State v. Jimmy D. Johnson ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
December 29, 1999
NOVEMBER 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9903-CC-00102
)
) Blount County
v. )
) Honorable D. Kelly Thomas, Jr., Judge
)
JIMMY D. JOHNSON, ) (Probation revocation)
)
Appellant. )
For the Appellant: For the Appellee:
Stacey D. Nordquist Paul G. Summers
Assistant District Public Defender Attorney General of Tennessee
419 High Street and
Maryville, TN 37804 Elizabeth B. Marney
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243
Michael L. Flynn
District Attorney General
and
Kirk E. Andrews
Assistant District Attorney General
363 Court Street
Maryville, TN 37804-5906
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Jimmy D. Johnson, appeals as of right from the Blount
County Circuit Court’s revocation of his probation. The defendant pled guilty to incest,
a Class C felony, and was sentenced as a Range I, standard offender to six years
confinement in the Department of Correction. The defendant was ordered to serve one
hundred eighty days in the Blount County Jail with the remainder to be served on
supervised probation. He contends that the trial court erred by revoking his probation
and sentencing him to incarceration. We affirm the judgment of the trial court.
The defendant was originally indicted for rape but pled guilty to incest. He
was originally sentenced to one year in the Blount County Jail followed by four years in
community corrections. On December 31, 1996, a warrant was issued for a violation of
community corrections, alleging that the defendant failed to meet with his community
corrections officer, used alcohol in violation of his community corrections agreement,
failed to attend sex offender group therapy, failed to pay fines and court costs, and
failed to pay supervision fines. At the revocation hearing on March 21, 1997, the trial
court amended the judgment to five years in the Department of Correction and released
the defendant on appeal bond, conditioned upon the defendant’s meeting the
requirements of the community corrections program. On July 26, 1997, another warrant
for a violation was issued.
This court vacated and remanded the defendant’s original conviction in
order for the indictment to be amended to reflect a charge of incest. State v. Jimmy D.
Johnson, No. 03C01-9602-CC-00062, Blount County (Tenn. Crim. App. Oct. 16, 1997).
The indictment was amended, and the defendant pled guilty to the amended charge of
incest. The trial court sentenced him to six years in the Department of Correction, with
one hundred eighty days to be served in jail and the remainder on probation.
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On October 5, 1998, a warrant for violation of probation was issued,
alleging various failures by the defendant to follow probation requirements. At the
revocation hearing, the defendant’s probation officer, Mike Lane, testified that the
defendant’s probation began on November 4, 1997. He testified that the defendant
abided by the terms of his probation until September 1998 when the defendant failed to
report on three different occasions. Mr. Lane testified that the defendant also failed to
report to his sex offender counselor, wrote a worthless check for twenty-five dollars, and
provided deceptive answers regarding his participation in sex counseling during a
polygraph examination.
Mr. Lane testified that the last contact he had with the defendant was on
September 17, 1998, when the defendant called to say that he had missed his
appointments because he had been drinking and having “women problems.” Mr. Lane
testified that he instructed the defendant to report on September 24 in order for Mr.
Lane to help him with his problems but that the defendant did not keep the
appointment. Mr. Lane testified that the defendant missed his follow-up appointment
on November 30, 1998. He said he then learned that the defendant had failed to report
a public intoxication charge from August 1998, and he filed a violation report.
The defendant testified that his main problem was drinking and that he
stopped going to sex offender counseling because of his drinking. At the conclusion of
the hearing, the trial court summarized the defendant’s lengthy history of prior offenses,
including numerous public intoxication and driving under the influence convictions. The
trial court revoked the defendant’s probation and ordered that the defendant spend the
remainder of his sentence in the custody of the Department of Correction, finding that:
Doing the best that you can do fighting alcoholism, you know,
I mean, that’s – the best a person can do is the best a person
can do, and I’m not being critical of that. But that’s not the only
consideration. There are lots of alcoholics, Mr. Johnson, that
don’t commit incest and that don’t have six or seven DUI’s.
You don’t have to break the law to be an alcoholic and even be
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drinking. Some people do, some people don’t. And the bad
thing about that is, it’s public safety and your safety. . . . .
What I’m saying is that I can’t take the risk anymore because
of this repeated behavior and how dangerous it is.
The defendant contends that the trial court erred by revoking his probation
and sentencing him to incarceration. The state contends that the trial court properly
revoked the defendant’s probation and sentenced him to incarceration.
The decision to revoke probation is within the discretion of the trial court.
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). Upon revoking probation, the trial
court has the discretion to order the original sentence to be served. See Tenn. Code
Ann. § 40-35-310, -311(d). An abuse of discretion may be found only if the record
contains no substantial evidence to support the conclusion of the trial court. See State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
Although the defendant contends that the trial court erred by revoking his
probation, he concedes in his brief that sufficient proof was presented at the revocation
hearing to establish that he violated the terms of his probation by drinking and failing to
complete sex offender counseling. Furthermore, he has not demonstrated that the trial
court abused its discretion by ordering him to serve his sentence in incarceration. The
defendant’s lengthy criminal history, his inability to abide by the terms of an alternative
sentence, and his admitted alcohol abuse support the trial court’s decision.
In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.
________________________________
Joseph M. Tipton, Judge
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CONCUR:
_____________________________
Jerry L. Smith, Judge
_____________________________
Thomas T. Woodall, Judge
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