State of Tennessee v. Jeffery Lance Cochran ( 2011 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs March 29, 2011
    STATE OF TENNESSEE v. JEFFERY LANCE COCHRAN
    Appeal from the Criminal Court for Sullivan County
    No. S53696 & S54144 Robert H. Montgomery, Jr., Judge
    No. E2010-01526-CCA-R3-CD - Filed May 10, 2011
    Appellant, Jeffrey Lance Cochran, pled guilty to violations of the Motor Vehicle Habitual
    Offender Act, implied consent law, and driving under the influence, fourth offense. The
    sentences were ordered to run concurrently to each other; Appellant was sentenced to an
    effective sentence of one year and six months. He was ordered to serve a mandatory
    minimum sentence of 150 days and the remainder of the sentence on probation. On the same
    day, Appellant also pled guilty to failure to appear. He was sentenced to one year and six
    months for this conviction, to be served consecutively to the effective sentence for the other
    convictions. Subsequently, Appellant was charged with violating the terms of his probation.
    Following a hearing, Appellant’s probation was revoked. The trial court ordered Appellant
    to serve the remainder of his sentence in confinement. Appellant appeals this decision.
    Because we determine that the trial court properly revoked Appellant’s probation, we affirm
    the judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
    J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
    and J.C. M CL IN, JJ., joined.
    Steve McEwen, (on appeal), Mountain City, Tennessee and William A. Kennedy, (at trial),
    Blountville,Tennessee, for the appellant, Jeffery Lance Cochran.
    Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
    Attorney General; H. Greeley Wells, Jr., District Attorney General, and Brandon Haren,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    Factual Background
    In August of 2007, the Sullivan County Grand Jury issued a presentment charging
    Appellant with a violation of a habitual traffic offender order, driving under the influence,
    a violation of the implied consent law, and driving under the influence, fourth offense. In
    September of 2007, the Sullivan County Grand Jury issued a presentment charging Appellant
    with felony failure to appear.
    In December of 2007, Appellant pled guilty to failure to appear, violation of a habitual
    traffic offender order, driving under the influence, violation of the implied consent law, and
    driving under the influence, fourth offense. Appellant was sentenced to one year and six
    months for the conviction for failure to appear. It was ordered to be served consecutively to
    the sentences for the other convictions. Appellant was ordered to serve the sentence for
    failure to appear on supervised probation. Appellant was sentenced to one year and six
    months for the conviction for violation of the habitual traffic offender order, eleven months
    and twenty-nine days for the violation of the implied consent law conviction, and one year
    and six months for the driving under the influence, fourth offense conviction. The driving
    under the influence, fourth offense conviction required Appellant to serve 150 days in
    confinement. The trial court also ordered Appellant to: (1) undergo drug/alcohol assessment;
    (2) receive treatment “as appropriate;” (3) abstain from the use or possession of
    alcohol/illegal drugs; (4) inform his probation officer of any medication he was taking; (5)
    submit to random drug screens; (6) perform 200 hours of community service; (7) pay all fines
    and costs; and (8) earn a GED. In addition, Appellant was subject to certain other conditions
    of probation.
    In August of 2008, two arrest warrants were issued against Appellant for violations
    of probation. The first warrant specified that Appellant violated the condition of probation
    which specified that Appellant would not “use or have in [his] possession narcotic drugs or
    marijuana” and the condition which prohibited Appellant from using alcohol or illegal drugs
    and misusing legal drugs. The warrant stated that Appellant had signed a written admission
    of drug use in which he admitted to using marijuana, cocaine, lortab, xanax, and alcohol.
    The second warrant specified that Appellant had violated the condition specifying that
    he, “will not use or have in my possession illegal drugs or marijuana” and that he not use or
    possess any alcohol or drugs. By way of explanation, the warrant specified that Appellant
    had signed a written admission of the use of marijuana, cocaine, lortab, xanax, and alcohol.
    The trial court revoked Appellant’s probation. The revocation order specified that
    Appellant was ordered to serve the sentence of eighteen months for the failure to appear
    conviction in the Department of Correction, on determinate release that expired May 25,
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    2010. The trial court ordered the effective one-year, six-month sentence for the other
    convictions to be served on supervised probation.
    In May of 2010, another warrant was issued against Appellant for a violation of
    probation as the result of Appellant’s arrest for domestic assault.
    The trial court held a hearing on the violation of probation warrants. At the hearing,
    Appellant’s probation officer, Paula Bothoff, testified that she met with Appellant and
    discussed the probation requirements. At that meeting, Appellant signed a copy of the rules
    of his probation.
    Deputy Allen Hammonds of the Scott County, Virginia Sheriff’s Department also
    testified at the hearing. Deputy Hammonds recalled arresting Appellant earlier in 2010 as
    the result of a report of a domestic disturbance at Appellant’s residence. When Deputy
    Hammonds arrived, Appellant was inside the house. Appellant’s girlfriend reported that
    Appellant grabbed her shirt and “slung her around.” She had a “place” on her left hand. At
    the time he was arrested for domestic assault, Appellant smelled of alcohol. Appellant
    subjected himself to an intoximeter. The tests revealed that Appellant’s blood alcohol
    content was .16.
    Appellant testified at the hearing and admitted that he had been drinking that night in
    order to cope with the loss of his mother, property issues, and financial issues. Appellant
    claimed to be under stress because his daughter and granddaughter had moved in with him
    and there was an ongoing family battle over some real property. Appellant stated that he had
    “a few drinks” because his “nerves had been tattered with everything.” He admitted that he
    was “intoxicated.” Appellant testified that he did not have a telephone to contact his
    probation officer to notify him of the arrest but that he planned on informing the probation
    officer at his monthly visit.
    Appellant’s girlfriend, Trivia Ann Ketron, testified that Appellant grabbed her by the
    throat on the night he was arrested. As a result, she kicked him in the mouth.
    After hearing all of the testimony, the trial court determined Appellant had violated
    the terms and conditions of his probation by consuming alcohol; becoming intoxicated;
    engaging in abusive, assaultive, or threatening behavior; and failing to report his arrest. As
    a result, the trial court ordered Appellant to serve the remainder of his sentences in the
    Department of Correction.
    Appellant filed a timely notice of appeal. On appeal, he argues that the trial court
    improperly revoked probation.
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    Analysis
    A trial court may revoke probation and order the imposition of the original sentence
    upon a finding by a preponderance of the evidence that the person has violated a condition
    of probation. T.C.A. §§ 40-35-310, -311; State v. Shaffer, 
    45 S.W.3d 553
    , 554 (Tenn. 2001).
    After finding a violation of probation and determining that probation should be revoked, a
    trial judge can: (1) order the defendant to serve the sentence in incarceration; (2) cause
    execution of the judgment as it was originally entered, or, in other words, begin the
    probationary sentence anew; or (3) extend the probationary period for up to two years. See
    T.C.A. §§ 40-35-308(c) & -311(e); State v. Hunter, 
    1 S.W.3d 643
    , 647-48 (Tenn. 1999). The
    decision to revoke probation rests within the sound discretion of the trial court. State v.
    Mitchell, 
    810 S.W.2d 733
    , 735 (Tenn. Crim. App. 1991). Revocation of probation or a
    community corrections sentence is subject to an abuse of discretion standard of review, rather
    than a de novo standard. State v. Harkins, 
    811 S.W.2d 79
    , 82 (Tenn. 1991). An abuse of
    discretion is shown if the record is devoid of substantial evidence to support the conclusion
    that a violation of probation has occurred. Id. The evidence at the revocation hearing need
    only show that the trial court exercised a conscientious and intelligent judgment in making
    its decision. State v. Leach, 
    914 S.W.2d 104
    , 106 (Tenn. Crim. App. 1995). Further, “[i]t
    is well established that trial courts have broad discretion in determining the admissibility of
    evidence, and their rulings will not be reversed absent an abuse of that discretion.” State v.
    McLeod, 
    937 S.W.2d 867
    , 871 (Tenn. 1996). Moreover, a defendant who is already on
    probation is not entitled to an additional grant of probation or some other form of alternative
    sentencing. State v. James Cravens, No. M2002-01216-CCA-R3-CD, 
    2003 WL 22282174
    ,
    at *2 (Tenn. Crim. App., at Nashville, Oct. 2, 2003), perm. app. denied, (Tenn. Mar. 8,
    2004).
    In the case herein, the trial court based the revocation on Appellant’s arrest for assault,
    use of alcohol, and use of drugs, concluding that Appellant’s actions supported a violation
    of several rules and conditions contained in the probation order. The trial court heard the
    testimony of the arresting officer, Appellant, and Appellant’s girlfriend about the incident
    that led to Appellant’s arrest. This Court has held that the testimony of a police officer
    concerning the facts of an arrest may be sufficient to support the revocation of probation.
    State v Eric L. Abell, No. M2006-01981-CCA-R3-CD, 
    2007 WL 2088949
    , at *5 (Tenn.
    Crim. App., at Nashville, Jul. 23, 2007) (citing State v. Chris Allen Dodson, M2005-01776-
    CCA-R3-CD, 
    2006 WL 1097497
    , at *3 (Tenn. Crim. App., at Nashville, Mar. 31, 2006)).
    Appellant herein has failed to show that the trial court abused its discretion in revoking his
    probation and ordering him to serve his original sentence in confinement. Appellant
    admitted to drinking on the night he was arrested. The intoximeter results confirmed his
    admission. Appellant also admitted that he did not immediately report his arrest to his
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    probation officer. The trial court did not abuse its discretion. Appellant is not entitled to
    relief.
    Conclusion
    For the foregoing reasons, the judgment of the trial court is affirmed.
    ___________________________________
    JERRY L. SMITH, JUDGE
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