State v. Amanda Markowicz ( 2010 )


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  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    FILED
    AT KNOXVILLE                        July 7, 1999
    Cecil Crowson, Jr.
    MARCH 1999 SESSION                  Appellate C ourt
    Clerk
    STATE OF TENNESSEE,               *    C.C.A. # 03C01-9804-CC-00144
    Appellee,                   *    BLOUNT COUNTY
    VS.                               *    Hon. D. Kelly Thomas, Jr., Judge
    AMANDA MARKOWICZ,                 *    (Revocation of Community Corrections
    Sentence)
    Appellant.                  *
    For Appellant:                         For Appellee:
    Gregory D. Smith, Attorney             John Knox Walkup
    One Public Square, Ste. 321            Attorney General and Reporter
    Clarksville, TN 37040
    and                                    Michael J. Fahey, II
    Mack Garner                            Assistant Attorney General
    District Public Defender               Criminal Justice Division
    419 High Street                        425 Fifth Avenue North
    Maryville, TN 37804                    Nashville, TN 37243
    (on appeal)
    Edward P. Bailey, Jr.
    Edgar A. Wilder, Attorney              Assistant District Attorney General
    222 Ellis Avenue                       Blount County Courthouse
    Maryville, TN 37804                    363 Court Street
    and                                    Maryville, TN 37804
    Richard L. Gann, II, Attorney
    P.O. Box 6888
    Maryville, TN 37802
    (at trial)
    OPINION FILED:__________________________
    AFFIRMED
    GARY R. WADE, PRESIDING JUDGE
    OPINION
    The defendant, Amanda Markowicz, appeals the trial court's
    revocation of a sentence under the community corrections program. The single
    issue presented for review is whether the trial court erred by revoking the community
    corrections sentence.
    We affirm the judgment of the trial court.
    On December 4, 1997, the defendant entered four guilty pleas for
    which she received the following concurrent sentences:
    Facilitation of aggravated burglary          Two years, Range I
    Burglary                                     Two years, Range I
    Theft over $500                              One year, Range I
    Theft over $1,000                            Two years, Range I
    The trial court entered an alternative sentencing order which included a behavioral
    contract and conditions on the community corrections sentence. Included among
    the conditions was an acknowledgment of the authority of the trial court to revoke
    community corrections and to impose a maximum sentence. 
    Tenn. Code Ann. § 40-36-106
    .
    On February 25, 1998, a warrant was issued against the defendant for
    her failure to report to her supervisor and for her failure to perform the required
    amount of community service. At the revocation hearing, the defendant did not
    dispute her failure to report but did contend that marital difficulties with her husband
    and an incorrect telephone number had contributed to a breakdown in
    communications with her supervising officer, Patricia Ridings. The defendant also
    claimed that she had performed four hours of community service work in December
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    but conceded that she had otherwise failed to meet her responsibilities in that
    regard. At the conclusion of the hearing, the trial court revoked the community
    corrections sentence and, rather than imposing a prison term, ordered six months in
    jail after which the defendant would be permitted to reapply for community
    corrections.
    The purpose of the Community Corrections Act of 1985 was to provide
    an alternative means of punishment for "selected, nonviolent felony offenders in
    front-end community based alternatives to incarceration." 
    Tenn. Code Ann. § 40-36-103
    . The community corrections sentence provides a desired degree of
    flexibility that may be both beneficial to the defendant yet serve legitimate societal
    aims. State v. Griffith, 
    787 S.W.2d 340
    , 342 (Tenn. 1990). That the defendant
    meets the minimum requirements of the Community Corrections Act of 1985,
    however, does not mean that he or she is entitled to be sentenced under the Act as
    a matter of law or right. State v. Taylor, 
    744 S.W.2d 919
     (Tenn. Crim. App. 1987).
    The following offenders are eligible for community corrections:
    (1) Persons who, without this option, would be
    incarcerated in a correctional institution;
    (2) Persons who are convicted of property-related, or
    drug/alcohol-related felony offenses or other felony
    offenses not involving crimes against the person as
    provided in title 39, chapter 2 [repealed], parts 1-3 and
    5-7 or title 39, chapter 13, parts 1-5;
    (3) Persons who are convicted of nonviolent felony
    offenses;
    (4) Persons who are convicted of felony offenses in
    which the use or possession of a weapon was not
    involved;
    (5) Persons who do not demonstrate a present or past
    pattern of behavior indicating violence;
    (6) Persons who do not demonstrate a pattern of
    committing violent offenses; and
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    (7) Persons who are sentenced to incarceration or on
    escape at the time of consideration will not be eligible.
    
    Tenn. Code Ann. § 40-36-106
    (a).
    Once a defendant violates the terms of his community corrections
    sentence, the trial court may revoke the sentence and impose a new sentence:
    The court shall also possess the power to revoke the
    sentence imposed at any time due to the conduct of the
    defendant or the termination or modification of the
    program to which the defendant has been sentenced,
    and the court may resentence the defendant to any
    appropriate sentencing alternative, including
    incarceration, for any period of time up to the maximum
    sentence provided for the offense committed, less any
    time actually served in any community-based alternative
    to incarceration.
    
    Tenn. Code Ann. § 40-36-106
    (e)(3).
    Trial courts have authority to revoke a community corrections sentence
    based upon the conduct of the defendant. 
    Tenn. Code Ann. § 40-36-106
    (e)(3). A
    trial judge's decision to revoke a defendant's release on community corrections
    should not be disturbed unless there is an abuse of discretion. State v. Harkins, 
    811 S.W.2d 79
    , 82 (Tenn. 1991). In order to find an abuse of discretion, it must appear
    that the record contains "no substantial evidence to support the conclusion of the
    trial judge that a violation of the conditions ... occurred." 
    Id.
    The same principles applicable to a probation revocation are relevant
    to the revocation of community corrections. 
    Id. at 83
    . The trial judge is not required
    to find that a violation of the terms of probation has occurred beyond a reasonable
    doubt. Stamps v. State, 
    614 S.W.2d 71
    , 73 (Tenn. Crim. App. 1980). Rather, the
    existence of a violation of probation need only be supported by a preponderance of
    the evidence. 
    Tenn. Code Ann. § 40-35-311
    (d). Here, the trial court had a factual
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    basis to revoke the sentence because the defendant "just quit" in her performance
    of the terms and conditions of the alternative sentence. The trial court observed that
    the defendant had not taken advantage of the potential benefits of the program
    because she had made little effort to develop a positive relationship with her
    supervisor. Some consideration was given to a "halfway house" alternative which
    might have been available but was not ordered; however, the trial court chose a jail
    sentence. There is insufficient information in this record for this court to conclude
    that there was any abuse of discretion in the imposition of a six-month jail sentence
    rather than continuing participation in the community corrections program or
    placement in a different program with even greater restrictions on release. Because
    the trial court saw and heard the defendant firsthand and must be afforded
    reasonable discretion in the imposition of alternative sentences, this court cannot
    disagree.
    Accordingly, the judgment is affirmed.
    ________________________________
    Gary R. Wade, Presiding Judge
    CONCUR:
    _____________________________
    Norma McGee Ogle, Judge
    _____________________________
    Cornelia A. Clark, Special Judge
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