State of Tennessee v. David Scott Whitson, Jr. ( 2020 )

10/30/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 29, 2020
STATE OF TENNESSEE v. DAVID SCOTT WHITSON, JR.
Appeal from the Criminal Court for Sullivan County
No. S64806 James F. Goodwin, Jr., Judge
___________________________________
No. E2019-02227-CCA-R3-CD
___________________________________
Defendant, David Scott Whitson, Jr., appeals from the trial court’s revocation of his
Community Corrections sentence in May 2019. Defendant argues that the trial court
abused its discretion when it required Defendant to serve his sentence. After conducting
a thorough review of the record, we affirm the judgment of the trial court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Andrew J. Gibbons, Public Defender and William A. Kennedy, Assistant Public
Defender, for the appellant, David Scott Whitson, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Barry P. Staubus, District Attorney General; and William
Harper, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural Background
On May 25, 2017, Defendant pled nolo contendere to one count of solicitation of a
minor and two counts of contributing to the delinquency of a minor in case number
S64806. The remaining count was dismissed. Defendant received an effective sentence
of eight years to be served on Community Corrections.
On June 21, 2019, a violation of probation warrant was filed against Defendant.1
A probation violation hearing was held on December 9, 2019.
Joshua Neece supervised sex offenders for the Tennessee Department of
Correction and was assigned to supervise Defendant. Officer Neece went over all the
rules of Community Corrections with Defendant, and Defendant signed documents
acknowledging the rules. Officer Neece testified that sex offenders must wear a GPS
monitoring device. He explained that if a GPS device were tampered with, he would
receive a phone call. On May 22, 2019, Officer Neece received a phone call regarding
Defendant’s GPS device. Officer Neece tracked the GPS device to its last known
location and discovered that it had been cut off and was lying on the roadside. Officer
Neece confirmed that device had been assigned to Defendant. Officer Neece stated that
Defendant failed to report as instructed on May 21, 2019. Officer Neece knew that
Defendant suffered from mental health issues but had not noticed anything “drastic”
about Defendant’s mental health when they met.
Teresa Hall, Defendant’s grandmother, testified that she was driving Defendant to
the hospital to get him admitted to a mental health facility when Defendant “took off out
of [her] car.” Ms. Hall called Officer Neece and told him she needed his help. She stated
that Defendant had been diagnosed with bipolar disorder, schizophrenia, and PTSD. She
stated that Defendant had been on medication, and it was her goal to get him into a
mental health program where he could receive the help he needed. On cross-
examination, Ms. Hall acknowledged that Defendant had previously absconded for six
months while on Community Corrections.
Defendant did not testify at his revocation hearing.
The trial court noted that Defendant had cases pending in Virginia. Because of
those cases if the trial court released Defendant, Defendant would be taken to Virginia.
The trial court found that Defendant had removed his GPS device and had failed to report
as instructed. The trial court noted that this is the second time that Defendant had
absconded while on Community Corrections. The trial court was concerned about
Defendant’s mental health but had no resources available with which to address
Defendant’s mental health. The trial court ordered Defendant to serve the eight-year
sentence in confinement. It is from that revocation that Defendant now appeals.
Analysis
1
The violation of probation report and warrant also sought revocation of probation in cases
S65818, S66410 and S66767. The trial court considered those in the same hearing, but reinstated
probation in those cases with the condition that Defendant seek mental health treatment.
-2-
Defendant argues that trial court abused its discretion by revoking Defendant’s
Community Corrections and requiring him to serve his eight-year sentence in
confinement. The State argues that the trial court did not abuse its discretion. We agree
with the State.
A trial court may revoke a defendant’s probation upon its finding by a
preponderance of the evidence that the defendant violated a condition of the sentence.
T.C.A. § 40-35-311(e) (2019) (prescribing the procedure for probation revocation
proceedings). Given the similar nature of a sentence of community corrections and a
sentence of probation, the same principles are applicable in deciding whether the
revocation of a community corrections sentence is proper. State v. Harkins, 811 S.W.2d
79, 83 (Tenn. 1991). Our supreme court has concluded that a trial court’s decision to
revoke a defendant’s community corrections sentence “will not be disturbed on appeal
unless . . . there has been an abuse of discretion.” Id. at 82 (citing State v. Williamson,
619 S.W.2d 145, 146 (Tenn. Crim. App. 1981)). An abuse of discretion has been
established when the “record contains no substantial evidence to support the conclusion
of the trial judge that a violation of the conditions of probation has occurred.” State v.
Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980); see State v. Shaffer, 45 S.W.3d
553, 554 (Tenn. 2001); State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). A finding of
abuse of discretion “‘reflects that the trial court’s logic and reasoning was improper when
viewed in light of the factual circumstances and relevant legal principles involved in a
particular case.’” Shaffer, 45 S.W.3d at 555 (quoting State v. Moore, 6 S.W.3d 235, 242
(Tenn. 1999)).
When a trial court finds by a preponderance of the evidence that a defendant has
violated the conditions of probation, the court “shall have the right . . . to revoke the
probation.” T.C.A. § 40-35-311(e)(1) (2019). “In probation revocation hearings, the
credibility of witnesses is for the determination of the trial judge.” Carver v. State, 570
S.W.2d 872, 875 (Tenn. Crim. App. 1978) (citing Bledsoe v. State, 387 S.W.2d 811, 814
(Tenn. 1965)). When a defendant’s community corrections sentence is revoked, 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.” T.C.A. § 40-36-106(e)(4) (2019).
Here, Officer Neece testified that Defendant’s GPS was cut off and was found
lying beside the road. Officer Neece also testified that Defendant failed to report as
instructed. As a result, the trial court found that Defendant had violated the terms of his
Community Corrections. The trial court further noted that Defendant had absconded
twice from Community Corrections. The evidence does not preponderate against the
-3-
finding of the trial court. Therefore, the trial court did not abuse his discretion.
Defendant is not entitled to relief.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
____________________________
TIMOTHY L. EASTER, JUDGE
-4-