Appellate panel hears challenge to increased sentence after community corrections violation

A Tennessee appellate panel heard oral argument Tuesday in State of Tennessee v. Saeed Janae Burrow over whether a trial court properly increased Burrow's sentence after finding she violated community corrections.

In a 30-minute argument, defense attorney Pat McNally asked the court to set aside the resentencing or conduct de novo review, arguing the trial court "did not consider and weigh the relevant sentencing factors" required under the Sentencing Act and the Community Corrections chapter. McNally told the court that Burrow had been on community corrections and, after being arrested on an evading-arrest charge while driving about 120 miles per hour, was found to be in possession of about one gram of crack cocaine; she pleaded guilty and received a two-year sentence that was run consecutive to an increased sentence imposed following the community-corrections violation hearing.

McNally argued the trial judge focused only on whether incarceration was appropriate and on consecutive sentencing, and failed to place on the record consideration of mitigation and enhancement factors from the pre-sentence investigation (PSI) and the Tennessee Department of Correction risk-and-needs assessment. McNally said the judge's remark at resentencing that "it doesn't look like we're looking at mitigation or enhancement factors" and another comment, "I told you when you plead guilty that this would be your last opportunity," suggested a predetermined disposition that precluded the statutorily required resentencing analysis.

Caroline Weldon, arguing "on behalf of the state," told the panel the record shows the trial court did engage with mitigation evidence and the PSI. "This court should affirm the trial court's decision to revoke the defendant's sentence of 10 years community corrections," Weldon said, arguing the judge considered the PSI, a letter from the defendant's mother and the TDOC assessment, questioned the defendant at length, and made findings about the defendant's criminal history and the need to protect the public.

During questioning, a panel member identified in the transcript as General Wood asked whether the trial court had said it was "past" enhancement and mitigating factors; state counsel answered that the court made that remark earlier but then proceeded to explore those factors and to make findings about history of criminal convictions, drug use and dangerous driving. Defense counsel acknowledged that some prior convictions existed but urged that the court's resentencing record lacked the required factual findings to justify a 60% increase in the aggregate sentence.

McNally emphasized mitigation offered at resentencing: letters from employers about Burrow's work history, evidence of untreated mental-health issues and strong family ties, and the PSI's risk-and-needs material. He said two PSIs existed and that the TDOC report (referred to in the hearing as the risk-and-needs or "strong-arm" report) was not addressed in the resentencing statement.

Weldon responded that the trial court expressly considered the pre-sentence report when it admitted it into evidence and read mitigation letters on the record, and that the court ultimately found confinement and partly consecutive alignment of sentences appropriate given the defendant's conduct, prior convictions and failure to take advantage of prior opportunities for treatment and stability in Michigan.

No decision was announced at the oral argument. After hearing rebuttal from McNally reiterating that key mitigation was not reflected in the court's resentencing pronouncement, the appellate panel said it would take the matter under advisement. The court recessed and scheduled further proceedings at 1:30 p.m.

Background details discussed at argument: the defendant had been supervised on community corrections, was arrested for felony evading after tires were deflated by spike strips, had approximately one gram of crack cocaine on her person at arrest, and had a 16-year-old passenger in the vehicle. Defense counsel proposed a 12-year aggregate sentence as an alternative remedy, while acknowledging the underlying felony-evading conviction merited punishment.

The panel's eventual ruling will determine whether the resentencing complied with the Sentencing Act and the community-corrections resentencing requirements and whether appellate review should apply a presumption of reasonableness or permit de novo review based on an inadequate record of statutory findings.