State of Tennessee v. Michael Desean Breland

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 24, 2011
STATE OF TENNESSEE v. MICHAEL DESEAN BRELAND
Direct Appeal from the Criminal Court for Davidson County
No. 2008-C-2769 Steve Dozier, Judge
No. M2010-02098-CCA-R3-CD - Filed July 13, 2011
The Defendant, Michael Desean Breland, pled guilty to two counts of theft of property, and
the trial court sentenced him to two concurrent eight-year sentences to be served on
probation. Subsequently, the trial court twice found the Defendant was in violation of the
terms of his probation, and it revoked the Defendant’s probation and ordered him to serve
the remainder of his sentence in confinement. On appeal, the Defendant contends the trial
court erred when it placed his original sentence into effect rather than allow him to return to
probation with the condition that he complete an alcohol abuse treatment program. After a
thorough review of the record and applicable law, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and
D. K ELLY T HOMAS, J R., JJ., joined.
William E. Griffith, Nashville, Tennessee, for the Appellant, Michael Desean Breland.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and J. Wesley King,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
This case arises form the Defendant’s theft of a utility trailer and a motor vehicle in
Davidson County in February 2008. In September 2009, the Defendant pled guilty to two
counts of theft of property valued above $1000. He was sentenced to two concurrent eight-
year sentences to be served on intensive probation and ordered to pay restitution. In October
2009, the Defendant’s probation officer filed an affidavit alleging the Defendant violated his
probation by failing to report and, as a result, the trial court issued a revocation warrant for
the Defendant. On November 9, 2009, the trial court sustained the revocation warrant,
sentenced the Defendant to time served, ordered that a SCRAM 1 device be applied to the
Defendant for ninety days, and returned the Defendant to probation, with the condition that
the Defendant complete fifteen hours of public service per week until he obtained
employment.
After ninety days, the SCRAM device was removed. In May 2010, the Defendant’s
probation officer filed a second affidavit alleging the Defendant violated his probation by
being arrested for driving under the influence and for violation of the Habitual Motor Vehicle
Offender Act, by failing to report his arrest to the probation officer, and by failing to obtain
employment. The trial court issued a second revocation warrant for the Defendant based on
this affidavit. At a revocation hearing on July 23, 2010, Officer Robert Johnson of the
Metropolitan Nashville Police Department testified that he stopped the Defendant’s vehicle
after observing it operating without illuminated headlights after dark. When the officer
approached the Defendant’s vehicle, he noticed a strong odor of alcohol, and the Defendant
appeared intoxicated. At the officer’s request, the Defendant submitted to a breath test,
which indicated the Defendant’s blood-alcohol level was 0.176. Officer Johnson discovered
that the Defendant was an habitual offender within the meaning of the Habitual Motor
Vehicle Offender Act (“HMVO Act”). The officer arrested the Defendant for driving under
the influence and for violating the HMVO Act.
Donna Cherry, the Defendant’s probation officer, testified that the Defendant violated
the terms of his probation in several respects: he was arrested for DUI and failed to report
this arrest; he failed to provide her with proof of employment; he used an intoxicant, as
evidenced by his arrest for DUI; and he failed to complete fifteen hours of public service as
he had been ordered to do as a condition of his probation.
At defense counsel’s request, the trial court continued the matter until August, 2010.
On August 12, 2010, the parties reconvened and defense counsel informed the court that the
Defendant had been screened and accepted into a program at The Elam Center, a twenty-
eight day inpatient alcohol abuse treatment facility. Defense counsel asked the court to
continue the Defendant’s revocation matter, allow the Defendant to complete this alcohol
abuse program, and reconvene in mid-October 2010 after the Defendant’s completion of the
alcohol abuse program to determine whether to revoke the Defendant’s probation. The trial
1
A SCRAM device is a tool whereby a court or law enforcement agency may monitor an
individual’s blood-alcohol content. The device, which is worn around the ankle, takes samples of the
individual’s perspiration every thirty minutes and reports the individual’s blood-alcohol content back to the
supervising agency.
2
court took the matter under advisement and issued a written order on August 23, 2010,
revoking the Defendant’s probation and placing into effect his original sentence. In its order,
the trial court found that, based upon Officer Johnson and Cherry’s testimony, the Defendant
violated the terms of his probation. Stating that it had a duty to “protect the health and safety
of the citizens of Tennessee,” the trial court found that the Defendant’s lengthy record and
his failure to comply with the terms of his probation required his original sentence to be
placed into effect. It is from this judgment that the Defendant now appeals.
II. Analysis
The Defendant contends the trial court erred when it revoked his probation and
ordered him to serve the remainder of his sentence in confinement. The Defendant argues
that his history of alcohol abuse indicates that only treatment, rather than incarceration, will
remedy his alcohol addiction. He contends that the trial court abused its discretion when it
reinstated his sentence rather than return him to probation in order to complete alcohol abuse
treatment at The Elam Center. The State responds that the trial court did not abuse its
discretion when it reinstated the Defendant’s original sentence because the record established
that the Defendant violated his probation in three respects. It also argues that the trial court’s
citation to the importance of preserving public safety supports the trial court’s order revoking
probation.
When a trial court determines by a preponderance of the evidence that a probationer
has violated the conditions of his or her probation, the trial court has the authority to revoke
probation. T.C.A. § 40-35-311(e) (2009). Upon finding that the defendant has violated the
conditions of probation, the trial court may revoke the probation and either: (1) order
incarceration; (2) order the original probationary period to commence anew; or (3) extend
the remaining probationary period for up to two additional years. State v. Hunter, 1 S.W.3d
643, 644 (Tenn. 1999); see T.C.A. §§ 40-35-308, -310, -311 (2009). The defendant has the
right to appeal the revocation of his probation and entry of his original sentence. T.C.A. §
40-35-311(e). After finding a violation, the trial court is vested with the statutory authority
to “revoke the probation and suspension of sentence and cause the defendant to commence
the execution of the judgment as originally entered . . . .” Id.; accord Hunter, 1 S.W.3d at
646 (holding that the trial court retains the discretionary authority to order the defendant to
serve his or her original sentence in confinement). Furthermore, 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 such suspension . . . .” T.C.A. § 40-35-310 (2006).
The decision to revoke probation is in the sound discretion of the trial judge. State
v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); State v. Mitchell, 810 S.W.2d
733, 735 (Tenn. Crim. App. 1991). This Court will uphold a trial court’s judgment to revoke
3
probation unless the trial court abused its discretion. State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991). To find an abuse of discretion in a probation revocation case, the record must
be void of any substantial evidence that would support the trial court’s decision that a
violation of the conditions of probation occurred. Id.; State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
In this case, the record supports the trial court’s finding that the Defendant violated
the terms of his probation. First, Officer Johnson testified that he arrested the Defendant for
DUI and for violation of the HMVO Act. The Defendant’s probation officer, Officer Cherry,
testified that the Defendant did not report this arrest to her. Thus, the record establishes that
the Defendant violated the terms of his probation requiring him to abstain from intoxicants,
to abide by the law, and to report any arrests to his probation officer. Second, Officer Cherry
testified that the Defendant failed to provide her with proof of employment or with proof that
he had completed fifteen hours per week of public service. The record therefore establishes
that the Defendant failed to comply with the terms of his probation requiring him to either
obtain employment or perform fifteen hours per week of public service. Based on the
foregoing, we conclude that the record contains “substantial evidence” that the Petitioner
violated the terms of his probation. See Harkins, 811 S.W.2d at 82.
Given that a trial court only abuses his discretion in revoking probation where the
record contains no evidence that a defendant violated his probation, the Defendant’s violation
of his probation alone justifies the trial court’s exercise of discretion in this case. We note,
however, that the Defendant had already violated the terms of his probation in this case once
before the present revocation proceedings. This previous violation also supports the trial
court’s revocation of the Defendant’s probation. Further, we note that the Defendant’s non-
compliance was not limited to the provisions pertaining to the use of intoxicants. The
Defendant also failed to obtain employment. Although the Defendant’s history of alcohol
abuse is unfortunate and tragic, the Defendant’s continual failures to comply with the terms
of his probation indicate that confinement was necessary in this case. As such, we conclude
that the trial court’s revocation of the Defendant’s probation was not an abuse of discretion.
See Kendrick, 178 S.W.3d at 738. The Defendant is not entitled to relief.
III. Conclusion
Based on the foregoing reasoning and authorities, we conclude the trial court properly
revoked the Defendant’s probation and placed into effect his original sentence. As such, we
affirm the judgment of the trial court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
4