders convicted of class C felonies is “not less than three (3) nor more than six (6)

years.”). The judgment entered against the defendant specifies a sentence of three

years. The weekend sentence order specifies that she must serve six months of this

sentence on the weekends. The probation order provides that, following completion of

her confinement, the defendant must then serve two years of probation. Thus, only two

and one-half years of the three year sentence have been accounted for by the court

below. Probation must be for a period of time not less than the minimum sentence

allowed under the classification. T.C.A. § 40-35-303(c) (1996 Supp).

When the State appeals from a sentence, this Court has the authority to

“direct the entry of an appropriate order.” T.C.A. § 40-35-402(c). Accordingly, we direct

the court below to enter an order modifying its previous probation order in this case so

2 “Felony offe nders not othe rwise eligible [for com m unity correctio ns], an d who would be usually considered unfit for probation due to histories of chronic alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the comm unity rather than in a correctional institution, may be considered eligible for punishment in the comm unity under the provisions of this cha pter.”

3 as to require the defendant to serve two and one-half years on probation following

completion of the six month period of confinement. The judgment below is otherwise

affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ GARY R. WADE, Judge

______________________________ THOMAS T. WOODALL, Judge