State of Tennessee v. David Muangkhot ( 2015 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs February 11, 2015
    STATE OF TENNESSEE v. DAVID MUANGKHOT
    Appeal from the Circuit Court for Bedford County
    Nos. 15656, 15657   Franklin L. Russell, Judge
    No. M2014-01029-CCA-R3-CD - Filed March 19, 2015
    In January 2005, David Muangkhot (“the Defendant”) pleaded guilty to one count of sale of
    a Schedule I controlled substance and one count of possession of a Schedule I controlled
    substance with the intent to sell. Pursuant to a plea agreement, the trial court imposed
    concurrent, 10-year sentences and ordered the Defendant to serve his sentence in
    confinement. Following the completion of a boot camp program, the Defendant was released
    and placed on supervised probation for the remainder of his sentence pursuant to Tennessee
    Code Annotated section 40-20-206. In April 2014, the trial court issued a violation of
    probation warrant and, following a hearing, revoked the Defendant’s probation and imposed
    the Defendant’s original sentence. On appeal, the Defendant argues that the trial court
    abused its discretion by ordering him to serve his sentence. Upon review, we affirm the
    judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which T HOMAS T.
    W OODALL, P.J., and T IMOTHY L. E ASTER, J., joined.
    Donna L. Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant
    District Public Defender, Shelbyville, Tennessee, for the appellant, David Muangkhot.
    Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
    General; Robert Carter, District Attorney General; and Richard Aaron Cawley, Assistant
    District Attorney General, for the appellee, State of Tennessee.
    OPINION
    I. Facts
    In November 2004, the Bedford County Grand Jury indicted the Defendant for one
    count of sale of Schedule I controlled substance and one count of delivery of a Schedule I
    controlled substance in case number 15656. In case number 15657, the grand jury indicted
    the Defendant for one count each of possession of a Schedule I controlled substance with
    intent to sell, possession of a Schedule I controlled substance with intent to deliver, and
    unlawful carrying of a weapon. On January 20, 2005, the Defendant pleaded guilty, as a
    Range I standard offender, to one count of sale of a Schedule I controlled substance and one
    count of possession of a Schedule I controlled substance with intent to sell. The Defendant
    received concurrent sentences of 10 years at 30% to serve on both counts. On August 16,
    2005, the Defendant completed a boot camp program and was placed on supervised
    probation for the remainder of his sentence.
    On April 15, 2014, the trial court issued a violation of probation warrant based upon
    allegations that the Defendant had tested positive for marijuana and cocaine. At a hearing
    conducted on May 16, 2014, the Defendant admitted that he had violated the terms of his
    probation. The Defendant testified that he lived with his parents in Murfreesboro. He was
    engaged to be married and was working two jobs at the time of his arrest on the violation
    warrant. The Defendant testified that he had no prior violations of probation. He had
    reported to his probation officer as required, paid all fines, and passed all other drug screens
    given to him since 2005. The Defendant further explained that, other than the underlying
    convictions, he had no other criminal history.
    Regarding the violation of probation, the Defendant testified that he smoked a
    marijuana joint while attending a Super Bowl party on February 3, 2014. He explained that
    he did not know the joint was laced with cocaine until he inhaled. As an explanation for his
    use of drugs, the Defendant stated that he was under a lot of stress because he had lost his
    sister that year and because his father was sick. The Defendant stated that he only smoked
    one joint and he had thought that he could “beat the system.”
    Following the Defendant’s testimony, defense counsel argued that there was no
    excuse for the Defendant’s behavior but asked the trial court to “be gracious and consider
    that . . . this was his first violation. And other than this one positive drug screen, he appears
    to have done quite well on probation . . . .” At the conclusion of the hearing, the trial court
    determined that the Defendant had violated the terms of his probation, and it revoked
    probation and ordered the Defendant to serve his sentence. This timely appeal followed.
    -2-
    II. Analysis
    On appeal, the Defendant acknowledges that he violated the terms of his probation
    by testing positive for controlled substances, but he argues that the trial court improperly
    required him to serve the balance of his sentence. He asserts that the trial court should have
    imposed a sentence of split confinement followed by inpatient drug rehabilitation. The State
    responds that the trial court did not abuse its discretion by revoking the Defendant’s
    probation and ordering his sentence into effect. We agree with the State.
    Upon a finding by a preponderance of the evidence that a defendant has violated a
    condition of his or her probation, a trial court may revoke probation and order the imposition
    of the original judgment. Tenn. Code Ann. §§ 40-35-310, -311 (2014); State v. Kendrick,
    
    178 S.W.3d 734
    , 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 
    810 S.W.2d 733
    , 735
    (Tenn. Crim. App. 1991)). We will not disturb the trial court’s ruling on appeal absent an
    abuse of discretion. State v. Shaffer, 
    45 S.W.3d 553
    , 554 (Tenn. 2001) (citing State v.
    Harkins, 
    811 S.W.2d 79
    , 82 (Tenn. 1991)). To establish an abuse of discretion, a defendant
    must show that there is “no substantial evidence” in the record to support the trial court’s
    determination that a violation of probation has occurred. 
    Id. Proof of
    a violation does not
    need to be established beyond a reasonable doubt. State v. Milton, 
    673 S.W.2d 555
    , 557
    (Tenn. Crim. App. 1984). Rather, if a trial court finds by a preponderance of the evidence
    that a violation has occurred, the court may revoke the probation and suspension of the
    sentence. Tenn. Code Ann. § 40-35-311(e) (2014).
    Upon finding a violation, the trial court is vested with the statutory authority to
    “revoke the probation and suspension of sentence and cause the defendant to commence the
    execution of the judgment as originally entered.” 
    Id. 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.” Tenn. Code Ann. § 40-35-310. The
    trial court retains the discretionary authority to order the defendant to serve the original
    sentence. See State v. Duke, 
    902 S.W.2d 424
    , 427 (Tenn. Crim. App. 1995).
    Upon review, we conclude that the trial court did not abuse its discretion by revoking
    the Defendant’s probation and ordering the Defendant to serve his sentence. The Defendant
    tested positive for using marijuana and cocaine and admitted that he was guilty of violating
    his probation. Indeed, the Defendant does not challenge the revocation of his probation on
    appeal. The Defendant’s sole issue concerns whether the trial court erred by failing to grant
    him another alternative sentence after revoking his probation. He contends that the sentence
    imposed by the trial court was “not deserved for the committed infraction of the rules of
    probation” and was not the “least severe measure necessary” under the purposes and
    principles of sentencing. See Tenn. Code Ann. § 40-35-103(2), (4) (2014).
    -3-
    However, as we have stated, it was within the trial court’s authority to order the
    Defendant to serve his original sentence upon revoking probation. See Tenn. Code Ann. §§
    40-35-310 and -311(e); 
    Mitchell, 810 S.W.2d at 735
    . 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. Feb. 10, 1999). Finally, when the Defendant entered his guilty plea
    agreement, he accepted an effective 10-year sentence to serve. The Defendant cannot now
    complain that his original, agreed-upon sentence was not in keeping with the purposes and
    principles of sentencing. The Defendant is not entitled to relief.
    III. Conclusion
    For the aforementioned reasons, we affirm the judgment of the trial court.
    _________________________________
    ROBERT L. HOLLOWAY, JR., JUDGE
    -4-