State of Tennessee v. Felicia Mae Langford ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 28, 2010
STATE OF TENNESSEE v. FELICIA MAE LANGFORD
Direct Appeal from the Circuit Court for Macon County
No. 07-61 David Durham, Judge
No. M2010-00340-CCA-R3-CD - Filed January 12, 2011
The Defendant-Appellant, Felicia Mae Langford, appeals the revocation of her probation.
She pled guilty in the Circuit Court of Macon County to aggravated burglary, a Class C
felony. Langford received a probationary sentence of six years. The trial court revoked her
probation following an arrest for shoplifting. On appeal, Langford admits that she violated
her probation. She claims, however, that the trial court erred by revoking her probation and
imposing her original sentence of confinement. 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
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.
Comer L. Donnell, District Public Defender; Joe McClerran, Assistant Public Defender,
Lebanon, Tennessee for the Defendant-Appellant, Felicia Mae Langford.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Justin Harris, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Background. The record on appeal is limited. It contains the judgment form for the
aggravated burglary conviction, an affidavit addressing the probation violation, the arrest
warrant, and the revocation order. The record does not include a transcript of the revocation
hearing.1
1
The record does show that Langford submitted a “Notice of Filing Transcript.” The notice informs
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Langford’s conviction for aggravated burglary was entered on June 8, 2009. She was
placed on probation for a term of six years. On August 17, 2009, Langford’s probation
officer signed an affidavit which alleged that Langford violated her probation. Specifically,
the probation officer alleged that Langford failed to “obey all local, state, and federal laws
and ordinances.” Langford was purportedly arrested for shoplifting on August 3, 2009.2
Based on this alleged violation, the trial court issued a warrant for Langford’s arrest. The
warrant was executed on August 24, 2009.
On October 28, 2010, the trial court entered a revocation order. It fully revoked
Langford’s probation and imposed the original sentence of confinement. The order does not
specify the basis for the revocation. Langford filed a timely notice of appeal.
ANALYSIS
Langford concedes that she violated her probation. She claims, however, that the trial
court abused its discretion by revoking her probation and ordering confinement. Langford
contends that confinement was improper because the probation officer and the assistant
district attorney arranged for Langford to enter a drug treatment program. Langford also
asserts that the trial court should have inquired about her substance abuse issues. In
response, the State argues that the trial court acted within its discretion by revoking
Langford’s probation and ordering confinement. The State claims we should presume the
trial court’s findings are correct because Langford failed to prepare an adequate record for
review. Specifically, it refers to the absence of the transcript of the revocation hearing. The
State asserts that the record provides no support for Langford’s claim about the arrangement
with the drug treatment program. Upon review, we agree with the State.
Our law states that 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 defendant has
violated a condition of probation. T.C.A. §§ 40-35-310, -311(e) (2009). Probation
revocation rests within the sound discretion of the trial court. State v. Kendrick, 178 S.W.3d
734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.
Crim. App. 1991)). A trial court’s decision to revoke probation will be upheld absent an
abuse of discretion. State v. Beard, 189 S.W.3d 730, 735 (Tenn. Crim. App. 2005). In order
to establish an abuse of discretion, the defendant must show that there is no substantial
1
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the State that Langford filed a transcript of the proceedings on May 28, 2010. The transcript was not,
however, included in the record. We note that the State discussed the absence of the transcript in its
appellate brief. Langford did not file a reply brief addressing the absence.
2
Langford claims in her appellate brief that she pled guilty to shoplifting on October 28, 2009.
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evidence in the record to support the trial court’s determination that he violated his probation.
Id. (citations omitted).
Once a trial judge has determined a violation of probation has occurred, the trial judge
retains discretionary authority to order the defendant to: (1) serve his sentence in
incarceration; (2) serve the probationary term, beginning anew; or (3) serve a probationary
period that is extended for up to an additional two years. State v. Hunter, 1 S.W.3d 643, 647
(Tenn. 1999). Additionally, under Tennessee Code Annotated section 40-35-310(b), the trial
court
may also resentence the defendant for the remainder of the unexpired term to
any community-based alternative to incarceration authorized by chapter 36 of
this title; provided, that the violation of the defendant’s suspension of sentence
is a technical one and does not involve the commission of a new offense.
The determination of the proper consequence of the probation violation embodies a separate
exercise of discretion. Id. at 647; State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App.
2007).
Our review is hampered by the absence of the transcript from the revocation hearing.
Langford was responsible for providing a record that conveys a fair, accurate and complete
account of what transpired with regard to the probation revocation. See T.R.A.P. 24(b); State
v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). The Tennessee Supreme Court has stated,
“Where the record is incomplete and does not contain a transcript of the proceedings relevant
to an issue presented for review, or portions of the record upon which the party relies, an
appellate court is precluded from considering the issue.” State v. Ballard, 855 S.W.2d 557,
560-61 (Tenn. 1993) (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App.
1988)). We are to presume the trial court’s findings are correct if a relevant transcript is not
included in the record. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993);
State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Certainly, the revocation
hearing was relevant to the trial court’s decision to revoke Langford’s probation and impose
the original sentence. The hearing was particularly relevant to Langford’s claim that the
probation officer and the assistant district attorney arranged for Langford to enter a drug
treatment program. Without the transcript of the revocation hearing, we are precluded from
reviewing this issue and we must presume that the trial court’s decision was correct.
Langford is not entitled to relief.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
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CAMILLE R. McMULLEN, JUDGE
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