State of Tennessee v. Richard Paul Brady ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 7, 2011
STATE OF TENNESSEE v. RICHARD PAUL BRADY
Direct Appeal from the Circuit Court for Montgomery County
No. 40800737, 40801122 John H. Gasaway, III, Judge
No. M2010-02660-CCA-R3-CD - Filed December 21, 2011
The Defendant, Richard Paul Brady, pled guilty to burglary, a Class D felony, and
aggravated assault, a Class C felony. The trial court sentenced the Defendant, as a
multiple offender, to concurrent terms of four years for the burglary conviction and
eight years for the aggravated assault conviction, to be served in community
corrections after service of one year in the workhouse. A violation warrant was
issued, and, after a hearing, the trial court revoked the Defendant’s community
correction sentence, finding that he had violated the terms of his sentence and
ordered him to serve his original sentence in confinement. On appeal, the
Defendant contends the trial court abused its discretion by revoking his community
corrections sentence and ordering him to serve the balance of his sentence in
prison. After a thorough review of the record and applicable law, we affirm the
trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which T HOMAS
T. W OODALL and D. K ELLY T HOMAS, J R., JJ, joined .
Roger E. Nell (on appeal) and Charles S. Bloodworth, Sr. (at hearing), Clarksville,
Tennessee, for the appellant, Richard Paul Brady.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Arthur
Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
According to the trial court’s recitation of the background and procedural
history of the Defendant’s cases, on December 11, 2008, the Defendant pled guilty
to burglary and received a four-year sentence as a Range II offender, to be served
in community corrections. On that same date, the Defendant pled guilty to
aggravated assault, and was sentenced as a Range II offender to serve eight years,
concurrently with the sentence for burglary. The eight-year sentence for
aggravated assault, however, was to be served as split confinement of one year in
the county jail followed by seven years in community corrections.1
Shortly after being released from confinement, a violation warrant was
issued, the Defendant admitted he was in violation, and the trial court restructured
the sentences such that they were ordered to be served consecutively rather than
concurrently. The trial court placed the Defendant back into the community
corrections program to serve an effective twelve-year sentence.
Thereafter, another violation warrant was issued on the basis of the
Defendant’s failure to report to his community corrections supervisor. The
Defendant admitted this violation, and requested that he be placed back in
community corrections, after being held in jail seventy-four days pending the
hearing on the violation warrant. The trial court denied the Defendant’s request,
revoked the community corrections sentence, and ordered the effective sentence of
twelve years to be served in the Department of Correction, with statutorily
mandated credits for time served. It is from this judgment that the Defendant now
appeals.
II. Analysis
The Defendant contends that the trial court erred when it revoked his
community corrections sentence and ordered him to serve his twelve-year sentence
in the Department of Correction. The State responds that the trial court properly
revoked the Defendant’s community corrections sentence. We agree with the
State.
A trial court may revoke a defendant’s community corrections sentence
based on the defendant’s non-compliance with the conditions of the community-
based program. T.C.A. § 40-36-106(e)(3)-(4) (2006). Such a decision is within
the trial court’s discretion, and this court will not disturb a trial court’s revocation
judgment unless there is “no substantial evidence” that a “violation of the
conditions of [the community corrections program] has occurred. State v. Harkins,
811 S.W.2d 79, 82-83 (Tenn. 1991) (citing State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978) and State v. Delp, 614, 614 S.W.2d 395, 398 (Tenn. Crim. App.
1980)) (adopting the probation violations standard for a community corrections
program violation due to the sentences’ similar nature). In other words, the trial
court must find proof of a community corrections violation by a preponderance of
the evidence. T.C.A. § 40-35-311(e) (2006); State v. Joe Allen Brown, No.
W2007-00693-CCA-R3-CD, 2007 WL 4462990, at *4 (Tenn. Crim. App., at
Jackson, Dec. 20, 2007), no Tenn. R. App. P. 11 application filed. We note that
“only one basis for revocation is necessary,” and a defendant’s admission that he
violated the conditions of his release to the community corrections programs is
sufficient evidence for such a revocation. Brown, 2007 WL 4462990, at *4
(quoting State v. Alonzo Chatman, No. E2000-03123-CCA-R3-CD, 2001 WL
1173895, at *2 (Tenn. Crim. App., at Knoxville, Oct. 5, 2001), no Tenn. R. App. P.
11 application filed) (citing State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim.
App. 1999)).
If the trial court revokes the defendant’s community corrections sentence,
then it may “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, less any time actually served in the
community-based alternative to incarceration.” T.C.A. § 40-36-106(e)(4). The
Supreme Court has said that “the sentencing of a defendant to a community based
alternative to incarceration is not final, but is designed to provide a flexible
alternative that can be of benefit both to the defendant and to society.” State v.
Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Moreover, a “defendant sentenced
under the [Community Corrections Act] has no legitimate expectation of finality in
the severity of the sentence, but is placed on notice by the Act itself that upon
revocation of the sentence due to the conduct of the defendant, a greater sentence
may be imposed.” Id. When the trial court chooses to resentence a defendant to a
more severe sentence, however, it may only do so after conducting a new
sentencing hearing in accordance with the Sentencing Act of 1989. State v. Crook,
2 S.W.3d 238, 240 (Tenn. Crim. App.1998). The trial court may not arbitrarily
increase the length of the sentence and must state on the record the reasons for the
new sentence. State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996).
In the present case, the trial court made the following findings when it
revoked the Defendant’s probation:
When Judge Jones restructured these sentences from an
effective eight year sentence to a 12 year sentence on January 19 th of
2010, . . . and reinstated [the Defendant] to community correction, a
reasonable person would have considered that to be [] at a minimum
a second chance, and would have understood that the consequences
of then violating the terms and conditions of the community
correction would likely be confinement. Despite that [the
Defendant] did not report as ordered, virtually from the day he was
in court; and his explanation is just insufficient to convince this
Court that if given another chance he would likely comply. So the
Court is ordering him to satisfy the sentences in confinement at the
Department of Correction.
In this case, the record supports the trial court’s finding that the Defendant
violated the terms of his community corrections sentence. In the only proof
offered at the violation of community corrections hearing, the Defendant testified
that he failed to report to his probation officer. Thus the evidence supports the trial
court’s finding that the Defendant failed to report which was a condition of his
community correction sentence. The record therefore establishes that the
Defendant failed to comply with the terms of his sentence. As such, we conclude
that the trial court’s revocation of the Defendant’s community corrections sentence
was not an abuse of discretion. Also, it was appropriate for the trial court to order
the Defendant to serve his entire remaining sentence by incarceration. The
Defendant is not entitled to relief.
The State requests that this Court remand this case for a sentencing hearing
because the trial court did not hold a hearing when it restructured the Defendant’s
sentence. Based upon our review of the record before us, the Defendant appeared
on the first violation on January 19, 2010, waived his right to a hearing and
admitted that he was in violation. The trial court found him in violation,
restructured his sentence from concurrent sentencing to consecutive sentencing,
and reinstated the Defendant to community corrections. The trial court entered an
order on January 27, 2010 reflecting the change to the Defendant’s sentence of
concurrent sentences to consecutive sentences. The Defendant did not appeal this
change to his sentence at the appropriate time or even now in his current appeal.
We choose in this case to review only the issue which is before us and properly
raised by the Defendant. That issue is whether the evidence in the record
preponderated against the trial court’s finding that the Defendant violated the
conditions of his community corrections sentence, and whether the trial court erred
by ordering the sentence to be served by incarceration.
III. Conclusion
Based on the foregoing reasoning and authorities, we conclude the trial
court properly revoked the Defendant’s community corrections sentence and
ordered the remainder of the sentence to be served by incarceration. As such, we
affirm the judgment of the trial court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE