State of Tennessee v. Franklin A. Christy ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 18, 2009
STATE OF TENNESSEE V. FRANKLIN A. CHRISTY
Direct Appeal from the Circuit Court for Dickson County
No. CR5829 Robert E. Burch, Judge
No. M2009-00460-CCA-R3-CD - Filed November 2, 2010
Defendant, Franklin A. Christy, appeals the trial court’s order revoking his probation
and ordering him to serve his sentence in confinement. In this appeal, Defendant
acknowledges that the evidence showed he violated the terms of his probation. However, he
argues that the trial court should have sentenced him to community corrections rather than
order service of the sentence by incarceration. After full review we affirm the order of the
trial court.
Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
C AMILLE R. M CM ULLEN, JJ., joined.
William B. “Jake” Lockert, III, District Public Defender, Ashland City, Tennessee, for the
appellant, Franklin A. Christy.
Robert E. Cooper, Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Dan M. Alsobrooks, District Attorney General; and Billy Miller, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Background
On May 14, 2002, Defendant entered a plea of guilty in the Circuit Court of Dickson
County and was convicted of incest and attempt to commit aggravated sexual battery. He
received concurrent sentences for an effective six-year sentence as a Range I standard
offender. Defendant was ordered to serve one year in the county jail with the balance on
probation. A probation violation warrant was issued on November 13, 2003, alleging that
Defendant had violated his probation by changing residence without permission, failing to
report, and failing to attend sexual abuse counseling.
At the revocation hearing, Paul Arnold, an employee of the Tennessee Board of
Probation and Parole, testified that Defendant’s initial probation officer filed the violation
report in 2003. After the report was filed, Defendant absconded. Mr. Arnold testified that
Defendant had been assigned to him for approximately six months, and Defendant never
reported to him.
Defendant admitted to violating his probation. He testified that he had been in prison
in Arkansas for the past five years for a conviction of second degree sexual battery. He was
released on November 7, 2008. Defendant claimed that he did not realize that Tennessee had
a “hold” on him until the day before his release. He testified that he obtained his GED while
in prison, took a Bible study course, and became an ordained minister. On cross-examination,
Defendant testified that it was one year from the time that he was convicted in Tennessee and
was placed on probation until the time he went to prison in Arkansas. He visited his
probation officer every month until he left for Arkansas on October 8, 2003. Defendant
testified that he went to Arkansas to get a job and was then arrested for second degree sexual
battery. He was incarcerated in Arkansas on November 8, 2003. Upon questioning by the
trial court, Defendant said that he last reported to his probation officer on September 19,
2003.
The trial court found that Defendant had violated his probation and ordered him to
serve the balance of his six-year sentence in confinement.
II. Analysis
Initially, Defendant’s brief in this matter is inadequate to allow a meaningful review
of the issue that he raises. Defendant’s entire argument consists of the following:
The Trial Court erred in revoking the Appellant’s probation. The Trial Court
should have placed the Appellant on Community Corrections based on his
obtaining a degree while in prison and becoming an ordained minister. The
Appellant’s accomplishments during prison and his candor with the court show
him to be a good candidate for Community Corrections. He is a prime
candidate for Community Corrections and should have been ordered to serve
the TDOC sentence on Community Corrections.
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Rule 27(a)(7) of the Tennessee Rules of Appellant of Procedure states that an appellant’s
brief shall contain the following with respect to an argument:
(A) the contentions of the appellant with respect to the issues presented, and
the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to
the record (which may be quoted verbatim) relied on; and
(B) for each issue, a concise statement of the applicable standard of review
(which may appear in the discussion of the issue or under a separate heading
placed before the discussion of the issues)[.]
Tenn. R. App. P. 27(a)(7)(A)-(B). Under Rule 10(b) of the Rules of the Court of Criminal
Appeals, “Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this Court.” Defendant’s argument does
not contain any references to the record, a concise statement of the applicable standard of
review, or citation to any legal authority. In any event, we will briefly address the issue
raised by Defendant.
Defendant does not dispute that he violated the terms of his probation. However, he
argues that the trial court should have sentenced him to community corrections rather than
incarceration.
A trial court may revoke a sentence of probation upon a finding by a preponderance
of the evidence that the defendant has violated the conditions of his release. T.C.A. § 40-35-
311(e) (2006); Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). A revocation
will be upheld absent a showing that the trial court abused its discretion. State v. Harkins,
811 S.W.2d 79, 82 (Tenn. 1991). In order to establish that the trial court has abused its
discretion, the defendant must show that there is no substantial evidence to support the
determination that he violated his probation. Id. (citing State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). Relief will be
granted only when “‘the trial court's logic and reasoning was improper when viewed in light
of the factual circumstances and relevant legal principles involved.’” State v. Shaffer, 45
S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
Upon finding a violation, the trial court may “revoke the probation and suspension of
sentence and cause the defendant to commence the execution of the judgment as originally
entered.” T.C.A. § 40-35-311(e). Furthermore, when probation is revoked, “the original
judgment so rendered by the trial judge shall be in full force and effect from the date of the
revocation of such suspension.” Id. § 40-35-310. The trial judge retains the discretionary
authority to order the defendant to serve the original sentence. See State v. Duke, 902 S.W.2d
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424, 427 (Tenn. Crim. App. 1995). This Court has held “that 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-CCA-00504, 1999 WL 61065,
at *2 (Tenn. Crim. App. Feb. 10, 1999), perm. app. denied (Tenn. 1999).
We conclude that upon revoking Defendant’s probation, the trial court did not abuse
its discretion in ordering Defendant to serve his original sentence in confinement. The court
was under no obligation to consider a sentence of community corrections. Defendant is
entitled to no relief in this appeal.
CONCLUSION
Based on a thorough review of the record, the brief of the parties, and the law
governing the issue presented for review, the judgment of the trial court is affirmed.
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THOMAS T. WOODALL, JUDGE
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