Opinion
No. E2008-01629-CCA-R3-CD.
Filed May 27, 2009.
Appeal from the Circuit Court for Sevier County; Nos. 11569-III and 11926-III; Rex Henry Ogle, Judge.
Judgments of the Criminal Court are Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
Sherri E. Freels, Nashville, Tennessee, pro se.
Robert E. Cooper, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; James B. Dunn, District Attorney General; and Emily Faye Abbott, Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Joseph M. Tipton, P.J., and James Curwood Witt, Jr., J., joined.
MEMORANDUM OPINION
The defendant, Sherri E. Freels, appeals from the trial court's orders revoking her probation. Her counsel filed an initial brief pursuant toAnders v. California, 386 U.S. 738 (1967), and moved this court for permission to withdraw as counsel pursuant to Rule 22 of the Rules of the Court of Criminal Appeals. On M arch 17, 2009, this court granted counsel's motion to withdraw and allowed the now pro se defendant an opportunity to file a brief on the merits. To this date, the defendant has not filed an advocate's brief. Accordingly, pursuant to Rules 22(F) and 20 of the Rules of the Court of Criminal Appeals, this court concludes that the trial court's revocation orders should be summarily affirmed.
The record reflects that on June 5, 2007, the defendant pled guilty to introduction of contraband into a penal institution and received a sentence of six years suspended to supervised probation upon the completion of alcohol and drug assessment, one hundred hours of community service, and continued cooperation with an ongoing Tennessee Bureau of Investigation case involving her codefendants. Subsequently, on June 5, 2007, the defendant pled guilty to driving under the influence (DUI) and received a sentence of eleven months and twenty-nine days suspended to probation to be served concurrently with the previously imposed probationary sentence. On June 24, 2008, the trial court revoked both probationary sentences and ordered the defendant to serve her sentences in confinement based upon the defendant's new arrest for second offense DUI, resisting arrest, and possession of a Schedule IV drug. The defendant filed a timely notice of appeal from each revocation order.
The decision to revoke probation is in the sound discretion of the trial judge. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn.Crim.App. 2005); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.Crim.App. 1991). The judgment of the trial court to revoke probation will be upheld on appeal unless there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). To find an abuse of discretion in a probation revocation case, the record must be devoid of any substantial evidence that would support the trial court's decision that a violation of the conditions of probation occurred. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn.Crim.App. 1980). Proof of a probation violation is sufficient if it allows the trial court to make a conscientious and intelligent judgment. State v. Milton, 673 S.W.2d 555, 557 (Tenn.Crim.App. 1984). In reviewing the trial court's finding, it is our obligation to examine the record and determine whether the trial court has exercised a conscientious judgment rather than an arbitrary one.See Mitchell, 810 S.W.2d at 735.
The testimony and exhibits presented at the probation revocation hearing support the trial court's finding that the defendant violated the conditions of her probation by re-offending during the probationary period. Upon due consideration of the pleadings, the record, and the applicable law, the court concludes that the record supports the trial court's revocations of probation and imposition of a sentence in confinement. Accordingly, the judgments of the trial court are affirmed in accordance with Rules 22(F) and 20, Rules of the Court of Criminal Appeals.