State of Tennessee v. Crystal G. Barnes ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 26, 2010
STATE OF TENNESSEE v. CRYSTAL G. BARNES
Direct Appeal from the Circuit Court for Blount County
Nos. C-17216, C-17358 David R. Duggan, Judge
No. E2009-02290-CCA-R3-CD - Filed January 13, 2011
The appellant, Crystal G. Barnes, was convicted of the promotion of methamphetamine
manufacturing, possessing drug paraphernalia, and introducing drugs into a penal institution.
The trial court imposed a total effective sentence of three years to be served on probation.
Subsequently, the trial court revoked the appellant’s probation and ordered her to serve six
months in confinement before being released again on probation. On appeal, the appellant
challenges the length of confinement ordered by the trial court. Upon review, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.
J. Liddell Kirk (on appeal), Knoxville, Tennessee, and Mack Garner (at trial), Maryville,
Tennessee, for the appellant, Crystal G. Barnes.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Andrew Watts, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In March 2008, the appellant was indicted by the Blount County Grand Jury on one
count of the promotion of methamphetamine manufacturing and one count of possession of
drug paraphernalia. Thereafter, on July 7, 2008, the appellant was charged by information
with introducing drugs into a penal institution and pled guilty to the three outstanding
charges. The plea agreement provided that the appellant, a standard Range I offender, would
receive a sentence of three years for the introduction of drugs into a penal institution, two
years for the promotion of methamphetamine manufacturing, and eleven months and twenty-
nine days for the possession of drug paraphernalia. The plea agreement further provided that
the sentences were to be served concurrently for a total effective sentence of three years, to
be served on supervised probation.
On August 20, 2009, a probation revocation warrant was filed against the appellant,
alleging that she had violated the terms of her probation by testing positive for
methamphetamine, failing to pay court costs, and failing to obtain an alcohol and drug
assessment.
On October 12, 2009, the trial court conducted a probation revocation hearing. At the
hearing, Jada Tice testified that she had been the appellant’s probation officer since April
2009 when the appellant’s probation was transferred from Blount County to Anderson
County. Tice said that the appellant attended all of the required meetings. However, on
August 5, 2009, the appellant tested positive for methamphetamine. Tice said the appellant
signed a form, admitting that she had used methamphetamine. Tice stated that the appellant
had failed to make payments toward her court costs and had failed to obtain an alcohol and
drug assessment.
The appellant testified that her probation was transferred from Blount County to
Anderson County because her boyfriend was in jail and she was living with her mother who
was providing her transportation. The appellant stated that she did not incur new charges
during her probation, that she attended all required meetings with her probation officer, and
that she was current on her probation fees. The appellant conceded that on one occasion she
had gone out with friends who used drugs and that she used methamphetamine. The
appellant maintained that while on probation, she used drugs only that one time. She
explained that she had not paid her court costs because she was using her money to pay her
probation fees and to get her driver’s license back. The appellant said that at the time she
violated her probation, she was living in Madisonville and had just obtained a job answering
telephones at Finley’s Garage. The appellant stated that on the day she was arrested for
violating her probation, she had obtained the drug and alcohol assessment schedule and was
supposed to report the next day to begin the assessment. The appellant conceded that she
violated the terms of her probation but maintained that if she were given another
probationary sentence, she would comply with all of the terms of her probation.
At the conclusion of the hearing, the trial court found that the appellant had violated
the terms of her probation. Accordingly, the trial court revoked the appellant’s probation and
-2-
ordered her to serve six months in confinement before being released on supervised
probation. On appeal, the appellant concedes that she violated her probation but argues that
the length of confinement is excessive.
II. Analysis
Upon finding by a preponderance of the evidence that the appellant has violated the
terms of his probation, a trial court is authorized to order an appellant to serve the balance
of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e)
(2006); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In the alternative, “at the
conclusion of a probation revocation hearing, the court shall have the authority to extend the
defendant’s period of probation supervision for any period not in excess of two (2) years.”
Tenn. Code Ann. § 40-35-308(c) (2003); see also State v. Hunter, 1 S.W.3d 643, 646 (Tenn.
1999). Furthermore, probation revocation rests in the sound discretion of the trial court and
will not be overturned by this court absent an abuse of that discretion. State v. Leach, 914
S.W.2d 104, 106 (Tenn. Crim. App. 1995). An abuse of discretion exists when “the record
contains no substantial evidence to support the trial court’s conclusion that a violation has
occurred.” State v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim. App. 1995).
The appellant concedes that she violated the terms of her probationary sentence.
Nevertheless, she maintains that the trial court erred in imposing a six-month term of
confinement. However, it was within the trial court’s authority to order the appellant to serve
her original sentence upon revoking her probation. See Tenn. Code Ann. §§ 40-35-310 and
-311(e); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Moreover, “an
accused, already on probation, is not entitled to a second grant of probation or another form
of alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999
WL 61065, at *2 (Tenn. Crim. App. at Nashville, Feb. 10, 1999); see also State v. Timothy
A. Johnson, No. M2001-01362- CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim. App.
at Nashville, Feb. 11, 2002). Accordingly, we conclude that the trial court did not err in
ordering the appellant to serve six months in confinement.
III. Conclusion
Based upon the foregoing, we affirm the judgment of the trial court.
___________________________________
NORMA McGEE OGLE, JUDGE
-3-