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State v. Crites2/9/1999
Mark Crites appeals from the revocation of his community corrections sentence. He challenges both the propriety of that revocation and his resentencing, arguing that: (1) the trial court abused its discretion in revoking his community corrections sentence; (2) the trial court misapplied certain enhancement factors and that his sentences are, therefore, excessive; and (3) the trial court erred in ordering consecutive sentencing. After careful review of the record and arguments of counsel, we conclude the trial court relied upon improper evidence in revoking the community corrections sentence. We remand for another revocation hearing.
I. PROCEDURAL BACKGROUND
On July 18, 1996, the appellant pled guilty to one count each of burglary and theft over $500. He was sentenced to consecutive terms of two years for the burglary and one year for the theft. Except for five months in the Sumner County Jail, these sentences were to be served on community corrections.
On April 23, 1997, a warrant was issued for the appellant's violation of his community corrections sentence. This warrant alleged that the appellant had been arrested on January 23, 1997, on charges of theft over $1,000 and evading arrest. On June 17, 1997, the warrant was amended to allege the following additional violations:
"(1)Positive drug screen for marijuana and cocaine on June 6, 1997;"
"(2)Positive drug test for cocaine from SmithKline Laboratory;"
"(3)Admitted to smoking marijuana in jail about three weeks prior to drug screen;'
"(4)Failure to pay court costs;"
"(5)Arrested on June 11, 1997, in Franklin, Tennessee on the following charges:"
"(a)DUI, fifth offense;"
"(b)Driving on a revoked license, eighth offense;"
"(c)Disorderly conduct;"
"(d)Evading arrest; and"
"(e)Habitual offender."
Following a hearing, the trial court found "that Mr. Crites has been charged with [additional offenses] . . . and is simply not suitable for a community-based program." No findings were made as to the other grounds alleged in the warrant. The community corrections sentence was revoked.
In a subsequent sentencing hearing, the trial court found two applicable enhancement factors: the appellant has a history of unwillingness to comply with the conditions of a sentence involving release in the community, see Tenn. Code Ann. § 40-35-114(8); and the felonies were committed while the appellant was serving a community-based sentence, see Tenn. Code Ann. § 40-35-114(13). The trial count acknowledged no mitigating factors. Based on these findings, the trial court revoked the appellant's community corrections sentence and resentenced him to the Range I maximums of four years' incarceration for the burglary conviction and two years for the theft. The trial court further ordered these sentences to run consecutively, finding that the appellant has an extensive record of criminal activity, see Tenn. Code Ann. § 40-35-115(b)(2), and that consecutive terms of confinement "reasonably relate to the seriousness of the offenses" and are "necessary to protect society from this man." See Tenn. Code Ann. §§ 40-35-102, -103; State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
II. VIOLATION OF COMMUNITY CORRECTIONS
The appellant first argues that the trial court erred in revoking his community corrections sentence. Whether to revoke a community corrections sentence is a decision committed to the sound discretion of the trial court. We review that decision for abuse of discretion. However, this Court will not upset the trial court's decision on appea
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