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State v. Julian

Court of Criminal Appeals of Tennessee, Knoxville

August 30, 2019

STATE OF TENNESSEE
v.
CLARENCE REED JULIAN

          Assigned on Briefs July 24, 2019

          Appeal from the Criminal Court for Knox County No. 114178 Steven Wayne Sword, Judge

         Defendant, Clarence Reed Julian, pled guilty to criminal simulation in exchange for a sentence of two years as a Range II, multiple offender with the manner of service of the sentence to be determined after a sentencing hearing. At the hearing, the trial court denied an alternative sentence, ordering Defendant to serve the sentence in incarceration. Defendant appeals. After a review, we determine there is a clerical error in the judgment form. The judgment form wrongly designates Defendant as a Range I, standard offender and the technical record indicates that Defendant, as a Range I offender, has already received the benefit of Determinate Release from the Department of Correction. We remand for entry of a corrected judgment form, designating Defendant as a Range II, multiple offender, requiring Defendant to complete his sentence as such an offender. Otherwise, we affirm the trial court's denial of alternative sentencing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed and Remanded for Entry of Corrected Judgment

          Michael Cabage, Knoxville, Tennessee, for the appellant, Clarence Reed Julian.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Camille R. McMullen and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Defendant was charged via information with criminal simulation on November 5, 2018, after Defendant passed a computer generated counterfeit check for $1791.23 at Smart Bank. Defendant waived his right to be tried on an indictment and/or presentment and ultimately pled guilty as charged. The State recommended a sentence of two years as a Range II, multiple offender and payment of $1791.23 in restitution to Smart Bank and left Defendant the ability to "[a]pply for probation." According to the trial court minutes from November 5, 2018, Defendant was sentenced to two years as a Range II, multiple offender.

         On December 13, 2018, the trial court held a sentencing hearing to determine whether Defendant would receive an alternative sentence. Trial counsel acknowledged Defendant's lengthy criminal history and "Strong-r" score of "High" on his presentence report Risk and Needs Assessment indicating that Defendant would need to be placed on "[e]nhanced" probation if the trial court granted probation. Trial counsel also informed the trial court that Defendant had "an open [probation] violation out of Roane County."

         The trial court determined that Defendant had a 25-year criminal history, with multiple violations of both probation and parole and several violent convictions. The trial court recalled that Defendant pled guilty to the E felony of criminal simulation and got the minimum sentence of two years as a Range II offender but noted that Defendant had "reached a point, . . . where even if [he committed] a property crime, [he was] a danger to society" and it was no longer "appropriate to keep [him] in the community." The trial court acknowledged the multiple attempts at probation and parole had failed and "nothing in the record indicates . . . that [Defendant is] a good candidate for probation or amenable to rehabilitation." The trial court denied probation and sentenced Defendant to serve his sentence in the Tennessee Department of Correction with credit for time served prior to sentencing. The trial court entered the judgment on December 13, 2018. Defendant filed a timely notice of appeal.

         Analysis

         On appeal, Defendant argues that the trial court did not "review" or "consider" the sentencing guidelines prior to fashioning Defendant's sentence. Instead, Defendant argues that the trial court "had already made up its mind before the hearing" and, as a result, abused its discretion. The State disagrees.

         At the outset, we note that the judgment form indicates that Defendant was sentenced as a Range I, standard offender. This is in conflict with the court minutes and the transcript of the sentencing hearing, both of which indicate that Defendant was sentenced as a Range II, multiple offender. When there is a conflict between the judgment and the transcript of the trial court's statements, the transcript controls. State v.Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991) (citing State v. Zyla, 628 S.W.2d 39, 42 (Tenn. Crim. App. 1981); Farmer v. State, 574 S.W.2d 49, 50 (Tenn. Crim. App. 1978)); see also State v. Brent Rowden, No. M2012-01683-CCA-R3-CD, 2013 WL 4774131, at *12 (Tenn. Crim. App. Sept. 5, 2013). On remand, ...


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