State of Tennessee v. Christopher Lindsey ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 18, 2016
STATE OF TENNESSEE v. CHRISTOPHER LINDSEY
Appeal from the Criminal Court for Sullivan County
Nos. S56,998 & S58,126 Jerry R. Beck, Judge
No. E2015-02135-CCA-R3-CD – Filed July 6, 2016
The Defendant, Christopher Lindsey, appeals from the trial court‟s revocation of his
community corrections sentence and order that he serve the balance of his sentence in
confinement. On appeal, the Defendant contends that the trial court erred in admitting a
certified copy of his nolo contendere plea to a shoplifting charge in violation of
Tennessee Rule of Evidence 410; that the court erred by “tolling” his community
corrections sentence; and that the trial court did not properly calculate his pretrial jail
credits or credit for time served on community corrections. Following our review, we
affirm the judgments of the trial court. However, we remand this case to the trial court
for the correction of inaccuracies in the revocation order relating to the calculation of
credit for time-served.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.
Kenneth Hill, Kingsport, Tennessee, for the appellant, Christopher Lindsey.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Barry Staubus, District Attorney General; and Julie R. Canter, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On October 6, 2009, the Defendant was indicted in Case Number S56,998 for one
count of aggravated burglary and one count of theft of property valued at $1,000 or more
but less than $10,000. There are no original judgments forms in the record relating to this
case. On July 9, 2010, the Defendant was indicted in Case Number S58,126 for one
count of theft of property valued at more than $500 but less than $1,000. On July 14,
2010, the trial court entered a judgment in Case Number S58,126 upon the Defendant‟s
guilty plea.1 The court sentenced the Defendant as a Range I, standard offender to one
year and six months to be served on community corrections. The trial court ordered this
sentence to run consecutively to the sentence in Case Number S56,998.
On May 18, 2012, the trial court entered amended judgments in Case Number
S56,998. The amended judgments reflected that the Defendant had entered guilty pleas
to both counts in that case.2 For Count 1, aggravated burglary, the Defendant was
sentenced as a Range I, standard offender to four years, which was ordered to be served
on community corrections. The special conditions box of the judgment form contained a
statement that the amended judgment had been entered following a “Violation of
Community Corrections [H]earing” and that the sentence had been enhanced from three
years to four years. Also, the Defendant was ordered “to serve [ninety] days flat in the
Sullivan County Jail” before being “placed back into residential community corrections.”
The Defendant was awarded pretrial jail credits for August 17, 2009, through October 2,
2009, and for March 14, 2012, through May 10, 2012. For Count 2 in Case Number
S56,998, the theft of property conviction, the special conditions box again noted that the
judgment had been entered following a revocation hearing and that the Defendant‟s
community corrections sentence for that count was enhanced from two years to three
years, with ninety days to be served in confinement before his return to community
corrections supervision. The pretrial jail credits awarded were identical to those awarded
in Count 1. Counts 1 and 2 were ordered to be served concurrently. Therefore, as of the
entry of the May 18, 2012 judgments, the Defendant‟s total effective sentence in Case
Number S56,998 was four years, with ninety days to be served in confinement, after
which the Defendant would be transferred back to community corrections.3
On March 26, 2015, a violation of community corrections affidavit was filed,
alleging that the Defendant had violated supervision Rules 1 and 2.4 With respect to Rule
1, the affidavit alleged that the Defendant had been charged with shoplifting on January
1
The judgment reflects that the Defendant pled guilty, but the record on appeal does not contain a
transcript of the guilty plea submission hearing.
2
Again, the record contains no transcript of the guilty plea submission hearing for Case Number S56,998.
3
There is no mention of Case Number S58,126 in the amended judgments, but inclusion of that
consecutive sentence would bring the Defendant‟s total effective sentence for both cases to five years and
six months as of May 18, 2012.
4
Rule 1 dictated that the Defendant would “obey the laws of the United State[s] or any State in which
[he] may be, as well as any municipal ordinances.” Rule 2 required the Defendant to “report all arrests,
including traffic violations immediately, regardless of the outcome, to [his] Probation Officer/Counselor.”
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13, 2015; had been charged with taking contraband into a penal facility, schedule IV drug
violations, and possession of drug paraphernalia on February 12, 2015; and had been
charged with driving on a revoked license, failure to comply with the financial
responsibility law, driving without a valid vehicle registration, identity theft, unlawful
possession of drug paraphernalia, schedule II drug violations, and taking contraband into
a penal facility on March 4, 2015. The violation of Rule 2 was premised on the
Defendant‟s failure to report the above charges to his community corrections supervisor.
The trial court held a revocation hearing on October 12, 2015. Officer Abby Ford
of the Kingsport Police Department (“KPD”) testified that on March 4, 2015, she was on
patrol when she observed “a car that was trying to get around another vehicle that was
stalled in the . . . outside lane.” She pulled behind the stalled vehicle, exited her patrol
car, and approached the vehicle. She testified that the Defendant was in the driver‟s seat
and that there was a female passenger. Officer Ford asked both occupants for their
licenses, but “they said they didn‟t have [them,] so [she] got their names and dates of
birth” to try “to verify who they were.” She also asked for the car‟s registration and
proof of insurance, but the Defendant was unable to provide either. Officer Ford
obtained the Defendant‟s driving history and learned that his driver‟s license had been
revoked. Based on this information, Officer Ford placed the Defendant under arrest. The
Defendant was searched prior to being placed into the cruiser; the search produced no
contraband; and the Defendant was transported to jail.
While in the cruiser, Officer Ford again asked the Defendant what his name was,
and he told her it was “Christopher Lindsey.” According to Officer Ford, the Defendant
had initially told her that his name was “Amon Lindsey.” The Defendant explained that
Amon was his cousin and that Amon “wouldn‟t mind” the Defendant‟s using his name.
According to Officer Ford, before she took the Defendant to jail, she advised him
that he could be charged with a felony for bringing contraband into the jail. She said that
the Defendant denied having any contraband. Once they arrived at the jail, the Defendant
was searched again, and officers located “a blue pill crusher that contained [fourteen]
white pills” on his person. Officers also found a “cut pen that would . . . be used to . . .
snort the pills with.”
On cross-examination, Officer Ford agreed that she never saw the Defendant drive
the vehicle and that the car was stationary at the time she encountered it, although she
pointed out that “it had to be driven to that point.” With respect to the pill crusher and
“cut pen” recovered from the Defendant, Officer Ford agreed that she did not know of
any law making it a crime to snort medication that had been legally prescribed. She
could not recall if there was an investigation to determine whether the Defendant was
prescribed any medication at the time of his arrest.
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Stewart Ivy Canter, Jr., testified that he was a member of the John R. Hay House
staff and had been assigned to supervise the Defendant in the Community Corrections
Program since July 8, 2010. Mr. Canter testified that the present violation was the
Defendant‟s third violation of his community corrections supervision. According to Mr.
Canter, the Defendant was informed of the rules of his community corrections sentence
when he entered the program, and he had signed an “alternative sentencing order which
sets those rules out.”
Mr. Canter testified that the Defendant did not report the charges he incurred on
January 13, February 12, or March 4, 2015. Mr. Canter said that he did not discover
those charges until he performed a routine check of recent arrest records around March
16, 2015. According to Mr. Canter, as part of the Defendant‟s consent to abide by the
rules of the community corrections program, he agreed to “immediately” report any new
charges to Mr. Canter.
On cross-examination, Mr. Canter said that, at the beginning of his community
corrections sentence, the Defendant reported as required. Mr. Canter testified that he
filed the first violation affidavit against the Defendant for failure to report on February 2,
2012. Subsequently, the trial court held a revocation hearing5 addressing the failure to
report violation “along with . . . another violation for receiving . . . new charge[s] . . . .”
Mr. Canter said that the “new charge[s]” referred to Case Number S60,827, wherein the
Defendant was charged with several counts of theft, identity theft, and forgery.6
According to Mr. Canter, after the court imposed a total effective four-year
sentence to be served in incarceration in Case Number S60,827, Hay House requested
that the State file a motion to “toll” the Defendant‟s community corrections sentences in
Case Numbers S56,998 and S58,126 until the expiration of his sentence in Case Number
S60,827. On December 13, 2013, the trial court entered an “Order Tolling Sentence,”
which ordered that “[t]he Defendant[‟s] . . . suspended sentence in case S56[,]998 shall
be tolled until service of the [Tennessee Department of Correction (“TDOC”)] sentence
in case [S]60[,]827 is complete.” No reference is made to Case Number S58,126 in the
order.
Mr. Canter testified that, to his knowledge, the Defendant‟s sentence in Case
Number S60,827 had not yet expired. He said that after the order tolling the community
corrections sentence was entered, the Defendant “was told that he needed to continue to
report to his parole officer” but was not required to report to Hay House. However, Mr.
5
We assume that this is the May 10, 2012 revocation hearing referenced in the amended judgments for
Case Number S56,998.
6
The judgment forms for S60,827 state that the offense date was March 2, 2012, and list the sentence
imposed date as November 29, 2012.
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Canter testified that the Defendant “was actually still under a [c]ommunity [c]orrections
sentence at the time as well,” although he agreed that the Defendant was not “making
[any] time on the [community corrections] sentence.”
On re-direct, Mr. Canter gave the following explanation regarding the tolling
order:
The reason behind that order was that [the Defendant] was ordered to serve
the sentence that he had received on the new charges [in Case Number
S60,827]. And therefore, if [the court] had not done that order, he would
have continued building time on the [c]ommunity [c]orrections sentence.
And the — but the new case was running consecutive to [Case Numbers
S56,998 and S58,126], so we had to do that in order to keep him from
double[-]dipping into his time.
Mr. Canter testified that the Defendant had most recently signed a supervision
order for his community corrections sentence on November 27, 2013.
Following this testimony, all parties agreed to reconvene on October 15, 2015 to
present further proof regarding the violations alleged in the affidavit. However, before
recessing, the trial court also found the Defendant not guilty of the violation of Rule 2,
the failure to report new arrests or charges to his supervisor. The court stated that based
on the tolling order and “using the ordinary definition of „tolling,‟ it could be that a
defendant could be misunderstood [sic] [be]cause of that language.”
At the October 15 hearing, the State sought to introduce a certified copy of the
Defendant‟s conviction for shoplifting. The Defendant objected based on Tennessee
Rule of Evidence 410, arguing that because the Defendant had entered a nolo contendere
plea, the document was not admissible. The court overruled the objection, stating only
that “it shows a conviction on a plea of nolo contendere.”
KPD Officer Ray Mailloux testified that on February 12, 2015, he responded to a
report of a black Honda driving recklessly. Officer Mailloux observed the vehicle
driving on the shoulder for fifty to sixty feet, and he initiated a traffic stop. He said that
the Defendant was the driver and sole occupant of the vehicle. Officer Mailloux
discovered that the Defendant‟s license had been revoked, and he took him into custody
for driving on a revoked license and failure to maintain his lane. Officer Mailloux
searched the Defendant prior to placing him into his patrol car. According to Officer
Mailloux, he did not find any contraband on the Defendant, but he nevertheless asked
whether the Defendant had anything on his person, advising him that once he was taken
to jail, any contraband recovered would lead to felony charges. The Defendant denied
possessing anything illegal.
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Officer Mailloux transported the Defendant to jail, where he was placed in a
holding cell to await booking. Officer Mailloux testified that he “went to the . . . jail
office for just a second” and “hear[d] handcuffs rattling around from [the Defendant‟s]
holding cell.” When Officer Mailloux returned to check on the Defendant, he observed
that his handcuffs were no longer behind his back, “they were still „cuffed in the front
position[,] [a]nd he was facing a wall in the holding cell kind of fumbling around up near
his chest.” Officer Mailloux and the on-duty jailer entered the cell, and the jailer
searched the Defendant, recovering “a cut section of a . . . drinking straw that was
removed from his mouth; one white pill that was removed from his front left jacket
pocket; . . . [and] a small silver — looked like a cheese grater, almost, that was removed
from his pocket.” Officer Mailloux said that these items formed the basis of the
possession of drug paraphernalia charge and that they were consistent with items utilized
to misuse prescription medications or other illegal substances. Officer Mailloux said that
the pill recovered was sent to the Tennessee Bureau of Investigation (“TBI”) where
forensic testing revealed that it was alprazolam, a Schedule IV controlled substance.
On cross-examination, Officer Mailloux testified that he stopped the Defendant‟s
car after observing the car‟s two right tires cross the white fog line, saying that “his
vehicle was halfway on the shoulder.” He clarified that before transporting the
Defendant to jail, he asked him whether he had anything “illegal” on his person. Officer
Mailloux said that the straw confiscated from the Defendant did not contain any residue
and that the “grater” recovered was not sent to the TBI for testing.
The Defendant called Rebecca Wagers to testify. Ms. Wagers testified that she
worked at Marcum‟s Pharmacy and that one of her job duties was to maintain the
pharmacy‟s medical records, including prescription lists for customers. She said that the
Defendant was a customer of Marcum‟s Pharmacy and that he had filled prescriptions
there in the past. According to Ms. Wagers, the Defendant had a prescription for
alprazolam in February 2015.
In his closing argument, the Defendant asserted that there was a question as to
“whether he was even on probation or not” at the time of the charges that formed the
basis of the Rule 1 violations. The Defendant argued that the December 2013 order
tolling the suspended sentence in Case Number S56,998 had the effect of stopping his
community corrections sentence and discharged him from its attendant obligations. The
Defendant pointed out that Mr. Canter testified that the Defendant was no longer required
to report to Hay House and that he was not accruing any credit on his community
corrections sentence because the sentence in S60,827 had not yet expired.
The prosecutor offered the following response:
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[I]f Your Honor would look at my motion that I filed to toll the sentence, I
clearly state what happened. My motion was filed in March of 2013, and it
clearly states the Defendant was charged with a violation of [c]ommunity
[c]orrections in Case S56[,]998. And that was the case Your Honor gave
him [c]ommunity [c]orrections on.
He violated because he got a new charge. We resolved the violation
of [c]ommunity [c]orrections after a hearing, and the [c]ourt saw fit to give
him another chance and put him back in [c]ommunity [c]orrections. So that
closed this court‟s case out.
In the interim he had felonies pending in general sessions court.
Those were bound over to Judge Montgomery‟s court. Judge Montgomery
looked at his record, had a sentencing hearing, and said, “You know what,
I‟m not giving you a chance. You can go to the [TDOC] and serve your
sentence.”
At that time I came before the [c]ourt, I filed in writing a motion that
said, “The new charges in Case S60[,]827 are to be served in [TDOC]
consecutive to the case Your Honor had already given him a Hay House
sentence on.”
So that‟s why we tolled it, so that he could go ahead and go to the
[TDOC] and get that over with. And then when he served his [TDOC]
sentence that Judge Montgomery gave him, come back, meet with Mr.
Canter, and have the chance to be on [c]ommunity [c]orrections. And I
believe Mr. Canter testified yesterday that he met with him in 2013 after he
had finished with [TDOC], went over the rules with him, [and] had him
sign the rules. He knew he was on [c]ommunity [c]orrections.
So, I mean, that‟s where the history of the tolling comes in, just
because two courts did two different things.
The defense responded that the supervision order was signed by the Defendant in
November 2013 but that the tolling order was issued in December 2013. The Defendant
argued that “due process principles” should not allow the State to stop the accrual of
credit on his community corrections sentence while at the same time making him subject
to the rules of community corrections supervision and filing a violation warrant when he
did not adhere to those rules. The Defendant concluded that “his [community
corrections] sentence was [not] running, and therefore he [could not] be violated if his
sentence [was] not running.”
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Upon this proof, the trial court found the Defendant guilty of violating Rule 1 for
the reasons alleged in the affidavit: that the Defendant had been convicted of shoplifting
and had been charged with multiple new offenses following his arrests on February 12,
2015, and March 4, 2015. The court revoked the Defendant‟s community corrections
sentence and ordered his sentence of five years and six months into effect. The trial court
subsequently entered a revocation order crediting the Defendant with 632 days, broken
down as follows: eighty-four days for “initial” time spent in jail, from July 9, 2010, until
September 30, 2010; 490 days for time served on community corrections, from October
1, 2010, to February 2, 2012; and fifty-eight days for time spent in jail after a community
corrections violation warrant was filed, from March 14, 2012, to May 10, 2012.
This timely appeal followed.
ANALYSIS
The Defendant contends that the trial court erred in admitting the certified copy of
his conviction for shoplifting which resulted from a plea of nolo contendere, arguing that
its admission violated Tennessee Rule of Evidence 410. He asserts that this error entitles
him to a new revocation hearing. Further, the Defendant contends that the trial court
erred in “tolling” his sentences in Case Numbers S56,998 and S58,126, which deprived
him of credit for time served on community corrections. Finally, the Defendant contends
that the trial court improperly calculated his pretrial jail credit and credit for time served
on community corrections, as memorialized in the revocation order. The State responds
that the trial court did not err in admitting the shoplifting conviction. Alternatively, the
State says that any error was harmless because the trial court relied upon additional
conduct irrespective of the shoplifting conviction when revoking the community
corrections sentence. The State further responds that the Defendant has waived the issue
regarding tolling because he has provided an incomplete record for review. The State
also asserts that the Defendant has failed to show that he is entitled to additional pretrial
jail credits.
I. Tennessee Rule of Evidence 410
Evidentiary rulings generally rest within the sound discretion of the trial court, and
on appellate review, a trial court‟s decision to admit or exclude evidence will be
overturned only on a finding of an abuse of discretion. State v. Dubose, 953 S.W.2d 649,
652 (Tenn. 1997).7 Rule 410(2) provides that evidence of a plea of nolo contendere is not
7
Although not relevant to this case, we acknowledge that our supreme court has recently clarified that
“[t]he standard of review for rulings on hearsay evidence has multiple layers[,]” implicating both abuse of
discretion and de novo review. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).
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admissible in any criminal proceeding against the party who made the plea. Tenn. Rule
Evid. 410(2). However, although Rule 410(2) bars evidence of a plea of nolo contendere,
it does not exclude convictions resulting from such a plea where some other rule of
evidence allows. See Donald F. Paine et al., Tenn. Laws of Evid. §4.10[4] (6th ed. 2011)
(“[A] conviction based on a nolo contendere plea may be admissible to impeach under
Rule 609 or as substantive evidence under Rule 803(22).”) Tennessee Rule of Evidence
803(22) provides that criminal convictions punishable by death or imprisonment for more
than one year are admissible. However, we note that the State sought to introduce the
Defendant‟s misdemeanor shoplifting conviction, which would not qualify under Rule
803(22)‟s exception. See Paine et al., supra § 8.27[2][b] (noting that the rule “excludes
convictions in minor cases because of a concern that the conviction may be untrustworthy
as proof of the underlying facts”). Nevertheless, “the strict rules of evidence do not
apply” at a revocation hearing. Barker v. State, 483 S.W.2d 586, 589 (Tenn. Crim. App.
1972). The rules of the Defendant‟s community corrections supervision required that he
would “obey the laws of the United States, or any State in which [he] may be.” In the
limited context of a probation revocation hearing, the trial court did not abuse its
discretion by allowing the admission of the shoplifting conviction to prove the
Defendant‟s violation of the pertinent supervision rule. The Defendant is not entitled to
relief.
II. Suspension of Community Corrections Sentence
The Defendant next contends that the trial court “was without authority to „toll‟
[his] sentences in Case Numbers S56[,]998 and S58[,]126 and as a result the Order
Tolling Sentence was void and of no effect.” The State responds that this issue should be
treated as waived because the Defendant has provided an incomplete appellate record for
review and raised the issue for the first time on appeal. Alternatively, the State asserts
that the Defendant is not entitled to relief because the tolling order was proper and was
intended to keep the Defendant from “double-dipping,” i.e., from receiving credit for his
community corrections sentence while serving his incarcerative sentence in another case.
First, we agree that the Defendant raised this issue for the first time on appeal. In
the trial court, the Defendant argued that the December 2013 tolling order stopped his
community corrections sentence and, therefore, he could not be charged with violating
the rules of his community corrections supervision. On appeal, he takes the opposite
stance, arguing that the tolling order had no effect, that he has been serving his
community corrections sentence since it was reinstated on May 10, 2012, and that he
should have received credit from May 10, 2012, until the filing of the violation warrant
on March 26, 2015. Accordingly, this issue has been waived. See Tenn. R. App. P. 36(a)
(“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
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prevent or nullify the harmful effect of an error.”); see also State v. Maddin, 192 S.W.3d
558, 561 (Tenn. Crim. App. 2005) (“When an issue is raised for the first time on appeal,
it is typically waived.”). Based on this conclusion, we do not address the State‟s
assertion that the record is incomplete.
However, although we decline to address this issue as framed by the Defendant,
due to the apparent confusion surrounding the tolling order in the trial court, we take this
opportunity to briefly address the effect that the incarcerative sentence in Case Number
S60,827 had on the Defendant‟s community corrections sentence for Case Numbers
S56,998 and S58,126.
According to Mr. Canter‟s testimony, he first filed a violation warrant in the
Defendant‟s case on February 2, 2012. The Defendant was then arrested on March 2,
2012, and subsequently charged in a new case—S60,827. At the time of the May 10,
2012 revocation hearing, those new charges were still pending. Nevertheless, the trial
court chose to return the Defendant to community corrections. On November 2, 2012, a
different trial court sentenced the Defendant to four years in the TDOC for Case Number
S60,827. That sentence was ordered to be served consecutively to the community
corrections sentence for Case Numbers S56,998 and S58,126.
“When a trial judge . . . orders an intervening sentence of incarceration to run
consecutively to a suspended sentence, . . . the probationary term begins upon completion
of the intervening custodial sentence and custodial sentence includes both confinement
and parole.” State v. Malone, 928 S.W.2d 41, 44 (Tenn. Crim. App. 1995) (citing
Anderson v. Corall, 263 U.S. 193, 196 (1923)). In such cases, a defendant must serve the
period of confinement first. Id. After a defendant serves the intervening custodial
sentence, the probationary term resumes. Id.
In light of these principles, the trial court‟s “Order Tolling Sentence” was largely
superfluous because the Defendant‟s community corrections sentence for Case Numbers
S56,998 and S58,126 was stayed when he was ordered to serve an “intervening custodial
sentence” in Case Number S60,827. From the record, we cannot discern when the
Defendant was released from confinement in Case Number S60,827 or when that
sentence is set to expire. The four-year sentence in that case was imposed on November
29, 2012, but he received jail credit in that case beginning on June 2, 2012. Also, he had
obviously been released from incarceration by at least January 13, 2015, when he was
arrested for shoplifting.
Regardless, a trial court has the authority to revoke a suspended sentence for “pre-
probation conduct occurring during a period of parole.” Malone, 928 S.W.2d at 45.
Consequently, even if the Defendant is still on parole in Case Number S60,827, the trial
court had the authority to revoke the community corrections sentences for conduct that
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violated the terms of his community corrections supervision. “[I]f the trial court was
unable to revoke probation either during incarceration or parole, the [defendant] would be
provided a grace period in which his activity, no matter how heinous, would not affect his
probationary release into society.” Id. Accordingly, the trial court‟s “Order Tolling
Sentence” was not necessary to prevent the Defendant from receiving credit for
community corrections while he was in TDOC serving his custodial sentence. We see no
unfairness to the Defendant in this scenario—the trial court‟s actions had the effect of
ensuring that, because of the Defendant‟s repeated failures to follow the law, he would
not be afforded the opportunity to return to community corrections following the
expiration of his sentence in Case Number S60,827. Indeed, to conclude otherwise
would be to provide the Defendant with a “grace period” during his time on parole, in
which his illegal activities would have no effect on his suspended community corrections
sentence.
III. Pretrial Jail Credits
Finally, the Defendant asserts that the trial court failed to award him pretrial jail
credits for the “[ninety] days flat” that he was ordered to serve in Case Number S56,998
after the revocation hearing held on May 10, 2012. He also avers that the trial court
should have credited him for time served on community corrections from May 10, 2012,
until March 26, 2015. The State disagrees, arguing that there is no proof in the record
that the Defendant has served the ninety-day sentence.8
The amended judgments for Case Number S56,998 reflect that following the May
10, 2012 revocation hearing, the trial court ordered that the Defendant “serve [ninety]
days flat in the Sullivan County Jail . . . (with credit from [March 14, 2012]).” A total of
fifty-eight days, from March 14 to May 10, 2012, is credited in the trial court‟s
revocation order. Further, the judgment forms in Case Number S60,827 reflect that he
received pretrial jail credit in that case beginning on June 2, 2012. It is unclear whether
the Defendant was in custody from May 11, 2012, until June 1, 2012, a period of 22 days.
However, it seems likely that the Defendant was either in custody in Case Number
S56,998 on those dates or he had been released and should have received credit for
community corrections for those twenty-two days, a determination the trial court should
make on remand. Also, the judgment forms for Case Number S58,126 list a pretrial jail
credit of one day, for May 19, 2010, although that is not reflected in the revocation order.
Similarly, the judgments for Case Number S56,998 afford pretrial jail credits from
August 17, 2009, to October 2, 2009, but those credits are not reflected in the revocation
order either.
8
The State does not supply a response to the Defendant‟s request for additional community corrections
credit.
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Although the Defendant asserts that there are at least ninety days of pretrial jail
credits unaccounted for, he has pointed to nothing in the record showing when he could
have served that time following the May 10, 2012 revocation hearing.9
In addition to the above inaccuracies in the revocation order, there are internal
inconsistencies as to the length of the Defendant‟s total effective sentence for Case
Numbers S56,998 and S58,126. The revocation order should be corrected to reflect that
the total effective sentence for both cases is five years and six months. Also, as
previously discussed, from the record we cannot determine when the incarcerative
sentence in Case Number S60,827 expired or is set to expire. On remand, the trial court
needs to make this determination to ensure the proper calculation of sentence credit. If
the Defendant‟s sentence in Case Number S60,827 had expired before the March 26,
2015 violation warrant was filed, the Defendant would be entitled to community
corrections credit from the date that the sentence expired until the date the violation
warrant was filed.
Therefore, we remand to the trial court to determine whether the Defendant was in
custody during the twenty-two unaccounted for days or had been released back on
community corrections and for entry of a corrected revocation order reflecting the proper
credit for that time and to correct the total effective length of the Defendant‟s sentence.
Also, the revocation order should incorporate the pretrial jail credits memorialized in the
relevant judgment forms for May 19, 2010 and August 17, 2009 to October 2, 2009, 48
additional days. Finally, the trial court should determine when the sentence in Case
Number S60,827 expired or is set to expire and, based on that determination, whether the
Defendant is entitled to any additional credit on his community corrections sentence.
With respect to the Defendant‟s argument that he should have received community
corrections credit for service from May 10, 2012, until the March 26, 2015 violation
affidavit was filed, we refer to our earlier discussion explaining that the Defendant‟s
community corrections sentence was stayed during the service of his incarcerative
sentence in Case Number S60,827.
CONCLUSION
Based on the foregoing and the record as a whole, the judgments of the trial court
are affirmed. However, because we discern an error in the trial court‟s calculation of
credit for time-served, we remand this case for entry of a corrected revocation order as
9
Even if the trial court determines on remand that the twenty-two days that are unaccounted for were
spent in jail for Case Number S56,998, that would still only total eighty days when added to the period
beginning on March 14, 2012.
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outlined above. Also, the revocation order should reflect that the Defendant‟s total
effective sentence in these cases is five years and six months.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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