State v. Tony Greene

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1997 SESSION
December 3, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9702-CC-00043
)
) Montgomery County
v. )
) Honorable John H. Gasaway, III, Judge
)
TONY GREENE, ) (Probation Revocation)
)
Appellant. )
For the Appellant: For the Appellee:
Michael R. Jones John Know Walkup
District Public Defender Attorney General of Tennessee
and and
Russel Church Clinton J. Morgan
Assistant Public Defender Assistant Attorney General of Tennessee
109 S. Second Street 450 James Robertson Parkway
Clarksville, TN 37040 Nashville, TN 37243-0493
(ON APPEAL)
John Wesley Carney, Jr.
Reese N. Bagwell, Jr. District Attorney General
116 S. Second Street and
Clarksville, TN 37040 Steve Garrett
(AT TRIAL) Assistant District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Tony Greene, appeals as of right from a judgment of the
Montgomery County Circuit Court revoking his probation and requiring him to serve the
balance of his concurrent sentences. The defendant contends that the trial court erred
in ordering him to serve the full balance of his sentences because less restrictive
means could have been applied. We disagree.
In September 1990, the defendant was convicted, upon his guilty pleas, of
two charges of the sale of cocaine. He received concurrent eight-year sentences to be
served on probation. In October 1992, the defendant’s probation was revoked and he
was placed in the community corrections program. The record reflects that on the
same date he was sentenced for another cocaine sale offense to eight years in the
community corrections program. In July 1994, the defendant was charged in four more
cocaine-related cases, and pursuant to an agreement, he was convicted upon his plea
of guilty to one offense of sale of a Schedule II substance and he received a ten-year
sentence concurrent with his former sentences. At the same time, an order was
entered revoking his community corrections sentences and ordering that the sentences
be served in custody concurrently with the new ten-year sentence. In September 1995,
the defendant was placed on probation by the Department of Correction pursuant to its
boot camp program.
On March 26, 1996, a probation violation report, affidavit and warrant
were filed alleging probation violations with regard to the Department of Correction
probation order. The probation officer, Gary Hammer, testified that the grounds for
revocation were failure to report and curfew violations. He said that the defendant had
not reported since March 6, although he had advised the defendant numerous times of
the obligation to report. Mr. Hammer also testified that the defendant had an 8:00 p.m.
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curfew but was not present at his home on sixteen occasions in January, February,
March and April when he had gone to the defendant’s home. Mr. Hammer stated that
the defendant said that he often stopped after work at his grandmother’s house to have
dinner.
The defendant testified that he could not report at 6:00 a.m. twice a week
as required by Mr. Hammer because he had no personal transportation. He said that
he told Mr. Hammer about his problem, but Mr. Hammer said that he still had to report.
Also, he was not able to be home by 8:00 p.m. because of work. However, he also
acknowledged that he had gone to his grandmother’s house. In rebuttal, Mr. Hammer
testified that he was aware of the defendant’s work schedule and never checked his
home until 8:15 p.m. or afterwards.
The trial court noted the defendant’s history in these cases. It found that
the defendant had violated the conditions of his probation relative to the reporting and
curfew requirements. It concluded that, given the defendant’s history, the violation
constituted willful disobedience to the conditions. It revoked the defendant’s probation.
The defendant contends that his substantial compliance with the
“important things,” such as not using or selling drugs and working, warrant a conclusion
that the violations did not rise to the level of justifying full revocation of probation.
It is within the trial court’s discretion to revoke the defendant’s probation if
it finds by a preponderance of the evidence that the defendant has violated a condition
of that probation. T.C.A. §§ 40-35-310 and -311(d); State v. Mitchell, 810 S.W.2d 733,
735 (Tenn. Crim. App. 1991). For an appellate court to find an abuse of discretion and
reverse a trial court’s revocation of probation, it must be demonstrated that the record
contains no substantial evidence to support the conclusion of the trial court that a
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violation of the conditions of probation has occurred. See State v. Delp, 614 S.W.2d
395, 398 (Tenn. Crim. App. 1980).
In the present case, the defendant admitted that he did not comply with all
the conditions of his probation. The trial court attached significance to this because of
the defendant’s prior violations of earlier conditions for release in the community. Such
was justified under the evidence. We believe that the record reflects that the trial court
made a conscientious and intelligent judgment to revoke probation under the evidence.
See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The judgment of the trial court
is affirmed.
___________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________
John H. Peay, Judge
_________________________
David H. Welles, Judge
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