State v. Benson ( 2010 )


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  •              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE               FILED
    MAY 1997 SESSION
    October 8, 1997
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    STATE OF TENNESSEE,             )
    )      No. 03-C-01-9608-CR-00298
    APPELLEE,                 )
    )      Knox County
    v.                              )
    )      Richard R. Baumgartner, Judge
    DEBRA SUE BENSON,               )
    )      (Revocation of Probation)
    APPELLANT.                )
    FOR THE APPELLANT:                     FOR THE APPELLEE:
    Paula R. Voss                          John Knox Walkup
    Assistant Public Defender              Attorney General & Reporter
    1209 Euclid Avenue                     500 Charlotte Avenue
    Knoxville, TN 37921                    Nashville, TN 37243-0497
    (Appeal Only)
    Michael J. Fahey, II
    John Halstead                          Assistant Attorney General
    Assistant Public Defender              450 James Robertson Parkway
    1209 Euclid Avenue                     Nashville, TN 37243-0493
    Knoxville, TN 37921
    (Trial Only)                           Randall E. Nichols
    District Attorney General
    OF COUNSEL:                            P. O. Box 1468
    Mark E. Stephens                       Knoxville, TN 37901-1468
    District Public Defender
    1209 Euclid Avenue                     Marsha L. K. Selecman
    Knoxville, TN 37921                    Assistant District Attorney General
    P. O. Box 1468
    Knoxville, TN 37901-1468
    OPINION FILED: _______________________________
    AFFIRMED
    Joe B. Jones, Presiding Judge
    OPINION
    The appellant, Debra Sue Benson (defendant), appeals as of right from a judgment
    of the trial court revoking her probation. The defendant did not contest the grounds
    established by the State of Tennessee to support the revocation of her probation. In this
    Court, the defendant contends she was suffering from a mental illness when the violations
    of her probation occurred, and, as a result, she was not capable of complying with the
    conditions of probation previously imposed by the trial court. After a thorough review of the
    record, the briefs submitted by the parties, and the law governing the issue presented for
    review, it is the opinion of this Court the judgment of the trial court should be affirmed.
    The State of Tennessee established at the revocation hearing that the defendant
    violated the conditions of her probation in several ways. The violations included (a) moving
    without leaving a forwarding address or notifying the probation officer who supervised her
    probation; (b) failing to report to her probation officer after December 31, 1990; (c) making
    it impossible for the supervising probation officer to visit the defendant’s residence or place
    of employment; (d) failing to pay probation fees; (e) being unavailable for random drug
    screens; (f) failing to maintain full-time employment; (g) being arrested and convicted of
    two criminal offenses in Knox County; and (h) being arrested in North Carolina for two
    attempts to commit larceny.
    The probation officer expressed his view regarding continued supervision of the
    defendant if her probation was reinstated. He stated: “I think Miss Benson would be a very
    high risk if returned to probation.”
    The defendant did not testify at the revocation hearing. She did not present any
    witnesses. The defendant introduced into evidence medical records from the University
    of Tennessee Memorial Hospital and Peninsula Hospital. The first notation regarding a
    mental illness is contained in the University of Tennessee hospital records. On March 2,
    1992, there is a notation that the defendant has a psychosis. She had already been
    prescribed medication for her condition approximately three weeks prior to this visit. There
    is nothing contained in the records to indicate the defendant was hospitalized at that time.
    The records indicate the defendant had an appointment at a facility, but it is not clear what
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    type of facility she was to contact because only initials are used in the records. There is
    nothing contained in the records to establish she could not comply with the conditions of
    her probation.
    There is nothing contained in the record regarding the defendant’s condition
    between March 2, 1992 and November 21, 1995 when the defendant entered Peninsula
    Hospital. She was released on November 30, 1995. The reason given for the defendant’s
    release from the hospital was: “[Patient] discharged at approximately 1600 [hours] per
    court decision. . . .” It appears the “court” -- the name of the court is not mentioned --
    determined the defendant should not be committed for treatment on November 28, 1995.
    The Peninsula records establish the defendant failed to take the medication prescribed for
    her condition regularly, and this was described as a “problem.”
    Whether the probation of an accused should be revoked is a question which rests
    within the sound discretion of the trial court. State v. Conner, 
    919 S.W.2d 48
    , 49 (Tenn.
    Crim. App. 1995); State v. Leach, 
    914 S.W.2d 104
    , 106 (Tenn. Crim. App. 1995); State
    v. Mitchell, 
    810 S.W.2d 733
    , 735 (Tenn. Crim. App. 1991). Thus, the standard of appellate
    review in these cases is whether the trial court abused its discretion by revoking the
    accused’s probation. State v. Harkins, 
    811 S.W.2d 79
    , 82 (Tenn. 1991); Conner, 919
    S.W.2d at 49-50; Leach, 914 S.W.2d at 106; State v. Smith, 
    909 S.W.2d 471
    , 473 (Tenn.
    Crim. App. 1995). Before an appellate court may reverse the judgment of the trial court
    in these cases, the appellate court must find the record is void of substantial evidence to
    support the trial court’s findings of fact that the accused violated the conditions imposed
    when placed on probation. Conner, 919 S.W.2d at 50.
    There is absolutely no evidence contained in the record which would permit the trial
    court or this Court to conclude the defendant was suffering from a mental condition when
    she committed most of the violations. The first recorded incident was on March 2, 1992,
    when the defendant was examined and released from the University of Tennessee
    Hospital. The violations occurred following December 31, 1990, the date she quit reporting
    to her supervising probation officer. This was over two years prior to the March 2, 1992,
    date.
    The defendant was released from Peninsula on November 30, 1995. This decision
    3
    was made after a court found the defendant should not be kept at Peninsula for evaluation
    and/or treatment. Again, there is absolutely no evidence contained in the record which
    would permit the trial court or this Court to conclude that the defendant was unable to
    comply with the terms of her probation due to a mental illness.
    This Court is of the opinion the trial court did not abuse its discretion in revoking the
    defendant’s probation. There were ample violations of the conditions of her probation.
    Most of the grounds occurred before there was any indication the defendant was suffering
    from a form of mental illness.
    ____________________________________________
    JOE B. JONES, PRESIDING JUDGE
    CONCUR:
    ______________________________________
    JOSEPH M. TIPTON, JUDGE
    ______________________________________
    CURWOOD WITT, JUDGE
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