State v. Michael Cole ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1997
FILED
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610-CC-00361
) October 9, 1997
Appellee, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
) MADISON COUNTY
VS. )
) HON. WHIT LAFON
MICHAEL ANTHONY COLE, ) JUDGE
)
Appe llant. ) (Revocation of Community Corrections)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF MADISON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS JOHN KNOX WALKUP
202 S. Maple Street, Suite C Attorney General and Reporter
Covington, TN 38019
JANIS L. TURNER
GEORGE MORTON GOOGE Assistant Attorney General
District Public Defender 425 5th Avenu e North
227 West Baltimore Street Nashville, TN 37243
Jackson, TN 30301
JERRY W OODALL
District Attorney General
JAMES W. THOMPSON
Assistant District Attorney General
Lowell Thomas State Office Building
Jackson, TN 38301
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Michael Anthony Cole, appeals as of right th e trial co urt’s
revocation of his sentence to community corrections. The Defendant pleaded
guilty to one count of felony theft o f property o ver $10,0 00, a Class C felony, for
stealing a Chevrolet pickup truck.1 He was sente nced to six (6) years, w ith sixty
(60) days to be served in the workhouse and the balance of five (5) years and ten
(10) mon ths to b e serve d in community corrections. He was fined one hundred
dollars ($100 ), orde red to p ay one hund red eig hty dolla rs ($18 0) in restitution and
provide 250 hours of community service. He was also ordered to stay away from
the victim’s busin ess. In his one issue in this appeal, he contends that the trial
judge abus ed his discre tion in revoking his sentence to community corrections.
We affirm the ju dgme nt of the trial co urt.
The trial court has the discretion to revoke a community corrections
sentence upon a finding that the defendant has violated the conditions of the
agreem ent; the trial court may then order the defen dant to serve h is sent ence in
confinem ent. State v. Harkins, 811 S.W .2d 79, 82 (T enn. 1991 ). However,
before a trial court may revo ke a com munity correc tions sentence , 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 m ust 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.C t. 1756, 1762, 36
L.Ed.2d 656 (19 73).
1
Tenn. Code A nn. §§ 39-14-103, -105(4).
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The Tennessee Supreme Court has held that an abuse of discretion
standard of appellate review s hould b e used to addre ss the rev ocation o f a
comm unity correction s senten ce. Harkins, 811 S.W .2d at 82. In order for a
reviewing court to be warranted in finding an abus e of dis cretion in a com munity
corrections revocatio n case , it must be established that the record contains no
substantial evidence to support the conclusion of the trial judge that the
defendant violated the terms of the community corrections p rogram . Id. The
proof of a violation of community corrections need not be established beyond a
reaso nable doubt, but by a preponderance of the evidence, and it is sufficient if
it allows the trial judge to make a conscientious and intelligent de cision. Id.; State
v. Milton, 673 S.W .2d 555, 557 (Tenn. Crim . App. 1984 ).
If the evidence at the revocation proceeding is insufficient to establish that
a violation occurred, the trial court should dism iss the procee ding. Conve rsely,
if the evid ence is sufficie nt, the tria l court m ay, with in its discretionary autho rity,
revoke the sentence and re quire th e acc used to serve the se ntenc e in
confinem ent. See Tenn . Code Ann. § 4 0-36-10 6(e)(3).
The Defendant’s primary argument is that the State failed to produce any
substantial evidenc e to supp ort the trial cou rt’s revocatio n of com munity
corrections. The re cord reflec ts that the State submitted a behavioral violation
report and the testim ony of M ickey Kin g, the De fendan t’s Case Officer with
Madison Coun ty Com mun ity Corre ctions. In the report, King indicated that the
Defendant violated several rules governing his sentence:
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2. Make a full and truthful report to program staff in person
and/or in writing as directed.
5. Report all arrest [sic], including traffic citations, regardless of
disposition.
7. Obey the laws of the United States or any State in which
he/she may be as will [sic] as any municipal ordinances.
8. Abide by curfew times as set by program staff and shall not
keep late or unusual hours unless employment related.
10. Be liable for all Court C ost payments and Supervision Fee
payable m onthly.
King produced police arrest report s and testified that the Defe ndan t did not
report to him regard ing any of the arres ts. Those arre sts docum ented were two
for violation of the bad check law on January 9, 1996 and March 19, 1996. The
Defendant was also arres ted for van dalism o n Marc h 15, 19 96. The report and
testimony clearly supports a violation of Rule 5. Also, the police report indicates
that the vandalism incident occurred after 10:00 p.m. and King testified that the
Defendant had a cu rfew of 6:0 0 p.m. This supports the finding that the
Defendant violated Rule 8.
The Defendant also claims that the finding of nonpayment of court costs
was based on vague information and that no due date existed for payments.
Howeve r, the violation report indic ates pa ymen ts were to be “payable month ly.”
The Defen dant wa s senten ced on Decem ber 13, 1 995, and the revocation
hearing was conducted on May 14, 1996. No payment had been made in
monthly installments as required. Finally, the Defendant argues that no proof
was offered regarding Rules 2 and 7. However, the trial court’s revocation order
dated May 16, 1996, reflects that the revocation was based on his arrests and the
failure to pay court costs. Thus, the lack of sufficient proof regarding these
violations is of no consequence in considering the trial court’s decision.
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The Defendant offered explanations that he was incarcerated for a number
of months, but produced no proof of such. He also testified that he was at home
at the time the alleged curfew violation occu rred an d that h is mo ther sto le his
disability check, making him unable to pay the costs.
The trial court considered the report and the testimony of both th e State ’s
witness and Defendant. The trial court determined that the State had met its
burden of producing evidence that the De fenda nt violate d the ru les go vernin g his
community correc tions s enten ce. Alth ough the trial c ourt did not exp ound in
detail its findings of fact in its order revoking community corrections, it is apparent
from the record that substantial evidence existed such that the trial court cou ld
make a conscientious and intelligent decision that the Defendant violated the
required conditions. The trial court specified in its order that the new arrests and
the failure to pay court costs were evidence of the violation s. The re cord reflec ts
that the Defendant failed to notify King of the arrests. We cannot conclude that
the trial judge abused his discretion in finding that the Defendant failed to meet
the condition s of his sen tence, thus warranting revoc ation. According ly, we affirm
the judgm ent of the tria l court.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
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