State of Tennessee v. Marilda Evon Green ( 2020 )

04/21/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 20, 2019
STATE OF TENNESSEE v. MARILDA EVON GREEN
Appeal from the Circuit Courts for Jefferson and Grainger County
No. 12981 and No. 5763 O. Duane Slone, Judge
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No. E2018-01287-CCA-R3-CD
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The Defendant, Marilda Evon Green, appeals from the Jefferson and Grainger County
Circuit Courts’ orders revoking her probation based upon her guilty plea to a separate
charge of aggravated statutory rape and reinstating her effective six-year sentence. The
Defendant contends that the trial court abused its discretion by requiring her to serve the
balance of her sentence in custody and subsequently denying her motions to reduce the
sentence and petitions for early release. Following our review, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Courts Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and JAMES CURWOOD WITT, JR., JJ., joined.
Lu Ann Ballew, Dandridge, Tennessee (on appeal); Edward C. Miller, District Public
Defender; and Mendi Winstead, Assistant Public Defender (at hearing), for the appellant,
Marilda Evon Green.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Jimmy Dunn, District Attorney General; and Jeremy D. Ball, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
In August 2015, the Defendant was indicted in Jefferson County on one count of
theft of $10,000 or more but less than $60,000, a Class C Felony; one count of forgery of
$10,000 or more but less than $60,000, a Class C Felony; three counts of forgery of
$1,000 or more but less than $10,000 a Class D Felony; and thirty-five counts of forgery,
a Class E Felony. See Tenn. Code Ann. §§ 39-14-103, -114, -115 (2015). All counts
involved the same victim. She was also indicted in Grainger County on a separate count
of forgery in connection with the same victim.
On January 25, 2016, the Defendant pled guilty in Jefferson County to all counts
aside from two counts of forgery of $1,000 or more but less than $10,000, which were
dismissed pursuant to the plea agreement. She also pled guilty to the Grainger County
charge on the same date.1
These cases arose from the Defendant’s financially abusing an eighty-eight-year-
old victim, for whom she was a hired caregiver. As part of her guilty plea, she received
an agreed-upon sentence of six years, with one year to be served in confinement and the
remainder to be served on probation.
Thereafter, on February 27, 2018, the Defendant pled guilty in Cocke County to
five counts of aggravated statutory rape and received an effective sentence of ten years;
she was also required to register as a sex offender. The convictions were a result of the
thirty-two-year-old Defendant’s having a sexual relationship with a sixteen-year-old boy,
which culminated in the Defendant’s giving birth to a baby girl. The sentence was
ordered to be served consecutively to the sentences in the Grainger and Jefferson County
cases.
While the aggravated statutory rape charges were pending, on March 21, 2017, the
State filed two violations of probation related to the elder financial abuse cases, alleging
that the Defendant violated the terms of her release by committing aggravated statutory
rape. On March 19 and 20, 2018, the Defendant pled guilty in Jefferson and Grainger
Counties, respectively, to violating her probation.
At a May 30, 2018 hearing on the violations of probation, David Hensley, the
elderly victim’s son, testified that although he had agreed with the Defendant’s original
sentence, he now believed that the Defendant should be held “accountable.” Mr. Hensley
noted that his mother’s estate had not received any restitution from the Defendant.
The Defendant testified that she was remorseful for her actions against the elderly
victim and had since “turned [her] life around.” The Defendant stated that she was
addicted to opiate painkillers and moonshine at the time she stole from the victim but had
abstained from drugs and alcohol for three years. She stated that she was working with
the Department of Children’s Services (DCS) to obtain a home for herself and regain
custody of her children. The Defendant had recently found gainful employment and was
making court cost payments. The Defendant requested that the court waive her court
costs so that all of her payments could be applied directly to restitution.
1
The respective cases have been consolidated for appeal.
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Teresa Fletcher, a licensed marriage and family therapist, testified that she was
appointed by the Cocke County Circuit Court to assess the Defendant’s risk of
reoffending as a sex offender and the Defendant’s treatment needs. Ms. Fletcher
reviewed the Defendant’s medical records, where she learned of the Defendant’s Post
Traumatic Stress Disorder diagnosis. Ms. Fletcher noted that the Defendant was a victim
of child sexual abuse and was raped at gunpoint as an adult; she further noted that the
Defendant had undergone “some sort of trauma” every year of her life. Based upon Ms.
Fletcher’s evaluation, the Defendant was a “low to moderate” risk to reoffend, and she
opined that the Defendant could be treated with a “gender-responsive outpatient sex
offender treatment protocol,” which often yielded successful results. Ms. Fletcher stated,
though, that no sex offender treatment was available to incarcerated women in Tennessee.
On June 18, 2018, the trial court issued an oral ruling revoking the Defendant’s
probation. The trial court found that there was “no question” the Defendant had a “very
traumatized childhood” and could benefit from “extensive therapy,” but that by incurring
new convictions, the Defendant had violated the terms of her probation. The court found
that the Defendant had “a very real behavioral health disorder with [her] willingness to
commit crimes.” Relative to the elderly victim, the court noted that although the
Defendant’s opiate addiction “unquestionably impaired [her] judgment,” she did not steal
“just to support an addiction, [she was] stealing to buy things” and that “those things
[could not] go unnoticed.” The court stated that the then-seventeen-year-old victim of
aggravated statutory rape “now [had] a child that [he was] responsible for” and that
regardless of the victim’s willingness to participate in sexual activity, “that [was]
something that [the Defendant, at her] age should have [had] no part in doing.” The trial
court stated that it was persuaded the Defendant should serve the balance of her sentence
in the Tennessee Department of Correction. The Defendant timely appealed on July 17,
2018.
The Defendant subsequently filed motions to reduce her sentence on July 17,
2018, in both Jefferson and Grainger Counties. The motions relied on Tennessee Rule of
Criminal Procedure 35 and requested that the trial court release the Defendant upon time
served and reinstate her supervised enhanced probation as a sex offender. As the basis
for her motion, the Defendant simply restated the evidence from her probation revocation
hearing. At an August 6, 2018 hearing, defense counsel argued that one factor the trial
court considered when revoking the Defendant’s probation was that her potential release
date would be “mid[-]March” 2019, but her Tennessee Department of Correction felony
offender information showed her parole eligibility to be August 20, 2019. Based on this
five-month gap, the Defendant was asking for a sentence reduction. At the conclusion of
the hearing, the trial court dismissed both motions stating that the trial court’s estimated
release date for the Defendant “ha[d] absolutely zero bearing on [the trial] court’s
decision.” The Defendant timely appealed on August 31, 2018. This court consolidated
the Defendant’s appeals on September 13, 2018.
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On January 22, 2019, and January 24, 2019, the Defendant submitted petitions for
early release in Jefferson and Grainger Counties, respectively, citing her elderly mother’s
need for additional in-home care. At a February 27, 2019 hearing, the trial court stated
that it had compassion for the Defendant’s situation but that hardships were an
“unfortunate” consequence of confinement for criminal offenses. The court declined to
order early release. The Defendant timely appealed on March 28, 2019.
ANALYSIS
I. Violation of Probation
The Defendant contends that the trial court abused its discretion by refusing to
allow her to remain on probation, noting her positive achievements on probation such as
drug and alcohol abstinence, obtaining gainful employment, and working toward
obtaining her GED and regaining custody of her children. Although the Defendant
acknowledges that she violated the terms of her probation by committing aggravated
statutory rape, she argues that she “already resolved [the aggravated statutory rape] case
by a guilty plea” and has “already been held accountable for her criminal conduct.” The
Defendant further argues that the trial court erred by finding the need for “further
accountability” outweighed the mitigating circumstances of her traumatic personal
history and otherwise successful compliance with the terms of probation. The State
responds that the trial court properly exercised its discretion by ordering the Defendant to
serve the balance of her sentence in confinement because she violated the terms of her
probation by incurring new convictions. We agree with the State.
A trial court may revoke a sentence of probation when it is found by a
preponderance of the evidence that the defendant has violated the conditions of release.
Tenn. Code Ann. § 40-35-311(e). Once it is found by a preponderance of the evidence
that a defendant has violated the conditions of release, the trial court “shall have the right
. . . to revoke the probation and suspension of sentence” and either “commence the
executions of the judgment as originally entered” or “resentence that defendant for the
remainder of the unexpired term to any community-based alternative to incarceration.”
Tenn. Code Ann. § 40-35-311(e). During a term of probation supervision, 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). In a
probation revocation hearing, the credibility of the witnesses is determined by the trial
court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). The decision to
revoke probation is in the discretion of the trial judge. State v. Kendrick, 178 S.W.3d
734, 738 (Tenn. Crim. App. 2005).
The decision of the trial court to revoke probation will be upheld on appeal unless
there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)
(citing State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981)). To find an
abuse of discretion “it must be established that the record contains no substantial
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evidence to support the conclusion of the trial judge that a violation of the conditions of
probation has occurred.” 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). Substantial evidence is
defined as “[t]he existence of a violation need only be supported by preponderance of the
evidence.” Id. at 82. However, where the defendant admits to the violation of the terms
of probation, withdrawal of probation by the trial court is “neither arbitrary nor
capricious.” State v. Michael Emler, No. 01C01-9512-CC-00424, 1996 WL 691018, at
*2 (Tenn. Crim. App. Nov. 27, 1996).
The Defendant’s argument centers on the premise that she was punished for
aggravated statutory rape beyond the terms of her plea agreement. She contends that she
accepted responsibility for the aggravated statutory rape and “already suffered substantial
consequences from this offense,” including a felony conviction on the Defendant’s
record, a ten-year sentence, and the Defendant’s registering as a sex offender. The
Defendant goes on to argue that “there is already accountability in place and there is no
need to impose more.” The Defendant further notes her abstinence from drugs and
alcohol, her low risk to reoffend, and the lack of danger to the public if she were to return
to probation. In addition, the Defendant cites her need to care for her children and her
mother, as well as her ability to support herself and make court costs payments with
gainful employment.
The Defendant’s argument is not persuasive. The revocation of her probation
relates to the elder financial abuse cases and is not, as she represents, further punishment
for engaging in aggravated statutory rape. The trial court determined, and the Defendant
admitted, that she committed new crimes and thereby violated her probation. This court
has repeatedly 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-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10,
1999); see State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL
242351, at *2 (Tenn. Crim. App. Feb. 11, 2002). Upon finding that the Defendant had
engaged in further criminal conduct while on probation, the trial court was authorized to
revoke her probation. See Tenn. Code Ann. §§ 40-35-310, 311(e); State v. Daryl
McKinley Robinson, No. W1999-01386-CCA-R3-CD, 2000 WL 546209, at *2 (Tenn.
Crim. App. May 4, 2000) (concluding that a defendant’s admission of violating his
probation by committing a new criminal offense was, standing alone, sufficient to support
the trial court’s order revoking probation).
When considering whether the Defendant’s probation should be revoked, the trial
court found that the Defendant had “a very real behavioral health disorder with [her]
willingness to commit crimes”; that relative to the elderly victim, the Defendant did not
only steal to support her addiction, but also “to buy things”; and that the teenage statutory
rape victim was responsible for a child as a result of the Defendant’s engaging in criminal
behavior. The Defendant’s own actions on probation bely her argument that she poses no
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threat to the public—within three months of her release from prison, she engaged in
further criminal activity perpetuated against a vulnerable individual. The record supports
the court’s conclusion that the Defendant was unable or unwilling to comply with all of
the terms of her release, and the court was well within its discretion to revoke her
probation and require her to serve the balance of the sentence. The Defendant is not
entitled to relief on this basis.
II. Motions for Reduced Sentence
Tennessee Rule of Criminal Procedure 35(a) provides that a defendant may
petition the trial court for a reduction of sentence within one hundred and twenty days of
the entry of judgment or the revocation of probation. Rule 35 allows for the modification
of a sentence when appropriate in the interest of justice. State v. Hodges, 815 S.W.2d
151, 154 (Tenn. 1991). When a defendant seeks to modify a sentence entered pursuant to
a guilty plea, a motion should be granted when post-sentencing developments arise that
should be addressed in the interest of justice. State v. McDonald, 893 S.W.2d 945, 947
(Tenn. Crim. App. 1994). Alternatively, a motion for reduction of sentence may be
dismissed summarily without a hearing if no developments have arisen requiring redress
by the sentencing court. Tenn. R. Crim. P. 35(c). Our standard of review on appeal is
whether the trial court abused its discretion in denying a defendant’s motion for reduction
of sentence. State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993).
The Defendant’s motions requesting a reduced sentence cited the same facts
considered by the trial court at the probation revocation hearing. However, we note that
the Defendant’s traumatic personal history and her progress in obtaining employment,
arranging housing through DCS, and maintaining sobriety did not change the fact that
within three months after her release from prison for elder financial abuse, she committed
further criminal offenses by initiating a sexual relationship with a sixteen-year-old boy.
The Defendant alleged no additional information that would make reducing her sentence
necessary in the interest of justice. The trial court did not abuse its discretion by denying
the motions for a reduced sentence.
III. Petitions for Early Release
Relative to the Defendant’s petitions for early release, both of the Defendant’s
sentences in Jefferson and Grainger Counties were ordered to be served in the TDOC.
However, at the time the Defendant filed her petitions in January 2019, she was still
being housed in the Jefferson County Jail.
A trial court is permitted to modify the manner of service of a TDOC sentence for
a defendant who is housed locally and awaiting transfer to TDOC. Tenn. Code Ann. §
40-35-212(d)(1) (“[T]he [trial] court shall retain full jurisdiction over a defendant
sentenced to the department during the time the defendant is being housed in a local jail
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or workhouse awaiting transfer to the department. The jurisdiction shall continue until
the defendant is actually transferred to the physical custody of the department.”); see
State v. Edenfield, 299 S.W.3d 344, 346 (Tenn. Crim. App. 2009). We interpret the
Defendant’s petitions as motions to suspend sentence pursuant to Code sections 40-35-
303(e) (“Probation shall be granted, if at all, at the time of the sentencing hearing . . .
except during the time a defendant sentenced to the department of correction is being
housed in a local jail or workhouse awaiting transfer to the department as provided in §
40-35-212(d)”).
This court has previously concluded that when a defendant pled guilty pursuant to
a plea agreement including an agreed-upon sentence, a motion to suspend a TDOC
sentence pursuant to Tennessee Code Annotated section 40-35-303(e) will only be
granted upon a showing that “post-sentencing information or developments have arisen
that warrant an alteration in the interest of justice.” State v. Areanna O. Lloyd, No.
M2017-01919-CCA-R3-CD, 2018 WL 5077694, at *8 (Tenn. Crim. App. Oct. 17, 2018)
(quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (abrogated on other grounds
by State v. Patterson, 564 S.W.3d 423, 433 (Tenn. 2018)). “[A] defendant must show
that the post-sentencing information or developments were more than simply what was
expected, for example a defendant could show that the post-sentencing information or
developments were unexpected, unforeseen, or unanticipated.” Id. Our standard of
review on appeal is whether the trial court abused its discretion in denying a defendant’s
motion for suspension of sentence. Id., at *9.
In this case, the Defendant’s petitions cited a post-sentencing development, her
elderly mother’s need for at-home caregivers, as the basis for her request for early
release.2 The Defendant also noted that pursuant to her ten-year probationary sentence in
the aggravated statutory rape cases, she would be subject to the stringent conditions of
sex offender probation. The trial court denied the motion, commenting that an
unfortunate consequence of the Defendant’s criminal behavior is that her family does not
have the benefit of her presence during her mother’s illness
Although enhanced needs arise in families when an elderly family member begins
to decline, the existence of the decline and the accompanying challenges it brings are not
unexpected or unforeseen.3 Because the Defendant did not allege or prove any
unforeseen circumstances justifying the suspension of her reinstated sentences, the trial
court was within its discretion to deny her petitions. The Defendant is not entitled to
relief on this basis.
2 Although the petition references an attached letter from a family nurse practitioner, it is not present in
the record.
3 We note that according to the record, the Defendant’s mother is receiving care from other family
members.
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CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.
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D. KELLY THOMAS, JR., JUDGE
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