State of Tennessee v. Leman Earl Russell Jr. ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
On Brief March 5, 2013
STATE OF TENNESSEE v. LEMAN EARL RUSSELL, JR.
Appeal from the Circuit Court for Dyer County
No. C05-442B Lee Moore, Judge
No. W2012-02161-CCA-R3-CD - Filed July 17, 2013
Appellant, Leman E. Russell, pled guilty to one count of possession of over .5 grams of
cocaine with intent to sell or deliver in Dyer County in January 2006. He received a sentence
of ten years with six months incarceration and nine and a half years on Community
Corrections. Because of various violations and adjudications, Appellant was placed on
probation on February 3, 2011. On September 27, 2011, a probation violation warrant was
filed alleging that Appellant violated the terms of his probation. After a hearing, the trial
court revoked Appellant’s probation and ordered him to serve his original ten-year sentence
in confinement. Appellant filed a timely notice of appeal. After a review of the record and
authorities, we determine that the trial court did not abuse its discretion in revoking
Appellant’s probation and imposing his original sentence because there was evidence to
support the conclusion of the trial court that a violation of the conditions of probation
occurred. Accordingly, the judgment of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
R OGER A. P AGE, J., joined.
H. Tod Taylor, Assistant District Public Defender, Dyersburg, Tennessee, for the appellant,
Leman Earl Russell, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; and Phillip Bivens, District Attorney General, and Karen Burns, Assistant District
Attorney General; for the appellee, State of Tennessee.
OPINION
Factual Background
On January 10, 2006, Appellant pled guilty to one count of possession of over .5
grams of cocaine with intent to sell or deliver. The trial court sentenced Appellant to an
effective sentence of ten years with six months to be served in jail and the remaining nine and
a half years to be served on Community Corrections. On December 9, 2006, Appellant was
transferred to Community Corrections. On May 22, 2007, his sentence under Community
Corrections was revoked, and he was ordered to serve six months in the Wayne County Boot
Camp. He was released on February 19, 2008, to serve his sentence on probation. On
September 13, 2010, Appellant violated his probation, and on November 23, 2010, he
received a six month partial revocation of his probation.
On February 3, 2011, he was released from jail and again placed on probation. He
was ordered to report on February 25, 2011. On September 27, 2011, Appellant’s probation
officer filed a Probation Violation Report stating the following violations:
Probation Rule #5 states, “I will [work] steadily at a lawful occupation.
If I become unemployed, I will immediately report this to my
Probation/Parole Officer and will begin to look for another job.”
The Offender appears to be in violation of Rule #5, in that; he failed to provide
employment verification or proof of seeking employment in March, June, and
July 2011.
Probation Rule #6 states, “I will get the permission of my
Probation/Parole Officer before changing my residence or employment,
or before leaving the County of my residence or the state.”
The Offender appears to be in violation of Rule #6, in that; he changed
residence without permission from BOPP sometime after his 7/5/11 report
date. He did not report the change of residence to BOPP until his 7/29/11
report date. The Offender has been traveling to East Tennessee and “a town
outside of Huntsville, AL” for extended periods of time without permission
from BOPP.
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Probation Rule #7 states, “I will allow my Probation/Parole Officer to
visit my home, employment site, or elsewhere, and will carry out all lawful
instructions he/she gives and report to my Probation/Parole Officer as
instructed, and will submit to electronic monitoring.”
The Offender appears to be in violation of Rule #7, in that; he fails to report
to BOPP as instructed for his scheduled report dates. The Offender was
released from the Dyer County jail on 1/25/11. He failed to report on 2/25/11,
March 2011, 4/20/11, 5/20/11, June 2011, 7/18/11, and 9/8/11.
Probation Rule #10 states, “I agree to pay all required fees to the
supervision fund, criminal injuries fund, court costs, restitution, and
fines.”
The Offender appears to be in violation of Rule #10, in that; he failed to pay
supervision fees in March, April, May, June, and September 2011. The
Offender failed to provide proof of court costs payment in February, March,
April, May, June, and August 2011.
Probation Rule #14 states, “I agree to comply with all special conditions
included in my judgment order.”
The Offender appears to be in violation of Rule #14, in that; he has failed to
successfully complete an outpatient A/D treatment program. The Offender
was court ordered at his 11/23/10 probation revocation to complete outpatient
A/D treatment at Here’s Hope with BOPP assistance. The Offender was
unsuccessfully discharged from Here’s Hope on 7/26/11 for failure to attend
the required classes. He has not obtained admittance into another facility.
On June 19, 2012, the trial court held a probation revocation hearing. Appellant’s
probation officer, Justin Tubbs, testified at the hearing. Mr. Tubbs testified that Appellant
came under his supervision when he was released from boot camp on January 25, 2011. For
the first three months, Appellant was required to report twice a month. Appellant failed to
report February 25, 2011; the entire month of March 2011; April 20, 2011; May 20, 2011;
the entire month of June 2011; July 18, 2011; and September 8, 2011. Mr. Tubbs testified
that Appellant did not provide proof that he was seeking employment. Furthermore,
Appellant failed to obtain permission to change his residence and to travel to Missouri and
Arkansas.
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Mr. James Spicer testified on Appellant’s behalf. He stated that he has employed
Appellant off and on for ten years for construction work. Appellant did not work for Mr.
Spicer on a full-time basis. Mr. Spicer stated that he had spoken with Appellant’s probation
officer and verified his employment. Mr. Spicer stated that Appellant did not do any work
out of state for him, but he acknowledged that if Appellant was working for someone else
he would not have known it.
Ms. Joyce Cox is Appellant’s mother and testified on his behalf. She stated that she
helped Appellant get to his meetings with his probation officer and helped him get a new
driver’s license. She helped drive him places and also helped him monetarily. She testified
that at the time of the probation revocation hearing, Appellant owed $490 in court fees and
an additional $500 in attorney fees.
Ms. Ashley Russell is Appellant’s wife. They have one child together, and he has
three children from previous relationships. The children from previous relationships live
with their mothers during the school year, but they also live with Appellant and his wife for
part of the year. She stated that he helps with expenses and that he is a good father.
Appellant also testified at the hearing. He admitted that he worked sporadically for
Mr. Spicer and some weeks he would work only one day for Mr. Spicer. Appellant
contended that he told his probation officer that he had changed residences. He also admitted
working out of state. He claimed that his probation officer said that it was not a problem as
long as he did not stay out of state overnight. Appellant stated that he met with his probation
officer fourteen times in 2011.
At the conclusion of the hearing, the trial court revoked Appellant’s probation and
reinstated his original effective sentence of ten years.
ANALYSIS
On appeal, Appellant argues that the trial court abused its discretion in ordering
Appellant’s probation to be revoked and reinstating his original sentence. The State
disagrees.
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. 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
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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 and 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). “A trial court abuses its discretion when it applies
incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly
erroneous assessment of the proof, or applies reasoning that causes an injustice to the
complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).
The trial court stated the following at the conclusion of the probation revocation
hearing:
Let me just tell you what I’m concerned about is he just reports
sporadically. Always has. I mean, that’s what I’m concerned about as far as
whether or not deciding whether to violate him. He just reports sporadically.
....
He’s already been violated twice before for that same reason.
....
The issue is following the rules.
....
[Defense counsel], I mean if all we were dealing with is 2011 I would
agree with every word you’re saying. I would agree with every word you’re
saying.
He is – I would probably give him a very short partial revocation, some
punishment because you can’t just fail to report regardless of what the
situation is. That’s the most important thing he’s got to do.
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Now, the alternative to going to prison, this is a ten year sentence on –
to prison he’s been given an alternative sentence now three separate times.
And he continues to report sporadically. He continues to – he just simply
won’t follow the rules.
And [Appellant], that’s been a problem we’ve had with you throughout
this thing since – for now since six years. I’m not going to put up with it any
longer. Your probation is violated.
Appellant argues that the trial court erred in revoking his probation because the trial
court based the revocation “on acts that were known at the time probation was granted.”
Appellant relies upon State v. Beard, 189 S.W.3d 730, 737 (Tenn. Crim. App. 2005).
However, Beard states, “it is not permissible for trial courts to base revocation on criminal
acts that were known at the time probation was granted.” Id. (emphasis added). The trial
court in Beard in part revoked the defendant’s probation based upon the defendant’s
understanding that his rape conviction for oral penetration is as much rape as penile
penetration. Id. at 734. Appellant’s prior violations which resulted in changes to his
community corrections and probation on the same sentence do not constitute “criminal acts
known at the time probation was granted.” He has not shown an abuse of discretion based
upon this issue.
Furthermore, we have reviewed the record on appeal and find ample evidence to
support the trial court’s conclusion that a violation of probation occurred. Evidence was
presented that Appellant failed to report, failed to complete the drug and alcohol abuse
program as required, and failed to report a change of residence. We find no abuse of
discretion in the revocation of Appellant’s probation.
When a trial court has determined that a defendant has violated the terms of his
probation, the trial court may choose to order the defendant to serve his sentence in
incarceration as originally ordered. See T.C.A. § § 40-35-308(c) & -311(e); Hunter, 1
S.W.3d at 647-48. In the case at hand, the trial court decided to do so. Based on the record
before us, we find no abuse of discretion in ordering Appellant to serve his sentence in
incarceration.
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CONCLUSION
For the foregoing reasons, the revocation of Appellant’s probation is affirmed.
___________________________________
JERRY L. SMITH, JUDGE
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