State of Tennessee v. Tanya Dawn Everett ( 2022 )

11/03/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 27, 2022
STATE OF TENNESSEE v. TANYA DAWN EVERETT
Appeal from the Circuit Court for Blount County
No. C-22411 David Reed Duggan, Judge
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No. E2022-00189-CCA-R3-CD
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Following a conviction for theft of property, the Defendant, Tanya Dawn Everett, was
sentenced to a term of four years and placed on probation. Thereafter, the Blount County
Circuit Court found that the Defendant violated the terms of her probation by failing to
report and by committing new criminal offenses. As a consequence, the trial court revoked
the suspended sentence and ordered the Defendant to serve the balance of her original
sentence in custody. On appeal, the Defendant argues that the trial court abused its
discretion by ordering her to serve the balance of her sentence in confinement. We
respectfully affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TOM GREENHOLTZ, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., P.J., and CAMILLE R. MCMULLEN, J., joined.
J. Liddell Kirk, Madisonville, Tennessee (on appeal), and Mack Garner, Maryville,
Tennessee (at hearing), for the appellant, Tanya Dawn Everett.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior
Assistant Attorney General; Mike Flynn, District Attorney General; and Tracy Jenkins,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On August 11, 2014, the Defendant pled guilty to the offense of theft of property as
a Class D felony. The Blount County Circuit Court sentenced her to a term of four years,
but it suspended the sentence and placed the Defendant on probation.
On August 24, 2015, and again on June 22, 2018, the trial court found the Defendant
to be in material violation of her probation. For the first violation, the court ordered the
Defendant to serve 210 days before returning to supervised probation. For the second
violation, the trial court ordered her to serve 80 days before returning to supervised
probation, and it extended the Defendant’s probationary period by one year. On August 6,
2018, the trial court issued a third probation violation warrant alleging that the Defendant
had failed to report to her probation officer, and the Defendant remained out of contact
until she was arrested more than three years later on November 29, 2021.
Following the Defendant’s arrest, the Blount County Circuit Court held a revocation
hearing on the third warrant on January 24, 2022. At this hearing, the Defendant stipulated
to violating her probation by failing to report to her probation officer since July 3, 2018,
and the State called Deputy Jarred Pekala of the Blount County Sheriff’s Office to testify
about the Defendant’s arrest.1
Deputy Pekala testified that while he was on routine patrol on November 29, 2021,
he pulled over a vehicle wherein Defendant was a passenger. When Deputy Pekala asked
for the identification of all the vehicle’s occupants, the Defendant gave him a false name
and insisted that she could not remember her complete social security number.
After searching the vehicle, Deputy Pekala discovered a cigarette pouch containing
heroin next to where the Defendant was sitting. As Deputy Pekala attempted to identify
the Defendant, she continually alleged that her son, suffering from cerebral palsy and for
whom she was the sole caregiver, was alone in her trailer. Deputy Pekala later discovered
that, although the Defendant did have a son suffering from cerebral palsy, the son was in a
different state with another caretaker.
After the State concluded its proof with Deputy Pekala, the Defendant testified on
her own behalf. She confirmed that she had previously violated the terms of her probation
1
The State did not call the Defendant’s probation officer, Bruce Paulson, because he was
under quarantine for COVID-19.
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by possessing drug paraphernalia and was sentenced to serve time in custody. Upon her
release from her previous violation, she reported to her probation officer and “stayed clean”
for a few weeks. The Defendant testified that she passed her initial drug screens, but her
probation officer announced that he would be “violating” her probation after he believed
that she “masked” a drug screen. After this encounter, the Defendant stopped reporting to
her probation officer because she believed that she “didn’t have [any] other date to report
to.”
The Defendant denied knowing there was heroin in her cigarette pouch and denied
telling Detective Pekala that her son had cerebral palsy. The Defendant admitted that she
was not able to stay clean after she stopped reporting, and she asked the court to extend her
probation by a year and “give [her] one more chance and let her get help.”
On cross-examination, the Defendant admitted that she had fourteen prior felony
convictions and that she had served a total of 290 days on her prior two violations. When
she was asked whether she stopped reporting due to the arrest warrant, the Defendant
replied, “Yeah, I don’t think you’re supposed to report once they tell you there’s a warrant.”
When the prosecutor pushed her further on this subject, she replied, “They never came to
my house. And I thought it was weird, but you know I was on my knees praying too. But
usually the ink on the warrant isn’t dry until they’re stopping in my driveway and, you
know, getting me.”
Based upon the Defendant’s stipulation and the testimony elicited at the hearing, the
trial court announced its decision as follows:
The Court finds upon this proof that she has engaged – the Defendant has
engaged in a material violation of her terms of probation based upon failing
to report, which has been stipulated to since July 3. And the Court also finds
that the State has carried its burden of proof by a preponderance of the
evidence that on November 29th she committed the offenses of false report,
simple possession, and criminal impersonation. False report is a felony. She
also has two priors. So the ruling of the Court will be that her probation is
revoked[,] and she’ll be ordered to serve her sentence.
Thereafter, the Defendant filed a timely notice of appeal, arguing that the trial court abused
its discretion by ordering that she serve the balance of her sentence. We affirm the trial
court’s judgment.
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STANDARD OF APPELLATE REVIEW
Our Supreme Court has recognized that “the first question for a reviewing court on
any issue is ‘what is the appropriate standard of review?’” State v. Enix, No. E2020-00231-
SC-R11-CD, 2022 WL 4137238, at *4 (Tenn. Sept. 13, 2022). The principal issue in this
case is whether the trial court acted within its discretion in fully revoking the Defendant’s
suspended sentence. We review this issue for an “abuse of discretion with a presumption
of reasonableness so long as the trial court places sufficient findings and the reasons for its
decisions as to the revocation and the consequence on the record.” State v. Dagnan, 641
S.W.3d 751, 759 (Tenn. 2022). However, if the trial court does not make such findings,
then this Court “may conduct a de novo review if the record is sufficiently developed for
the court to do so, or [we] may remand the case to the trial court to make such findings.”
Id.In Dagnan, our Supreme Court was clear that, while a trial court’s findings need not
“be particularly lengthy or detailed,” they must be “sufficient for the appellate court to
conduct a meaningful review of the revocation decision.” Id. at 757-59. With that principle
in mind, it may be a close question, respectfully, as to whether the trial court’s findings
here allow us to conduct meaningful appellate review, such that an abuse-of-discretion
standard applies.
That said, we note that both parties agree that we should review the trial court’s
decision for an abuse of discretion. It is also clear that the trial court’s consideration of the
issues complied with Dagnan’s two-step framework, and the court did not simply rely upon
the fact of a current violation as the reason to revoke the Defendant’s suspended sentence.
In similar cases, we have reviewed revocation decisions for an abuse of discretion. See
State v. Taylor, No. M2021-00954-CCA-R3-CD, 2022 WL 1413588, at *2 (Tenn. Crim.
App. May 4, 2022) (applying abuse-of-discretion review when the trial court considered
the prior violations of probation); State v. Gibbs, No. M2021-00933-CCA-R3-CD, 2022
WL 1146294, at *7 (Tenn. Crim. App. Apr. 19, 2022) (applying abuse-of-discretion review
when the trial court “considered more than just the finding of a violation,” despite the trial
court only considering the deliberate intent not to report or comply with reporting
obligations). For these reasons, we review the lower court’s decision for an abuse of
discretion.
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ANALYSIS
When a trial court imposes a sentence for criminal conduct, the court may suspend
the sentence for an eligible defendant and place that defendant upon probation. See Tenn.
Code Ann. §§ 40-35-103; 40-35-303(b). The trial court may also require such a defendant
to comply with various conditions of probation where those conditions are suitable to
facilitate rehabilitation or to protect the safety of the community and individuals in it. State
v. Holmes, No. M2020-01539-CCA-R3-CD, 2022 WL 2254422, at *16 (Tenn. Crim. App.
June 23, 2022) (“The primary purpose of probation sentence, however, ‘is rehabilitation of
the defendant,’ and the conditions of probation must be suited to this purpose.” (quoting
State v. Burdin, 924 S.W.2d 82, 86 (Tenn. 1996); Tenn. Code Ann. § 40-28-302(1)).
So long as a defendant complies with the conditions of the suspended sentence, the
defendant will remain on probation until the sentence expires. State v. Taylor, 992 S.W.2d
941, 944-45 (Tenn. 1999); State v. Moses, No. W2016-01762-CCA-R3-CD, 2018 WL
2292998, at *4 (Tenn. Crim. App. May 18, 2018) (holding that a defendant’s probation
may not be revoked for conduct that does not violate a condition of probation). However,
if a defendant violates a condition of probation, then the trial court may address the
violation as it “may deem right and proper under the evidence,” subject to various statutory
restrictions. Tenn. Code Ann. § 40-35-311(d)(1) (2021).
As such, the nature of a probation revocation proceeding naturally involves a two-
step process with “two distinct discretionary decisions.” Dagnan, 641 S.W.3d at 757. As
our Supreme Court confirmed in Dagnan, the “first [step] is to determine whether to revoke
probation, and the second is to determine the appropriate consequence upon revocation.”
Id.
As to the first step, a trial court cannot find a violation of the conditions of probation
unless the record supports that finding by a preponderance of the evidence. See State v.
Beard, 189 S.W.3d 730, 734-35 (Tenn. Crim. App. 2005); Tenn. Code Ann. § 40-35-
311(d)(1). Where a defendant admits that he or she violated a condition of probation, the
trial court may properly find that a violation exists. See State v. Johnson, 15 S.W.3d 515,
518 (Tenn. Crim. App. 1999); see also, e.g., State v. Brewster, No. E2021-00793-CCA-
R3-CD, 2022 WL 2665951, at *4 (Tenn. Crim. App. July 11, 2022). Because the
Defendant does not challenge the trial court’s decision as to this first step, we affirm the
trial court’s finding that the Defendant committed a violation of probation.
As to the second step, the consequence determination essentially examines whether
the beneficial goals of probation are being realized and whether the defendant remains an
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appropriate candidate for probation. As the Supreme Court observed in Dagnan, a trial
court may consider factors relevant to the nature and seriousness of the present violation,
the defendant’s previous history on probation, and the defendant’s amenability to future
rehabilitation. See Dagnan, 641 S.W.3d at 759 n.5. Factors important to this last
consideration may include the defendant’s acceptance of responsibility and genuine
remorse, as well as whether the defendant will comply with orders from the court to ensure
his or her effective rehabilitation. State v. Owens, No. E2021-00814-CCA-R3-CD, 2022
WL 2387763, at *5 (Tenn. Crim. App. July 1, 2022); Tenn. Code Ann. § 40-35-102(3)(C).
Trial courts may also consider whether the violation shows that the defendant is a danger
to the community or individuals in it. Tenn. Code Ann. § 40-28-302(1) (“Supervised
individuals shall be subject to: (1) Violation revocation proceedings and possible
incarceration for failure to comply with the conditions of supervision when such failure
constitutes a significant risk to prior victims of the supervised individual or the community
at large and cannot be appropriately managed in the community[.]”).
In this case, the trial court found that the appropriate consequence of the Defendant’s
violations was the full revocation of her sentence. The Defendant argues that the trial court
abused its discretion in this second step by not ordering a period of split confinement and
substance-use treatment. Conversely, the State argues that the trial court acted within its
discretion by fully revoking the Defendant’s probation. We agree with the State and
conclude that the trial court appropriately considered and weighed the factors suggested by
Dagnan.
A. SERIOUSNESS OF THE VIOLATIONS
The trial court first considered the seriousness of the established violations. With
respect to the Defendant’s new criminal conduct, the trial court found that the Defendant
committed three separate criminal offenses and that one of the offenses was a felony. These
were appropriate considerations. The rehabilitative goals of probation are directed
precisely toward the goal of lawful conduct and public safety. Thus, this Court has long
recognized that where the probationer continues to commit new crimes, the beneficial
aspects of probation are not being served. State v. Covington, No. E2019-00359-CCA-R3-
CD, 2020 WL 2560933, at *4 (Tenn. Crim. App. May 20, 2020) (observing that the
“Defendant’s ‘continued criminal conduct’ while on probation indicated that ‘the
beneficial aspects of probation [we]re no longer being served’”). The seriousness of the
violation only increases when the probationer continues to commit new felony offenses
while on probation for a felony.
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With respect to the Defendant’s failure to report, the trial court specifically noted
that the Defendant had failed to report to her probation officer from July 3, 2018, through
her arrest on November 29, 2021—a period of more than three years. This also was an
appropriate consideration. Because supervision may be important to aid a probationer’s
rehabilitation and to protect public safety, a probationer’s failure to voluntarily comply
with supervision may reflect poorly on the probationer’s “suitability for further
probationary efforts.” State v. Chatman, No. E2000-03123-CCA-R3-CD, 2001 WL
1173895, at *2 (Tenn. Crim. App. Oct. 5, 2001). Moreover, the intentionality of an
absconsion is relevant to whether the probationer is willing to engage in rehabilitative
efforts. See State v. Gibbs, No. M2021-00933-CCA-R3-CD, 2022 WL 1146294, at *7
(Tenn. Crim. App. Apr. 19, 2022) (affirming full revocation of a sentence for failure to
report when probationer willfully failed to call and maintain contact with community
corrections officer). Indeed, a sustained period of absconsion can show that the probationer
has a complete disregard for the rehabilitative process and the orders of the court. The trial
court did not abuse its discretion by considering these factors.
B. PRIOR VIOLATIONS
The trial court also considered that the Defendant had twice violated the conditions
of her probation before committing the instant violations. This was an appropriate
consideration. In Dagnan, our Supreme Court specifically referenced this factor as part of
the consequence determination. Dagnan, 641 S.W.3d at 759 n.5. We have also recognized
that prior violations may show that the defendant has poor potential for rehabilitation and
is unwilling to engage in rehabilitative efforts. See, e.g., State v. Smartt, No. E2021-00125-
CCA-R3-CD, 2021 WL 6143735, at *10 (Tenn. Crim. App. Dec. 30, 2021) (“[T]he trial
court did not err by considering the defendant’s history of supervision when determining
that he should serve the balance of his sentences in confinement. The record establishes
that the defendant was either unwilling or unable to successfully complete a sentence
involving release into the community.”); State v. Skettini, No. E2017-02468-CCA-R3-CD,
2018 WL 3471150, at *2 (Tenn. Crim. App. July 18, 2018) (“In addition, the Defendant
had three prior probation violations for which he received sentences alternative to
incarceration. Given the Defendant’s history, his testimony, and the testimony of his
probation officer, it is evident that the Defendant has little regard for the probation
conditions imposed.”); State v. Cook, No. E2013-01563-CCA-R3-CD, 2014 WL 265789,
at *3 (Tenn. Crim. App. Jan. 23, 2014) (“[T]he appellant’s repeated violations [on a fourth
violation] and continued drug use indicate that he has poor potential for rehabilitation.”).
The trial court did not abuse its discretion by considering this factor.
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CONCLUSION
In summary, we hold that the trial court properly exercised its discretion in ordering
the Defendant to serve her original sentence as a consequence of her probation violations.
The trial court considered the seriousness of the violations consisting of new criminal
conduct, including a felony offense, and her lengthy absconsion from supervision. It also
considered the Defendant’s prior history on probation and her two prior violations of
probation. Because these considerations were fully consistent with the Supreme Court’s
decision in Dagnan, we respectfully affirm the trial court’s judgment.
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TOM GREENHOLTZ, JUDGE
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