State of Tennessee v. John Frank Mullins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 1, 2015
STATE OF TENNESSEE v. JOHN FRANK MULLINS
Appeal from the Circuit Court for Dyer County
No. 10CR393 R. Lee Moore, Jr., Judge
No. W2015-00916-CCA-R3-CD - Filed September 28, 2015
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Defendant, John Frank Mullins, pled guilty to theft of property valued over $1000 and
was sentenced to eight years on Community Corrections. After a hearing, the trial court
found that Defendant violated the terms of his Community Corrections sentence, revoked
the Community Corrections sentence, and ordered Defendant to serve the remainder of
his sentence in incarceration. On appeal, we affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR., and ROGER A. PAGE, JJ., joined.
James E. Lanier, District Public Defender; Sean P. Day, Assistant Public Defender (on
appeal); and Timothy Boxx, Assistant Public Defender (at hearing), for the appellant,
John Frank Mullins.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; C. Phillip Bivens, District Attorney General; and Karen Burns,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural Background
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This is Defendant’s appeal from the Dyer County Circuit Court’s revocation of his
Community Corrections sentence and order that he serve the remainder of his sentence in
incarceration.
On August 23, 2011, Defendant pled guilty to one count of theft of property
valued over $1000. On October 25, 2011, the trial court imposed a sentence of eight
years to be served on Community Corrections. On June 7, 2012, a Community
Corrections violation report was filed against Defendant, alleging that he violated the
rules of Community Corrections. On April 1, 2014, the violation report was
supplemented to add an additional allegation.
The trial court held a violation hearing on May 19, 2014. Westate Community
Corrections Officer Chuck Wade testified that he had supervised Defendant since
October 2010.1 Officer Wade testified that Defendant did not show up for regularly
scheduled meetings on May 7, May 14, and May 21, 2012. Defendant did not provide an
excuse for missing the meetings. On May 18, Officer Wade went by Defendant’s house,
and he was not home. On May 20, Officer Wade spoke to Defendant’s son who said that
Defendant had left and that he did not know where Defendant was. Defendant did not
have permission to leave his home or to move and did not provide a forwarding address.
Officer Wade did not have any contact with Defendant after May 2012. Additionally,
Defendant was arrested for theft of property valued under $500 on January 28, 2014.
That charge was still pending at the time of the hearing.
Defendant testified that he had been recently diagnosed with “impulse control,
[obsessive compulsive disorder] traits, bipolar disorder, general anxiety, and depression.”
He was prescribed Prozac in August 2013 to address these issues. Defendant testified
that he stays at home, only going to the Veteran Administration’s Hospital for treatment.
However, Defendant did not report to his Community Corrections officer after he began
receiving the medication or after his arrest on the theft charge. As to the theft charge,
Defendant explained that he cashed a check that had been written to him but that he never
received a certified letter stating that it was a bad check. He denied that he wrote the
check.
The trial court found that Defendant had an extensive criminal history, including
twelve prior Class D or E felonies and several convictions for forgery, theft, and
receiving stolen property. The trial court found that Defendant stopped reporting to
Community Corrections and that he absconded. The trial court revoked Defendant’s
Community Corrections sentence and ordered that he serve the remainder of his sentence
in incarceration. Defendant now appeals.
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The original Judgment indicates the sentence was imposed on October 25, 2011.
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Analysis
Like probation, Community Corrections is a “community based alternative[] to
incarceration” available to certain “nonviolent felony offenders.” T.C.A. § 40-36-103;
see State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The same principles that apply in
the revocation of probation also apply to the revocation of Community Corrections.
Harkins, 811 S.W.2d at 83. The decision to revoke a Community Corrections sentence
rests within the sound discretion of the trial court and will only be overturned upon a
showing of an abuse of discretion. Id.; State v. Beard, 189 S.W.3d 730, 735 (Tenn. Crim.
App. 2005). 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).
The trial court is only required to find that a violation of one of the terms of a
Community Corrections sentence occurred by a preponderance of the evidence. T.C.A. §
40-35-311(e). If the trial court determines that a violation has occurred, the court has the
authority to revoke the Community Corrections sentence and 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, less any
time actually served in any community-based alternative to incarceration.” T.C.A. § 40-
36-106(e).
The record in this case contains substantial evidence to support the conclusion of
the trial judge that Defendant violated the terms of his Community Corrections sentence.
Defendant’s Community Corrections officer, Officer Wade, testified that Defendant
missed three scheduled meetings. Additionally, Defendant was not home when Officer
Wade went to check on him, and Defendant’s son did not know where he was.
Defendant did not have permission to leave or to move and provided no forwarding
address. Officer Wade had no contact with Defendant for nearly two years, during which
time Defendant’s whereabouts were unknown. Defendant admitted that he did not report
to his Community Corrections officer even after he began treatment for the various
mental illnesses that supposedly caused him to abscond. Finally, Defendant was arrested
for theft and did not report his arrest to Officer Wade. The trial court did not abuse its
discretion in revoking Defendant’s Community Corrections sentence and ordering the
service of the remainder of his sentence in incarceration.
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Conclusion
Based on the foregoing, we affirm the decision of the trial court.
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TIMOTHY L. EASTER, JUDGE
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