Opinion
No. E2008-02782-CCA-R3-CD.
Assigned on Briefs September 22, 2009.
Filed December 8, 2009.
Direct Appeal from the Circuit Court for Blount County; Nos. C-16634-36; Jon Kerry Blackwood, Judge.
Judgment of the Circuit Court Affirmed.
Mack Garner (at trial), Maryville, Tennessee; and J. Liddell Kirk (on appeal), Knoxville, Tennessee, for the Appellant, Joshua Allen Hutton.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General; Michael L. Flynn, District Attorney General; Tammy M. Harrington, Assistant District Attorney General, for the Appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., J.J., joined.
OPINION
The Defendant, Joshua Allen Hutton, pled guilty to three counts of forgery, and the trial court sentenced him to a total effective sentence of three years to be served on probation. Probation violation warrants were issued for the Defendant, after which the trial court revoked the Defendant's probation and ordered him to serve the remainder of his sentence in the Tennessee Department of Correction. On appeal, the Defendant claims that the trial court abused its discretion by failing to impose a less restrictive alternative to confinement. After a thorough review of the record and the applicable law, we conclude the trial court properly exercised its discretion. Accordingly, we affirm the trial court's judgment.
I. Facts A. Background
In September 2007, the Defendant pled guilty to three counts of forgery and the trial court sentenced him to a total effective sentence of three years to be served on probation. In March 2008, based on an affidavit of the Defendant's probation officer, the trial court issued a warrant alleging the Defendant violated his probation. The affidavit cited the Defendant's: (1) February 2008 arrest for evading arrest and violating an order of protection; (2) failure to pay court costs and restitution; and (3) assaultive, abusive, threatening, or intimidating behavior. Upon agreement of the State and the Defendant the trial court dismissed the warrant. In May 2008, however, the Defendant's probation officer filed another affidavit, alleging the Defendant violated his probation by being arrested for fraudulent use of a credit card, theft of property, public intoxication, and by failing to pay court costs and restitution. The affidavit was amended to add that the Defendant also violated his probation by being arrested for criminal responsibility of another, forgery, ID theft, and theft under $500. Again, a warrant, based on these allegations, was issued.
On September 24, 2008, the Defendant pled guilty in Blount County to driving on a revoked license, altering a government-issued photographic ID, fraudulent use of a credit card, theft of a motor vehicle, forgery, theft, and two counts of identity theft. The Defendant and the State agreed to a four-year sentence for these guilty pleas, to be served consecutively to the Defendant's three-year sentence in this case, with the trial court to determine the manner of service. The Defendant stipulated that he violated his probation in this case. On December 5, 2008, the trial court held a hearing to dispose of the Defendant's violation of probation in this case and to determine the manner of service of the sentence resulting from his most recent charges.
At the hearing, the State entered a presentence report, which is not included in the technical record of this appeal, and the Defendant testified. At the time of the hearing, the Defendant was twenty-four years old, divorced, and the father of a two-year-old daughter. The Defendant's grandparents adopted the Defendant at an early age and raised him. The Defendant began to consume alcohol at age seventeen, tried marijuana at age nineteen, and experimented with other drugs, eventually developing a habit of using cocaine once every two weeks. The Defendant recalled he was adjudicated a "juvenile delinquent" for running away from home, "being unruly," and committing several acts of vandalism.
The Defendant obtained his G.E.D. and enlisted in the National Guard. He served in the National Guard for approximately three-and-a-half years until he was forced to resign because the terms of the probation sentence he received in this case prohibited him from carrying a firearm.
The Defendant explained that he committed the forgeries in this case by stealing checks from his employer and using the checks to obtain cash for drugs. The Defendant testified that, although he denied being addicted to drugs and needing drug treatment when he was originally sentenced to probation, he did in fact have a drug problem at the time. He explained that he lied about his drug addiction to avoid being discharged from the National Guard. While on probation, the Defendant lived with his grandparents and worked various construction and food industry jobs. He testified that he never stopped using drugs while on probation and that he never paid his court-ordered fees. His drug use gradually increased, and he began stealing credit cards from acquaintances in order to fund his drug use until he was arrested in April 2008 for this behavior. While he was in jail between his April 2008 arrest and the December 5 hearing, the Defendant was involved in an altercation with another inmate, for which the Defendant was placed in "lockdown" for a week.
The Defendant insisted his drug addiction was real and severe, attributing his previous denial of drug use to his fear of being ejected from the National Guard. He asked the trial court to allow him to try to "fix everything on [his] own" and require him to complete drug treatment rather than require him to serve his sentence in confinement. He testified he would attend school if he received an alternative sentence.
On cross-examination, the Defendant recalled that he was placed on probation as a juvenile when he was fourteen years old but, as a result of various violations, was committed to the Department of Children's Services and placed in a group home. After he assaulted someone in the group home, he was assigned to Taft Youth Development Center, a maximum security juvenile facility. The Defendant "graduated" from Taft after seven months and was allowed to "step down" to a group home, where he lived until he turned eighteen.
After he was released from DCS custody, the Defendant soon committed several crimes, including assault and vandalism. In 2005, the Defendant committed a string of traffic offenses and pled guilty to cocaine possession. The Defendant admitted that, between 2005 and his arrest on the charges in this case, he was charged with public intoxication. He also admitted that, after he was placed on probation in this case, he was charged with having committed theft, driving on a revoked license, domestic violence, and resisting arrest while on probation. The Defendant testified that he was using Hydrocodone, Oxycontin, alcohol, and cocaine up until the time of his most recent arrest.
The Defendant again expressed his wish to complete his sentence in a halfway house, but he acknowledged that the jail altercation that resulted in a "lockdown" disqualified him from Blount County Drug Court. Also, he acknowledged that, while serving previous probated sentences, he had also committed crimes, although his probated sentences were never revoked.
The Defendant acknowledged that he was involved in a second altercation in jail that he did not mention on direct examination, but he explained he was not forced into "lockdown" as a result of this altercation. He confirmed that the victims of the forgeries he committed in this case included several acquaintances, his grandmother, and Emily Boldick, whose order of protection against him he violated before he was arrested in April 2008.
At the conclusion of the hearing, the trial court revoked the Defendant's probation sentence in this case and ordered him to serve the remainder of his sentence in confinement. Also, the trial court accepted the parties' agreed sentence of four years for the Defendant's May 2008 charges, and it ordered the Defendant to serve the four-year sentence in confinement, consecutive to his three-year sentence in this case. On December 17, 2008, the trial court entered a written order reflecting its December 5 ruling. It is from this judgment revoking his probation and ordering confinement that the Defendant now appeals.
II. Analysis
The Defendant concedes he violated the terms of his probation sentence but contends the trial court erred when it ordered him to serve the remainder of his sentence in confinement because the crimes he committed in violation of his probated sentence were committed in order to fund his drug addiction. The Defendant argues that ordering him to complete drug treatment would better serve the public interest of preventing further criminal conduct than requiring him to serve the remainder of his sentence in confinement.
When a trial court determines by a preponderance of the evidence that a probationer has violated the conditions of his or her probation, the trial court has the authority to revoke probation. T.C.A. § 40-35-311(e) (2006). Upon finding that the defendant has violated the conditions of probation, the trial court may revoke the probation and either: (1) order incarceration; (2) order the original probationary period to commence anew; or (3) extend the remaining probationary period for up to two additional years. State v. Hunter, 1 S.W.3d 643, 644 (Tenn. 1999); see T.C.A. §§ 40-35-308, -310, -311 (2006). The defendant has the right to appeal the revocation of his probation and entry of his original sentence. T.C.A. § 40-35-311(e). After finding a violation, the trial court is vested with the statutory authority to "revoke the probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered. . . ." Id.; accord Hunter, 1 S.W.3d at 646 (holding that the trial court retains the discretionary authority to order the defendant to serve his or her original sentence in confinement). Furthermore, when probation is revoked, "the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revocation of such suspension. . . ." T.C.A. § 40-35-310 (2006).
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). This Court will uphold a trial court's judgment to revoke probation unless the trial court abused its 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 void 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).
In this case, the trial court revoked the Defendant's probation and ordered him to serve the remainder of his sentence in confinement. On appeal, the Defendant concedes he violated his probation. Indeed, the Defendant admitted at his revocation hearing that he failed to pay his fees and that he committed several crimes, including theft, domestic violence, and public intoxication, while he was serving the probated sentence in this case. As such, substantial evidence supports the trial court's conclusion that the Defendant violated his probation. See Harkins, 811 S.W.2d at 82.
The trial court also ordered the Defendant to serve the four-year sentence from the crimes he committed while on probation in confinement.
The Defendant directs his objection to the trial court's refusal to allow him to serve the remainder of his sentence in either a drug treatment facility or a half-way house. The trial court explained that the Defendant's recurrent criminal conduct in spite of measures less restrictive than confinement supported its decision to deny such an alternative sentence:
The Court finds that by his own admission he was using drugs while he was on probation. This offense was committed while he was on probation. The Court finds that he has a lengthy history of not only felony convictions, but misdemeanor convictions. Measures less restrictive than confinement have been applied to the Defendant unsuccessfully. And, finally, his lack of candor, his long history of criminal convictions, his behavior in jail while awaiting disposition of these charges leads the Court to the inescapable conclusion that his amenability to the rehabilitation process is as dubious. And therefore all relief is denied, and he will be ordered to serve his sentence.
We conclude the trial court did not abuse its discretion when it ordered the Defendant to serve the remainder of his three-year sentence in confinement. The Defendant admitted that, while serving a previous term of probation, he committed several crimes, although these crimes did not lead to revocation of that probation. While on probation in this case, the Defendant continued to use illegal drugs, committed numerous theft-related crimes, committed domestic violence, and was engaged in two altercations in jail. Although the Defendant's drug use has undoubtedly contributed to his criminal behavior, the nature and frequency of his criminal conduct suggests that another sentence of alternative release would not be successful. As such, the trial court did not abuse its discretion when it ordered the Defendant to serve the remainder of his sentence in confinement. The Defendant is not entitled to relief.
III. Conclusion
Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court.