State of Tennessee v. Teresa A. Junior

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 3, 2013
STATE OF TENNESSEE v. TERESA A. JUNIOR
Appeal from the Circuit Court for Dyer County
Nos. 10CR32 & 10CR33 R. Lee Moore, Judge
No. W2013-00784-CCA-R3-CD - Filed January 7, 2014
The defendant’s probation was revoked after a full evidentiary hearing, and she was ordered
to serve her sentence in incarceration. On appeal, the defendant claims that the trial court
abused its discretion by revoking her probation. Upon review, we find no abuse of discretion
in the trial court’s decision, and we affirm the trial court’s judgment accordingly.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J EFFREY S. B IVINS, JJ., joined.
James E. Lanier, District Public Defender; Christy Cooper, Assistant District Public
Defender, for the appellant, Teresa A. Junior.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; C.
Phillip Bivens, District Attorney General; and Karen W. Burns, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS AND PROCEDURAL HISTORY
On February 8, 2010, the defendant was indicted on one count of aggravated burglary
in violation of Tennessee Code Annotated section 39-14-403, a Class C felony, one count of
robbery in violation of Tennessee Code Annotated section 39-13-401, a Class C felony, and
one count of theft of property with a value of more than $500 in violation of Tennessee Code
Annotated section 39-14-103, a Class E felony. On September 22, 2010, the defendant pled
guilty to these charges and was sentenced as a Range I, standard offender to concurrent terms
of four years for the Class C felonies and two years for the Class E felony, resulting in a total
effective sentence of four years. After serving part of her sentence and completing a
rehabilitation program, on August 9, 2011, the remainder of the defendant’s sentence was
suspended, and she was placed on supervised probation.
On September 11, 2012, the State filed a violation of probation warrant. The warrant
alleged that the defendant had violated her probation by absconding, failing to report to her
probation officer, and failing to provide proof of payment of court costs. The State
subsequently filed an additional violation of probation report alleging that the defendant had
been arrested for driving under the influence, possession of a Schedule IV controlled
substance, possession of drug paraphernalia, violation of implied consent law, and violation
of open container law.
On February 11-12, 2013, the trial court held a hearing concerning the State’s
revocation request. At this hearing, Ms. Rebecca Cushion, the defendant’s probation officer,
testified that she received the defendant’s case on August 9, 2011, when the defendant’s
sentence was suspended after she completed rehabilitation. She testified that on the day the
defendant was placed on probation, she requested that her probation be transferred to
Mississippi. This transfer was granted. On August 14, 2012, Ms. Cushion received notice
from the Mississippi probation officer that the defendant had reported on September 12,
2011, but she had not reported since that day. Ms. Cushion testified that she filed a first
report of violation on September 11, 2012, alleging that the defendant failed to report to her
probation officer in Mississippi.
Ms. Cushion testified that she filed a follow-up report on January 23, 2013, listing
four additional violations. She testified that the defendant was arrested on December 31,
2012, in Crockett County for DUI, possession of a Schedule IV controlled substance,
possession of drug paraphernalia, violation of implied consent, and violation of open
container law. She testified that the defendant’s case was still pending in the General
Sessions Court for Crockett County. Ms. Cushion testified that the defendant also violated
the terms of her probation by failing to notify her probation officer of her new arrest and by
using intoxicants. Ms. Cushion testified that since she had filed the notices of violation, the
defendant had called her twice in order to set up appointments for reporting purposes but had
not shown up for either appointment.
On cross-examination, Ms. Cushion acknowledged that she had not spoken directly
with the defendant’s probation officer in Mississippi. She explained that she was not allowed
to have direct contact with the probation officers in other states and that all information was
exchanged via computer program.
The defendant testified that she was presently living in Dyer County with her mother,
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for whom she was caring following hip replacement surgery. The defendant testified that she
had heard Ms. Cushion’s testimony and agreed that she had been transferred to Mississippi
for supervision when she first went on probation. She testified that her probation officer in
Mississippi was a Mr. Dunston. She testified that she met with Mr. Dunston once a month
until her husband died on August 10, 2011. She testified that Mr. Dunston gave her
“traveling papers to come back home,” and that she had been “ stuck here in a time warp”
ever since. She testified that she became “stranded” when she returned to Tennessee and
was unable to return to Mississippi.
The defendant acknowledged that she had “neglected [her] responsibility because
[she] got caught up in [her] own pity.” She testified that she essentially “just gave up” when
her husband and sister died. She testified that she had a nervous breakdown, was
hospitalized over the summer, and “just blacked out for a while.” The defendant
acknowledged that she had not been completely compliant with the terms of her probation
during this time. The defendant testified that she did not call her probation officer and notify
her of the situation because she was embarrassed. She testified that she believed that she had
not done anything wrong.
After receiving this evidence, the trial court stated that it was inclined to find the
defendant in violation based on her failure to report and her new arrest. However, the court
adjourned the hearing to give the defendant time to retrieve her “ traveling papers” from her
mother’s dresser and submit them to the court. The following day, after reviewing those
papers, the trial court revoked the defendant’s probation “in full.” A timely notice of appeal
was filed. Satisfied the matter is properly before us, we proceed to consider the defendant’s
claim.
ANALYSIS
The defendant claims that the trial court erred by revoking the defendant’s probation
in full. A trial court may revoke an alternative sentence if it finds by a preponderance of the
evidence that the defendant has violated a condition of his or her probation. See T.C.A. §§
40-35-310, -311(e) (2012); State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). Probation
revocation rests within the sound discretion of the trial court. State v. Kendrick, 178 S.W.3d
734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.
Crim. App. 1991)). A reviewing court will not overturn a trial court’s revocation of a
defendant’s probation absent an abuse of discretion. See Shaffer, 45 S.W.3d at 554. “In
order to find such an abuse, there must be no substantial evidence to support the conclusion
of the trial court that a violation of the conditions of probation has occurred.” Id. “The proof
of a probation violation need not be established beyond a reasonable doubt, but it is sufficient
if it allows the trial judge to make a conscientious and intelligent judgment.” State v.
Harkins, 811 S.W.3d 79, 82 (Tenn. 1991).
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In the case sub judice, the defendant’s probation officer testified that the defendant
had committed multiple and egregious failures to report. The defendant also acknowledged
that she had not fully complied with the terms of her probation. This testimony was
sufficient to permit the trial court to reach the reasoned conclusion that the defendant had
violated the terms of her probation.
Upon finding that a defendant has violated the terms of her probation, a trial court has
the discretionary authority to order the defendant to: (1) serve her sentence in incarceration;
(2) serve the probationary term, beginning anew; or (3) serve a probationary period that is
extended for up to an additional two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999);
see also T.C.A. § 40-35-310(b). The determination of the proper consequence of the
violation embodies a separate exercise of discretion. Hunter, 1 S.W.3d at 647.
The defendant claims that the trial court erred by revoking the defendant’s probation
in full. In light of the loss of the defendant’s family members, the fact that these were her
first violations, and the fact that she had not yet been convicted of any crimes, the defendant
claims that a partial revocation would have been more appropriate. There is no doubt that
the loss of close family members is a tragedy that may have negative repercussions on an
individual’s judgment and her ability to meet major life obligations. However, the trial court
heard testimony from both the defendant’s probation officer and the defendant herself
concerning the number, length, and degree of the defendant’s violations. The trial court was
in the best position to evaluate the witnesses’ credibility and to determine what consequences
best served the interests of both the defendant and society. This court has repeatedly
cautioned that defendants are not entitled to multiple attempts at successfully completing
probation. See, e.g., State v. Juan Manuel Coronado, No. E2010-01058-CCA-R3-CD, 2011
Tenn. Crim. App. LEXIS 134, 2011 WL 704543, at *3 (Tenn. Crim. App. Mar. 1, 2011);
State v. Jeffrey A. Warfield, No. 01C01-9711-CC-0054, 1999 Tenn. Crim. App. LEXIS 115,
1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999). By fully revoking the defendant’s
probation, the trial court necessarily concluded that the defendant’s violations went beyond
anything that could legitimately be excused by grief. The record supports the trial court’s
decision in this regard. Accordingly, the trial court did not abuse its discretion by ordering
the defendant to serve the remainder of her original sentence in confinement.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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