State of Tennessee v. Joshua Maurice Hickman ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2011
STATE OF TENNESSEE v. JOSHUA MAURICE HICKMAN
Direct Appeal from the Criminal Court for Davidson County
No. 2009-I-269 Mark J. Fishburn, Judge
No. M2010-01063-CCA-R3-CD - Filed June 8, 2011
The Defendant-Appellant, Joshua Maurice Hickman, appeals the revocation of his
community corrections sentence. He pled guilty in the Criminal Court of Davidson County
to possession with intent to sell a Schedule I controlled substance, a Class B felony.
Hickman was originally sentenced as a multiple offender to twelve years in the Tennessee
Department of Correction. Pursuant to the plea agreement, this sentence was suspended to
twelve years on community corrections. On appeal, Hickman concedes that he violated the
terms of the community corrections sentence. He argues, however, that the trial court abused
its discretion by imposing his original sentence. Upon review, we affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.
Ryan C. Caldwell, Nashville, Tennessee, for the Defendant-Appellant, Joshua Maurice
Hickman.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Janice
Norman, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
Background. Hickman began his community corrections sentence on October 28,
2009. Soon thereafter, Hickman’s case officer reported that Hickman violated the terms of
his sentence. On January 13, 2010, a warrant was issued alleging that Hickman tested
positive for drug use and was considered an absconder because he had failed to report to his
probation officer since November 25, 2009. Hickman conceded these violations at the
revocation hearing.
Michelle Casteel, Hickman’s case officer, testified that she met with Hickman on
November 2, 2009. Within twenty-three days of this meeting, Hickman admitted to using
cocaine and heroin. He claimed he relapsed with his father. Casteel said she gave Hickman
the option of getting inpatient treatment. Hickman, however, did not seek treatment. Casteel
stated, “[W]hen I talked to him again, he had not gotten inpatient treatment. He admitted that
he had left my office and still used that same day and did not get into inpatient treatment.”
Hickman reported that he had been using drugs and alcohol for fifteen years. Casteel said
Hickman lived with his parents, whom she believed were also drug addicts. Casteel testified
that Hickman had absconded for several months. On cross-examination, Casteel listed
several treatment options that were available to someone like Hickman, including a halfway
house.
Hickman, twenty-eight years old, corroborated Casteel’s testimony. He thought his
family enabled his drug use, and testified that he wanted to go to a halfway house. He stated
that before the violation, he tried to go to a drug treatment center called MeHarry. Hickman
said he was not able to complete the required medical tests by the time of the violation.
Defense counsel questioned Hickman about going to Drug Court:
Defense counsel: Well, one of the solutions I proposed to you was our
Drug Court. You said you didn’t want to [go]. Can you
tell the Court why you don’t want to go to Drug Court?
Hickman: I’m just tired of being locked up. I’m tired of doing
drugs. I’m through with it. I’m through doing drugs.
Hickman recognized that he needed help for his drug addiction, and stated that he
would do whatever was needed to go to a halfway house. Hickman testified that he tried to
find employment while on community corrections. He claimed he had several jobs in the
past. Hickman wanted to go to Transitions Housing, a half-way house which he claimed had
accepted him.1 Hickman acknowledged that he had prior convictions for facilitation of
aggravated robbery, aggravated assault, resisting arrest, and domestic assault.
1
The record contains no documentation that Hickman was accepted at a halfway house. Defense
counsel asserted at the hearing that Hickman was accepted by one. Hickman stated that he had a receipt from
Transitions Housing.
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On cross-examination, Hickman testified that he had been using heroin for three or
four years. He said he completed a drug treatment program called New Avenues in 2001.
After completing this program, Hickman was convicted of several felonies. Hickman
testified that he had previously received two probationary sentences, both of which he
violated.
Following the testimony at the revocation hearing, the trial court revoked the
community corrections sentence. It found that Hickman conceded the violations. The trial
court decided to impose the original sentence of confinement. It stated:
The Court’s . . . tired of people with drug addictions coming into Court and
acting as if they can go out tomorrow and take care of their problems. . . .
Someone who turns down the opportunities he’s got and says that they are tired
of being in jail has no motivation or desire to get off of heroin. And it’s an
insult to everybody here concerned to come in here and suggest, with his
history, and the violence that history has perpetrated–you know, he thinks that
he can walk out into a halfway house and life would be good again. Sentence
into effect.
Hickman appealed the trial court’s decision by filing a timely notice of appeal.
ANALYSIS
Hickman concedes that he violated the terms of his community corrections sentence.
He claims, however, that the trial court erred by revoking his sentence and imposing the
original term of confinement. Hickman argues that the trial court failed to address the
sentencing considerations under Tennessee Code Annotated section 40-35-103. In response,
the State claims the trial court properly revoked the community corrections sentence because
Hickman conceded the violation. The State asserts that the trial court “considered all the
necessary facts to effect the 12-year sentence previously agreed to by the State and the
defendant.”
The Tennessee Supreme Court has held that the same principles that apply in the
revocation of probation also apply in the revocation of community corrections. State v.
Harkins, 811 S.W.2d 79, 83 (Tenn. 1991). The revocation of community corrections, like
the revocation of probation, rests within the sound discretion of the trial court. Id. A trial
court may revoke either alternative sentence upon a finding by a preponderance of the
evidence that the defendant violated the conditions of the sentence. See T.C.A. §§ 40-35-
310, -311(e) (2009). An appellate court will uphold a trial court’s decision to revoke
probation or community corrections absent an abuse of discretion. State v. Beard, 189
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S.W.3d 730, 735 (Tenn. Crim. App. 2005); State v. Webb, 130 S.W.3d 799, 842 (Tenn.
Crim. App. 2003) (quoting Harkins, 811 S.W.2d at 82). In order to establish an abuse of
discretion, the defendant must show that there is no substantial evidence in the record to
support the trial court’s conclusion to revoke either of the alternative sentences. See State
v. Schaffer, 45 S.W.3d 553, 554 (Tenn. 2001). After a probation or community corrections
sentence has been revoked, the trial court may order the imposition of the original sentence.
T.C.A. §§ 40-35-311(e), -36-106(e)(4) (2009).
In this case, the trial court was authorized to revoke the community corrections
sentence. See T.C.A. §§ 40-35-311(e)(1), -36-106(e)(4); see also T.C.A. § 40-36-
106(e)(3)(B) (“Failure to comply with the terms of probation subjects the offender to
revocation proceedings conducted by the court pursuant to § 40-35-311.”). Hickman
admitted that he used cocaine and heroin while on community corrections. Additionally, the
case officer testified that Hickman failed a drug test and had not reported for several months.
The testimony at the revocation hearing provided substantial evidence that Hickman violated
the terms of his alternative sentence.
At issue is whether the trial court was permitted to impose Hickman’s original
sentence. Hickman claims the trial court abused its discretion because it failed to consider
the sentencing principles when deciding the issue of confinement. Specifically, he argues
that the trial court needed to address the considerations under Tennessee Code Annotated
section 40-35-103(1).2 This argument is misplaced. This court has repeatedly stated that the
trial court is only required to consider the sentencing principles when determining a
defendant’s original sentence. See State v. Derrick Michael Swanson, No.
E2004-02645-CCA-R3-CD, 2006 WL 448668, at *2 (Tenn. Crim. App., at Knoxville, Feb.
24, 2006) (citing State v. Walter Jackson, No. E1999-02186-CCA-R3-CD, 2001 WL 55687,
2
This statute states in relevant part:
(1) Sentences involving confinement should be based on the following considerations:
(A) Confinement is necessary to protect society by restraining a defendant who has a long
history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to others likely to
commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant[.]
T.C.A. § 40-35-103(1) (2009).
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at *2 (Tenn. Crim. App., at Knoxville, Jan. 24, 2001)); State v. Norico S. Woods, No.
W2000-00057-CCA-R3-CD, 2000 WL 1664895, at *1 n.3 (Tenn. Crim. App., at Jackson,
Nov. 3, 2000); see also State v. Roger Dale Vance, No. 03C01-9808-CC-00317, 1999 WL
692865, at *2 (Tenn. Crim. App., at Knoxville, Aug. 31, 1999); State v. Troy McLemore, No.
03C01-9709-CC-00406, 1998 WL 422339, at *2 (Tenn. Crim. App., at Knoxville, July 28,
1998). The court in Walter Jackson addressed a similar situation in which the trial court
revoked a community corrections sentence and imposed the original term of confinement.
Walter Jackson, 2001 WL 55687, at *1. This court determined that the trial court was not
required to address the principles of sentencing in its findings. Id. at *2. The court stated:
“[W]hile the consideration of sentencing principles is mandatory in determining a
defendant’s original sentence, ‘reference to these principles is not necessary in determining
the appropriate sanction following revocation of probation.’” Id. (quoting State v. Howard
Luroy Williamson, Jr., No. 02C01-9507-CC-00201, 1996 WL 551793, at *2 (Tenn. Crim.
App., at Jackson, Sept. 30, 1996)); see also State v. Stevie Q. Taylor, No.
02C01-9504-CC-00108, 1996 WL 218332, at *2 (Tenn. Crim. App., at Jackson, May 1,
1996). We likewise conclude that the trial court was under no obligation to reference the
considerations under Tennessee Code Annotated section 40-35-103(1).
Upon revoking the community corrections sentence, the trial court was permitted by
statute to impose the original term of confinement. See T.C.A. §§ 40-36-106(e)(4), -35-310
(2009). Therefore, the trial court did not abuse its discretion. Hickman is not entitled to
relief.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
______________________________
CAMILLE R. McMULLEN, JUDGE
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