State v. Anthony Turner ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMB ER SESSION, 1997 January 9, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9612-CC-00504
)
Appellee, )
)
) COFFEE COUNTY
VS. )
) HON. GERALD L. EWELL, SR.
ANTHONY TURNER, ) JUDGE
)
Appe llant. ) (Revocation of Community Corrections)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF COFFEE COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
CAMPBELL SMOOT JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
RAC HEL E . WIL LIS GEORGIA BLYTHE FELNER
Assistant Public Defender Assistant Attorney General
605 East Carroll Street 425 5th Avenu e North
P.O. Box 260 Nashville, TN 37243
Tullahoma, TN 37388
C. MICHAEL LAYNE
District Attorney General
STEPHEN WEITZMAN
Assistant District Attorney General
Manchester, TN 37355
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant appeals as of right from the judg ment of the trial cou rt
which found him to be in violation of the terms of his community corrections
sentence and ordered that the balan ce of h is six-year sentence be served in the
Department of Correction. The Defendant argues that the trial ju dge a buse d his
discretion in ordering that the remainder of the Defendant’s sentence be served
in the Department of Correction. We disagree and affirm the judgment of the trial
court.
On March 20, 1996, the Defendant pleaded guilty to the Class C felony
offense of selling less than ½ gram of cocaine.1 He was sentenced as a Range
I standard offender to a term of six years to be serv ed in the c omm unity
correction s progra m.
On April 3, 1996, about two weeks after bein g placed in the com munity
corrections program , the Defe ndant w as arres ted two separa te times for
disord erly conduct. Th ese arrests res ulted in a warrant being issued charging
him with violating the terms of his community corrections sentence. After
conducting an evidentiary hearing, the trial judge revoked the Defendant’s
community correction s senten ce and ordered that the ba lance of th e sente nce
be served in the Department of Correction.2 It is from the order of the trial cou rt
1
Tenn. Code A nn. § 39-17-417(c)(2).
2
The Def end ant w as giv en cr edit fo r 142 days s pen t in jail a nd fo r 17 d ays s pen t in co mm unity
corrections.
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revoking the community corrections sentence and ordering the balance of the
sentence served in the Department of Correction that the Defendant appeals.
The trial court has the discretion to revoke a community corrections
sentence upon a finding that the defendan t has violated the conditions of the
agreem ent; the trial court m ay then o rder the d efenda nt to serve h is sent ence in
confinem ent. State v. Harkins, 811 S.W .2d 79, 82 (Tenn . 1991). How ever,
before a trial court m ay revoke a com munity c orrection s sente nce, the record
must contain sufficient evidence to permit the trial court to make an intelligent and
conscientious decision . Id. When revoking a community corrections sentence,
the trial court must place its findings of fact and the reasons for the revocation on
the record. See Gag non v. S carpe lli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36
L.Ed.2d 656 (19 73).
The Tennessee Supreme Court has held that an abuse of discretion
standard of appellate review sh ould be used to a ddress the revoc ation of a
comm unity correc tions sentence. Harkins, 811 S.W .2d at 82. In order for a
reviewing court to be warranted in finding an abuse of discretion in a revocation
proceeding, it must be established that the record contains no substantial
evidenc e to support the conclusion of the trial judge that the defendant violated
the terms of the community corrections program. Id. The proof of a violation of
comm unity corrections need n ot be esta blished b eyond a reason able do ubt, but
it is sufficient if it allows the trial judge to make a conscientious and intelligent
decision . Id.; State v. Milton, 673 S.W .2d 555, 557 (Tenn. Crim . App. 1984 ).
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If the evidence at the revocation proceeding is insufficient to establish that
a violation occurred, the trial court should dismiss the proceed ing. Converse ly,
if the evide nce is su fficient, the trial ju dge m ay, with in his discretionary auth ority,
revoke the sentence and req uire the a ccus ed to s erve th e sen tence in
confinem ent. See Tenn . Code Ann. § 4 0-36-10 6(e)(3).
The testimony presented at the revocation hearing centered around the
Defe ndan t’s activity between approximately 1:00 a.m. and 6:00 a .m. on April 3,
1996. Testimony established that about 1:00 a.m. on that date the Defendant
went to the apa rtment o f his girlfriend, with whom he had been staying. The
Defendant had been drinking and an argument or altercation started. The police
were then called for the first time that evening, but apparently the Defendant was
not there when the police arrived. After the police departed, the Defendant came
back to the apartment and the police were ag ain sum mone d. When they arrived
this time, the Defendant was not there, but he came in while the police were
there. The Defendant’s girlfriend asked him to leave her apartment and the
police also asked h im to leave the ap artment. Th e Defend ant refused to lea ve
and “became disorderly” and was arrested. The Defendant was ta ken to jail, but
appa rently made bond and returned to the sam e apartm ent som etime p rior to
6:00 a.m. on the sam e day. H e gain ed en trance to the a partm ent, an d his
girlfriend, who testified that she was afraid of him that morning, jumped out of the
window of her secon d floor apartme nt to try to get away from the De fendan t.
When she jumped, she broke her leg. The police were again called to the
apartment. An ambulance arrived to transport the Defendant’s girlfriend for
treatment of her bro ken leg. The Defendant again approached his girlfriend and
the police officer who was the re with he r. He wa s asked to leave. He refused,
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got loud, and u sed profanity. Several peop le had gathe red an d the o fficer sa id
he was afraid the Defendant was going to interfere with the ambulance
attendants, so the officer arrested him on a charge of disorderly conduct. The
Defe ndan t’s girlfriend testified that the only time s he rea lly had problems with the
Defen dant wa s when he had been d rinking.
After hearing this testimony, the trial judge took the matter under
advisement but stated, “this ma y have been a minor situation, but he persisted
in it, went into the apartment, caused this young lady -- this woman to jump out
of the apartment, break her leg . . . . I will look a t the rec ord, bu t he ha d this
[alcoh ol] problem when he went on commu nity corrections and I am not
convinced that ordering anything other than a full revocation will help him.” The
judge subseque ntly entere d a orde r revoking the Defe ndant’s c omm unity
corrections sentence.
W e believe that this record contains substantial evide nce to su pport a
finding that the D efenda nt violated the terms of his community corrections
sentence. We also believe the record contains sufficient evidence which
permitted the trial court to make an intelligent and conscientious decision. Based
on the evidence, we believe that it was within the discretionary authority of the
trial judge to revoke the Defendant’s sentence and require the Defenda nt to serve
the sentence in the Department of Correction. We cannot conclude that the trial
judge abused his discretion.
The judgment of the trial court is accordingly affirmed.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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