State of Tennessee v. Rachael Underwood ( 2019 )

10/17/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 27, 2019
STATE OF TENNESSEE v. RACHAEL UNDERWOOD
Appeal from the Circuit Court for Sevier County
No. 23791-III Rex H. Ogle, Judge
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No. E2018-02009-CCA-R3-CD
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Defendant-Appellant, Rachael Underwood, appeals from the Sevier County Circuit
Court’s order revoking her probation. She originally pled guilty to attempted delivery of
a Schedule I controlled substance and driving on a suspended license. She received a six-
year suspended sentence, after service of 180 days in jail. In this appeal, the Defendant
claims that the trial court erred in revoking her probation. Upon review, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and J. ROSS DYER, JJ., joined.
Amber D. Haas, Assistant Public Defender, for the Defendant-Appellant, Rachael
Underwood.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Jimmy B. Dunn, District Attorney General; and Charles L. Murphy,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On April 30, 2018, the Defendant entered a guilty plea to attempted delivery of a
Schedule I controlled substance and driving on a suspended license in exchange for the
dismissal of possession of a Schedule II controlled substance and possession of drug
paraphernalia. The Defendant received a six-year suspended sentence, after 180 days in
jail. On May 2, 2018, the Defendant was tested for drugs which revealed the presence of
opiates, amphetamines, methamphetamine, buprenorphine, and oxycodone. Two months
later, on July 30, 2018, the Defendant’s probation officer submitted an affidavit alleging
that the Defendant had violated the following terms of her probation:
Rule #4: The defendant has failed to provide proof of employment
since being placed on probation.
Rule #6: The defendant failed to report on June 5, 2018 as ordered.
Rule #8: The defendant tested presumptively positive for Opiates,
Amphetamines, Methamphetamine, Buprenorphine, and Oxycodone
on May 2, 2018. The defendant signed an admission of use stating
that she used Suboxone and Meth on or about 4/29/18. The sample
was sent for confirmation testing. On or about May 6, 2018
confirmation testing showed the sample positive for Amphetamine at
9672 ng/ml; Buprenorphine at 91 ng/ml; Norbuprenorphine at 228
ng/ml; Morphine at 1056 ng/ml; and Oxymorphone at 390 ng/ml.
Rule #9: The defendant has failed to provide proof of payment on
court costs, fines, restitution, or supervisions fees.
Rule #10: The defendant has failed to provide proof of completing
an alcohol and drug assessment.
Rule #10: The defendant has failed to provide proof of completing
the NAS program.
Rule #14: The defendant’s use of multiple illicit drugs places herself
and others at risk of harm.
At the Defendant’s violation of probation hearing, Keith Vincent, the Defendant’s
probation officer, testified that the Defendant appeared in his office for her initial
appointment on May 2, 2018, tested positive for several illicit substances, and had not
returned to his office since that day. He also testified that the Defendant was required to
turn herself in for a split confinement, but she failed to do so as well. The Defendant
testified and explained that she had been to a party a few days before she was placed on
probation, which was the reason for the presence of drugs in her system. She testified
further that she refused to turn herself in to serve the confinement portion of her sentence
because she had “two small children, and [she] wanted to spend the summer with them.”
When questioned by the Court, the Defendant responded:
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The Court: You just didn’t report to probation and didn’t report to serve
your jail sentence, did you?
The Defendant: Yes.
The Court: Isn’t that right?
The Defendant: Yes.
The Court: You know, I’ve been around a long time and I’ve never heard
an argument put quite the way that you’re putting it, that [you] just didn’t
really have time to do your time. That’s sort of what you’re saying, isn’t it?
That you voluntarily chose not to report to do your jail time that you agreed
to do; is that correct?
The Defendant: Yes.
The Court: And look, it’s your privilege to plead guilty or not guilty to
violating your probation. You’re obviously in violation. You flat out just -
- well, I mean, this is about as willful a case of violation of probation that
I’ve seen because you just flat out thumbed your nose at the Court, that you
were going to do what you wanted to do and it made no difference what
you had agreed to do nor what you had been ordered to do.
And so based upon that, the Court finds that you’re in willful
violation of your probation and I hereby order you to execute your
sentence.
From this order, the Defendant filed a timely notice of appeal and is now properly
before this Court.
ANALYSIS
In this appeal, the Defendant contends that the trial court abused its discretion in
revoking her probation. She specifically argues that the trial court abused its discretion in
considering her testimony at the hearing because the original warrant did not allege that
she had violated her probation by not turning herself in to serve her jail sentence. The
Defendant also argues that her failure to pass a drug test was due to drugs she had taken
prior to entering her guilty plea which should not have resulted in the revocation of her
probation. In response, the State contends that the trial court properly revoked the
Defendant’s probation. We agree with the State.
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After determining that a defendant “has violated the conditions of probation and
suspension by a preponderance of the evidence, the trial judge shall have the right . . . to
revoke the probation and suspension of sentence and cause the defendant to commence
the execution of the judgment as originally entered, or otherwise in accordance with § 40-
35-310.” Tenn. Code Ann. § 40-35-311(e) (2012). Probation revocation rests within the
sound discretion of the trial court, and this court will not disturb the trial court’s ruling
absent an abuse of that discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001)
(citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse of
discretion, “there must be no substantial evidence to support the conclusion of the trial
court that a violation of the conditions of probation has occurred.” Id. (citing Harkins,
811 S.W.2d at 82). Once the trial court decides to revoke a defendant’s probation, it may
(1) order confinement; (2) order the sentence into execution as initially entered; (3) return
the defendant to probation on modified conditions as necessary; or (4) extend the
probationary period by up to two years. See State v. Hunter, 1 S.W.3d 643, 646-47
(Tenn. 1999) (citations omitted); State v. Larry Lee Robertson, No. M2012-02128-CCA-
R3CD, 2013 WL 1136588, at *2 (Tenn. Crim. App. Mar, 19, 2013); State v. Christopher
Burress, No. E2012-00861-CCA-R3-CD, 2013 WL 1097809, at *6 (Tenn. Crim. App.
Mar. 18, 2013); Tenn. Code Ann. §§ 40-35-308, -310, -311 (2012). The trial court
determines the credibility of the witnesses in a probation revocation hearing. State v.
Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991) (citing Carver v. State, 570
S.W.2d 872 (Tenn. Crim. App. 1978)).
The record fully supports the determination of the trial court. As an initial matter,
to the extent that the Defendant is arguing a lack of notice because the affidavit
supporting the probation violation did not explicitly include her failure to report for
service of her 180 days, we note that the affidavit provided that “the defendant failed to
report on June 5, 2018 as ordered[.]” It additionally provided that the Defendant had
failed to comply with every other condition of probation that had been imposed by the
trial court. This was more than sufficient information for the Defendant to defend the
charges at the revocation hearing. Moreover, the Defendant’s probation officer testified
that the Defendant tested positive for illicit substances, failed to return as ordered for
future appointments, and failed to turn herself in to serve her jail sentence. The
Defendant testified and admitted that she had not turned herself in to serve her sentence
of split confinement because she wanted to spend time with her children before going to
jail for six months and that she had failed to report for her probation appointment as
directed. Based on this testimony, the trial court found that the Defendant had willfully
violated her probation by failing to report to her probation officer and failing to report to
jail to serve her sentence. Because there was ample evidence to support the trial court’s
determination the Defendant had violated her probation, the trial court did not abuse its
discretion in revoking her probation. The Defendant is not entitled to relief.
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CONCLUSION
Based on the above authority, the judgment of the Circuit Court of Sevier County
is affirmed.
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CAMILLE R. MCMULLEN, JUDGE
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