State of Tennessee v. Myron Jacques Fulton ( 2020 )

10/06/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
August 4, 2020 Session
STATE OF TENNESSEE v. MYRON JACQUES FULTON
Appeal from the Circuit Court for Chester County
No. 18-CR-48 Roy B. Morgan, Jr., Judge
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No. W2019-02269-CCA-R3-CD
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The defendant, Myron Jacques Fulton, appeals the order of the trial court revoking his
probation and ordering him to serve his original ten-year sentence in confinement. Upon
review of the record, we conclude the trial court did not abuse its discretion in finding the
defendant violated the terms of his probation and the imposed sentence is proper.
Accordingly, the judgment of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and CAMILLE R. MCMULLEN, J., joined.
Patrick S. Rader, Assistant Public Defender District Public Defenders Conference,
Franklin, Tennessee (on appeal), and George Morton Googe, District Public Defender and
Kandi Kelley Collins, Assistant Public Defender, Jackson, Tennessee (at trial), for the
appellant, Myron Jacques Fulton.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Jody Pickens, District Attorney General; and Chadwick R. Wood,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
After entering a best interest plea to robbery on January 31, 2019, the trial court
sentenced the defendant to ten years to be served in the Tennessee Department of
Correction. Tenn. Code Ann. § 39-11-402. The trial court suspended the defendant’s
sentence to supervised probation, imposed a $100 fine and 100 hours of community
service, and ordered the defendant to pay $874 in restitution. The terms of probation
prohibited the defendant from contacting the victim and required the defendant to obey all
laws, to report any arrests to his probation officer, to submit to random, monthly drug
screens, and to maintain full-time employment or schooling. While on probation, the
defendant was arrested on July 14, 2019, and a probation violation warrant issued on
August 7, 2019. The probation violation warrant stated the defendant was arrested for
aggravated assault in McNairy County, Tennessee. The trial court conducted a probation
revocation hearing on November 25, 2019.
At the hearing, Selmer Police Department Officer Lynn Engle testified he responded
to a domestic incident involving the defendant and his girlfriend, the victim, on July 14,
2019. Upon arrival, Officer Engle spoke with the defendant who stated he and the victim
got into a fight over a cellphone, the fight turned physical, and the two wrestled. Officer
Engle spoke to the victim and observed that her lip was swollen and had swelling and
redness on her neck. Officer Engle’s body camera captured his interactions on the scene,
and he filed a police report regarding the incident. At the close of the proof, the trial court
accredited the testimony of Officer Engle, determined the defendant violated the law on
July 14, 2019, while on probation, and revoked the same. Upon revocation, the trial court
ordered the defendant to serve the original ten-year sentence in the Tennessee Department
of Correction. This timely appeal followed.
Analysis
On appeal, the defendant argues the trial court erred in “fully” revoking his
probation by improperly relying on the defendant’s criminal history. The State disagrees,
asserting the trial court properly considered the defendant’s criminal history in revoking
probation and imposing his original sentence to be served in confinement. After our
review, we affirm the judgment of the trial court.
A trial court has statutory authority to revoke a suspended sentence upon finding
that the defendant violated the conditions of the sentence by a preponderance of the
evidence. Tenn. Code Ann. § 40-35-310, -311; see State v. Clyde Turner, No. M2012-
02405-CCA-R3-CD, 2013 WL 5436718, at *2 (Tenn. Crim. App. Sept. 27, 2013). “The
trial judge has a duty at probation revocation hearings to adduce sufficient evidence to
allow him to make an intelligent decision.” State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991)).
If a violation is found by the trial court during the probationary period, the time within
which it must act is tolled and the court can order the defendant to serve the original
sentence in full. Tenn. Code Ann. § 40-35-310; see State v. Lewis, 917 S.W.2d 251, 256
(Tenn. Crim. App. 1995). To overturn the trial court’s revocation, the defendant must show
the trial court abused its discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). “In
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order to find such an abuse, there must be no substantial evidence to support the conclusion
of the trial court that a violation of the conditions of probation has occurred.” Id. (citing
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). “Once a trial court has determined that
a violation of probation has occurred, the court has the discretionary authority to: ‘(1) order
confinement; (2) order execution of the sentence as originally entered; (3) return the
defendant to probation on appropriate modified conditions; or (4) extend the defendant’s
probationary period by up to two years.’” State v. Kennedy Fleming, No. E2017-02352-
CCA-R3-CD, 2018 WL 6787580, at *2 (Tenn. Crim. App. Dec. 26, 2018) (quoting State
v. Brandon L. Brawner, No. W2013-01144-CCA-R3-CD, 2014 WL 465743, at *2 (Tenn.
Crim. App. Feb. 4, 2014) (citations omitted). “The determination of the proper
consequences of the probation violation embodies a separate exercise of discretion.” Id.
(citing State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).
Here, the record contains sufficient evidence to support the trial court’s decision to
revoke probation and order the defendant to serve the original sentence in confinement.
On January 31, 2019, the defendant pled guilty to robbery and received a ten-year sentence
to be served on supervised probation. As a condition of probation, the defendant was
required to obey all laws. The record contains an incident report establishing the defendant
was arrested for aggravated assault on July 14, 2019, and the State presented evidence from
Officer Engle detailing the facts leading to the defendant’s arrest. Specifically, Officer
Engle stated he responded to a domestic dispute between the defendant and the assault
victim on July 14, 2019. The defendant admitted to wrestling with the victim, and the
victim suffered injuries to her neck and lip. The defendant does not challenge the
underlying probation violation, and we conclude the record contains sufficient evidence to
sustain the trial court’s revocation order. Tenn. Code Ann. § 40-35-310, -311; see Clyde
Turner, 2013 WL 5436718, at *2; Shaffer, 45 S.W.3d at 554.
The defendant instead asserts the trial court improperly relied on his criminal history
in revoking probation in full and ordering confinement. However, the record indicates the
trial court first determined the defendant violated probation before determining the proper
penalty. After finding the violation, the trial court acknowledged the defendant’s criminal
history, stating “at the time of this case before sentencing on it, by agreement, [the] [S]tate
did file enhancement of punishment, and [the defendant] does have a prior record for prior
convictions before this case for evading arrest, driving on suspended license, third offense,
domestic assault, false imprisonment and another domestic assault.” Before imposing the
original, ten-year sentence, the trial court further stated:
The [c]ourt has to take into consideration the entire record in this case, which
includes his prior criminal history. I also note that he is on this 10-year
sentence based on the robbery, and part of the file is the victim impact
statement, and I do recall this case and refreshed my recollection of the
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underlying charge of robbery and note that the victim in this case on the
robbery asked that he go to prison, and, of course, we did work out something
which didn’t involve the prison sentence being served. So he’s been given
more than one opportunity to avoid incarceration. These are serious
allegations. The testimony was quite sufficient today to make the finding I
made as to the violation. And considering all the record, which includes his
prior history, the [c]ourt finds he’s not a proper candidate to continue on
probation. [The defendant] will be revoked to serve his original sentence.
Upon our review, we find no error in the trial court’s consideration of the
defendant’s criminal history in determining the appropriate penalty for the probation
violation. As noted above, before imposing confinement, the trial court considered the
defendant’s criminal history, his underlying conviction for robbery, the robbery victim’s
impact statement, and the defendant’s amenability to continued probation. After doing so,
the trial court ordered the defendant serve his original sentence in confinement. It is evident
the trial court considered the defendant’s prior crimes within the context of the case as a
whole before deciding the defendant was no longer a proper candidate for probation.
Kennedy Fleming, 2018 WL 6787580, at *3 (“the trial court may review a defendant’s past
criminal history in order to determine, based on a totality of the circumstances, ‘whether
the beneficial aspects of probation [are] being served’ and whether the defendant is
amenable to continued probation”) (quoting State v. Marcus Nigel Davis, No. E2007-
02882-CCA-R3-CD, 2008 WL 4682238, at *5 (Tenn. Crim. App. Oct. 23, 2008)). Again,
once a violation of probation is found, the trial court can order the defendant to serve the
original sentence. Tenn. Code Ann. § 40-35-310; see Lewis, 917 S.W.2d at 256.
Accordingly, the trial court acted within its discretion in ordering the defendant to serve
the original sentence of ten years in the Tennessee Department of Correction. The
defendant is not entitled to relief.
Conclusion
Based upon the foregoing authorities and reasoning, we affirm the judgment of the
trial court revoking the defendant’s probation and ordering him to serve the original
sentence in confinement.
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J. ROSS DYER, JUDGE
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