State of Tennessee v. Jeremy Lieutenant Fuqua

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs on April 26, 2011
STATE OF TENNESSEE v. JEREMY LIEUTENANT FUQUA
Direct Appeal from the Criminal Court for Hamilton County
No. 261746 & 261820 Rebecca J. Stern, Judge
No. E2010-02148-CCA-R3-CD - Filed November 22, 2011
In May, 2007, Defendant, Jeremy Lieutenant Fuqua, pled guilty to various offenses,
including three counts of aggravated burglary, a Class C felony, and one count of Class C
felony theft. He received a sentence of four years for each conviction of aggravated burglary
and a sentence of three years for the theft conviction, with all sentences to be served
consecutively with each other for an effective sentence of fifteen years. Defendant was given
the opportunity to serve the entire sentence on probation. Subsequently, there were three
separate probation violation proceedings, but ultimately none resulted in revocation of the
entire probation sentence. The fourth probation violation proceeding, which is the subject
of this appeal, was filed based upon new criminal charges, failure to report arrests, and
various technical violations. After a hearing the trial court revoked Defendant’s probation
and ordered the entire effective sentence of fifteen years to be served by incarceration. On
appeal, Defendant does not challenge the findings that he violated his probation; he does
insist that he should not have been ordered to serve his entire sentence. We affirm the
judgments of the trial court in each conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS, J., joined. D AVID H. W ELLES, S P.J., not participating.
Ardena J. Garth, District Public Defender; Richard Kenneth Mabee, Assistant Public
Defender; and Blake Murchison, Assistant Public Defender, Chattanooga, Tennessee, for the
appellant, Jeremy Lieutenant Fuqua.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Brian Finlay, Assistant District
Attorney General, for the appellee, the State of Tennessee.
OPINION
Background
Defendant’s conduct on various occasions pertinent to this case (his fourth probation
violation proceeding) caused five separate probation violation reports to be issued. Our
review of the record shows that the most egregious of the violations occurred while
Defendant was in custody pending the hearing of this probation violation warrant. According
to the violation report,
On or about 2/24/10, [Defendant] was arrested for [a]ggravated [a]ssault.
According to the affidavit of complaint compiled by CCA Investigator
Michele Johnson, on 2/24/10 inmate [Defendant] assaulted Correctional
Officer Robert Woods. Officer Woods was performing his duties at the
Silverdale Correctional Facility. Officer Woods was beaten unconscious
and required immediate outside medical treatment via ambulance.
Defendant’s probation officer, Jennifer Laferry, was the only witness who testified
at the probation violation hearing. Including some convictions which occurred early in his
probation and did not result in revocation, Defendant had been convicted of the following
offenses while on probation: public intoxication, criminal trespassing, selling alcohol to a
minor, vandalism, theft, assault, and aggravated assault. The assault conviction resulted from
the incident with the correctional officer, and the aggravated assault conviction, which was
from a guilty plea the week prior to his revocation hearing, was after Defendant “beat
somebody in the head with some kind of blunt object” in Bledsoe County. Defendant was
in Bledsoe County without the permission of his probation officer.
Analysis
If a trial court finds that a defendant “has violated the conditions of probation and
suspension by a preponderance of the evidence, the trial judge shall have the right . . . to
revoke the probation and suspension of the sentence and [c]ause the defendant to commence
the execution of the judgment as originally entered, or otherwise, in accordance with § 40-
35-310.” Tenn. Code Ann. § 40-35-311(e). The revocation of probation lies within the
sound discretion of the trial court. Tenn. Code Ann. § 40-35-310; State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991); State v. Subblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App.
1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). The trial judge
must, however, adduce sufficient evidence during the probation revocation hearing to allow
him to her to make an intelligent decision. See Mitchell, 810 S.W.2d at 735.
-2-
When probation is revoked, “the original judgment so rendered by the trial judge shall
be in full force and effect from the date of the revocation of the suspension.” Tenn. Code
Ann. § 40-35-310. Thus, the trial court retains the discretionary authority to order the
defendant to serve the original sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn.
Crim. App. 1995). As this Court has repeatedly noted, a trial court has but two options when
a probation violation has been found by a preponderance of the evidence: (1) cause execution
of the original judgment as it was originally entered, or (2) modify the defendant’s conditions
of supervision, including extending the defendant’s probationary period for up to two years.
See Tenn. Code Ann. §§ 40-35-308, 310, 311; State v. Bowling, 958 S.W.2d 362, 363 (Tenn.
Crim. App. 1997).
When a probation revocation is challenged, the appellate courts have a limited scope
of review. For an appellate court to be warranted in finding that a trial judge abused his or
her discretion by revoking probation, it must be established that the record contains no
substantial evidence to support the trial judge’s conclusion that a probation violation
occurred and that because of the violation, probation should be revoked. See Harkins, 811
S.W.2d at 82; Stubble field, 953 S.W.2d at 226. The proof of a probation violation need not
be established beyond a reasonable doubt, but it is sufficient if it allows the trial court to
make a conscientious and intelligent judgment. Harkins, 811 S.W.2d at 82 (citing State v.
Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)).
Defendant’s argument on appeal is limited. He asserts that this Court should reverse
the trial court and order “some other remedy other [than] full service of the sentence in the
[Tennessee Department of Correction].” The State disagrees. We agree with the State.
The following transpired at the conclusion of the revocation hearing:
THE COURT: Is the defendant offering any proof?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: Anybody want to be heard further? I mean, I
know you’re asking to just have him back on
probation, but.
[DEFENSE COUNSEL]: Well, Your Honor, this is a very lengthy term
that [Defendant] is facing. It’s a 15-year –
THE COURT: And he has a very lengthy record, too.
-3-
[DEFENSE COUNSEL]: And I understand that, Your Honor, and
[Defendant] understands that as well. That
aggravated assault that was mentioned was
actually just pled last week. It was a three-year
sentence which was going to run consecutive
to whatever happens here today. [Defendant]
has certainly had some opportunity before you,
but given the length of time that he will be
serving, he would request the Court to some
lenience as far as what would be required of
him to serve. He does expect that he will have
to serve something, but.
THE COURT: Well, I think that’s why he kept getting the
breaks that he didn’t take advantage of because
no one wanted to make him go serve that much
time. I’m sure that’s why, but time’s up.
Sorry. He’s blown it this time. He’s been
given so many opportunities it’s unbelievable.
Eight new convictions. Some of them for
assaults. Going out of town to Bledsoe County
without permission, not paying his restitution,
not being full time employed. Petition to
revoke is sustained. His sentence is ordered
into execution. He will be given credit for
time served.
Our review of the record leads us to conclude that the trial court’s ruling is soundly
based. Defendant is not entitled to relief in this appeal.
CONCLUSION
The trial court’s judgments revoking probation are affirmed.
_________________________________
THOMAS T. WOODALL, JUDGE
-4-