State of Tennessee v. Michael Brent Cook ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBE R SESSION, 1998 December 9, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710-CR-00495
)
Appellee, )
) SUMNER COUNTY
V. )
)
) HON. JANE WHEATCRAFT, JUDGE
MICHAEL BRENT COOK, )
)
Appe llant. ) (BURGLARY AND VANDALISM)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID A. DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
ZOE LAAKSO CLINT ON J. M ORG AN
Assistant Public Defender Assistant Attorney General
117 East Main Street 2nd Floor, Cordell Hull Building
Gallatin, TN 37066 425 Fifth Avenue North
Nashville, TN 37243
LAWRENCE RAY WHITLEY
District Attorney General
SALLIE WADE BROWN
Assistant District Attorney General
18th Judicial District
113 West Main Street
Gallatin, TN 37066
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Michael Brent Cook, appeals as of right from the revocation
of his probation by the Sumner County Criminal Court. He contends that the trial
court abuse d its discretion in revoking his proba tion. We affirm the judgment of the
trial court.
On June 6, 1996, Defendant pled guilty to burglary, felony vandalism, and
contrib uting to the delinquency of a minor. Defendant received an effective sentence
of two (2) years which was suspended and Defendant was placed on supervised
probation. He was ordered to pay $170 4.42 in restitution and to perform 200 hours
of comm unity service work at G allatin Midd le Scho ol. On Fe bruary 18 , 1997, a
probation violation warrant was issued alleging that Defendant had failed to report
to the probation office, had made no restitution payments , had not performed any
service work a t the sc hool, and had made no probation fee payments. An amended
affidavit and warrant were filed alleging Defendant had been convicted of burg lary
in Rutherford and Wilson counties. These felony offenses occurred while Defendant
was on probation.
At the revocation hearing, Probation Officer Marvin Powell testified that
Defendant unde rstood his probationary obligations and that he had failed to follow
them. He said that Defendant’s records indicated that Defendant made no restitution
or probation fee p ayments. H e testified that Defend ant’s public service w ork
coordinator, Larry Johnson, reported that Defendant had not performed any work at
the school. Furthermore, Powell testified that Defendant had been convicted of
burglary in two different counties, just six months after being placed on probation.
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Pow ell admitted that Defendant had report ed to h im on a mo nthly ba sis up u ntil
November 22, 1996, an d that Defend ant’s incarcera tion for the burglaries on
December 2, 1996, would explain Defendant’s non-compliance after that date.
Defendant testified at the hearing that he had failed to report to his probation
officer after November 22, 1996, because he had been incarcerated for the burglary
convictions. Defendant said that he was paying on his restitution and th at the c lerk’s
office should h ave a rec ord of it. He a lso testified th at he wo rked at the Ga llatin
Middle Scho ol four to six weekends for five or six hours each time. He said the
school principal was supposed to report his work to the probation office. He
admitted getting intoxicated, which would also be a violation of his probation, and
committing the burglaries. He testified that since being in jail for the burglary
convictions he has been working on getting his GED and that he has a new outlook
on life.
A trial cou rt may revoke proba tion an d orde r the im positio n of the original
sentence upon a finding by a preponderance of the evidence that the person has
violated a cond ition of probation. Tenn. Code Ann. §§ 40-35-310 and -311. The
decision to revoke proba tion res ts within the soun d discretio n of the trial co urt. State
v. Mitche ll, 810 S.W.2d 733, 735 (Ten n. Crim. App . 1991). Probation revocations
are subject to an ab use of discretion, ra ther than a de novo standard of review.
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 tha t a
violation of proba tion has o ccurred . Id. The evidence at the revocation hearing
need only show that the trial court exercised a conscientious and intelligent judgment
in makin g its decisio n. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App.
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1995). Once it is determined that a defenda nt has violated his pro bation, the court
has the discretion to order the defen dant to begin serving his sen tence as orig inally
entered. Tenn . Cod e Ann . §§ 40 -35-3 10 an d -311 (d); Se ntenc ing Co mm ission
Com ments to Tenn. Code Ann. § 4 0-35-31 0; State v. Duke, 902 S.W.2d 424, 427
(Tenn . Crim. A pp. 199 5).
Defendant admitted at the hearing that he violated the terms of his probation
by getting intoxicated and committing two felonies. This constitutes substantial
evidence to support the trial court ’s revoc ation order. See, e.g., State v. Yvonne
Burne tt, C.C.A. No. 03C01-9608-CR-00314, Knox County (Tenn. Crim. App.
Knoxville, July 25, 19 97) (R ule 11 application denied, Apr. 13, 1998). Furthermore,
Defe ndan t’s probation officer testified that D efendant ha d made no restitution or
probation fee paym ents and th at his public service wo rk coordinator ha d no record
of any co mm unity se rvice performed by Defendant. Defendant testified that
“[s]omebody messed up somewhere” in regards to there being no rec ord as to his
comm unity service work. However, in its findings of fact, the trial court accredited
the testim ony of th e State ’s witness a s to the disputed facts in this case and revoked
Defe ndan t’s probation. The lower court was then statutorily authorized to impose
Defe ndan t’s original two (2) year sentence upon re vocation of proba tion. See Tenn.
Code Ann. §§ 40-35-310 and -311. We cannot say th at the trial cou rt abuse d its
discretion in ordering Defendant to serve the terms of his original sentence.
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Accordingly, the judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
GARY R. WA DE, Presiding Judge
___________________________________
JAMES CURW OOD W ITT, JR., Judge
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