State of Tennessee v. Herman Sowell, Jr.

Citation: Not availableDocket: M2008-02358-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; March 17, 2010; Tennessee; State Appellate Court

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Herman Sowell, Jr. appeals the dismissal of his motion to modify his four-year confinement sentence to a suspended sentence, arguing that the trial court abused its discretion by finding no change in circumstances warranting the modification. Sowell had entered a guilty plea for theft of property valued between $1,000 and $10,000, with an agreed sentence that included confinement. His motion for reduction, filed on June 27, 2008, was based on his wife's pregnancy complications requiring bed rest, which hindered her ability to work and manage their household finances. Sowell claimed that probation would allow him to return to work as a barber and support his family. During the hearing, Sowell acknowledged he was sentenced as a Range II multiple offender, despite qualifications for Range III due to prior convictions, and noted that the plea agreement included the confinement term. His wife testified about their financial struggles and her inability to work due to her pregnancy. The trial court affirmed the original sentence without modification.

Ms. Sowell's physician, Dr. Gina Hamrang, confirmed that Ms. Sowell was under care for her pregnancy from February 27, 2008, until May 16, 2008, with an estimated delivery date of November 2, 2008. Hemorrhaging was noted on March 12, 2008, and Ms. Sowell was prescribed bed rest starting April 9, 2008.

The State contends that the trial court lacked jurisdiction to consider the Defendant's motion for sentence reduction because he had been transferred to the Department of Correction when the motion was filed. Tennessee Code Annotated section 40-35-212(d)(1) states that the trial court retains jurisdiction over a defendant until they are physically transferred to the Department, except under specific circumstances. The trial court may reduce a sentence under Rule 35 within 120 days of sentencing or probation revocation, and the court is not required to hold a hearing for such motions.

In the case of State v. Elvin Williams, the court ruled that jurisdiction is lost once a defendant is transferred. However, contrary decisions were made in Joseph C. Edenfield and State v. Lovard D. Horton, which held that a trial court could still exercise jurisdiction over a Rule 35 motion filed within the 120-day window, even if the defendant had been transferred. The reasoning from Horton was found persuasive, leading to the conclusion that the trial court could consider the Defendant's motion, as it was filed within the allowed timeframe. It was noted that Rule 35 does not guarantee a remedy as of right for the defendant.

The Advisory Commission Comments to Rule 35 indicate that a judge has the discretion to grant a hearing and modify a sentence, but is not required to do so. Modifications should only occur when it serves the interests of justice. A trial court's decision on a Rule 35 motion will only be overturned if there is an abuse of discretion. The Defendant's guilty plea was entered under Rule 11(c)(1)(C), which allows the State to agree to a specific sentence as part of a plea deal. In this case, the Defendant and the State agreed on a four-year sentence to be served in confinement. Modifications to such negotiated plea agreements are limited, although unforeseen circumstances might justify a sentence modification. The Defendant cited medical complications related to Ms. Sowell's pregnancy as grounds for modification, which impacted her ability to support her family. However, the trial court, while recognizing these unfortunate circumstances, concluded that they did not justify altering the sentence. An abuse of discretion occurs only if the trial court applies an incorrect legal standard or makes a decision that is unreasonable. After review, it was determined that the trial court did not abuse its discretion in denying the motion to modify the sentence, leading to the affirmation of the trial court's judgment.