State v. Sandra Hundley

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE June 8, 1999
Cecil Crowson, Jr.
MARCH 1999 SESSION Appellate C ourt
Clerk
STATE OF TENNESSEE, * C.C.A. No. 03C01-9804-CC-00128
Appellee, * BLOUNT COUNTY
vs. * Hon. D. Kelly Thomas, Jr., Judge
SANDRA C. HUNDLEY, * (Probation Revocation)
Appellant. *
For Appellant: For Appellee:
Julie A. Martin John Knox Walkup
P.O. Box #426 Attorney General and Reporter
Knoxville, TN 37901-0426 425 Fifth Avenue North
Nashville, TN 37243-0493
Mack Garner
District Public Defender Todd R. Kelly
419 High Street Assistant Attorney General
Maryville, Tennessee 37804 Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493
Philip Morton
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED:
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
The appellant, Sandra C. Hundley, appeals the order of the Circuit
Court of Blount County revoking her probation and requiring that she serve the
balance of her sentence in the Tennessee Department of Correction Special Needs
Unit. Specifically, the appellant contends that, following the revocation of her
probation, the trial court should have sentenced her pursuant to the Tennessee
Community Corrections Act of 1985.
Following a review of the record, we affirm the judgment of the trial
court.
I. Factual Background
On June 23, 1994, pursuant to her pleas of guilt, the appellant was
convicted of uttering a forged check over one thousand dollars ($1,000.00) and
uttering a forged check over five hundred dollars ($500.00). The trial court imposed
concurrent sentences of two years and one year incarceration in the Blount County
Jail. The trial court suspended all but fifteen days of the appellant’s sentence and
placed her on supervised probation for a period of three (3) years, eleven (11)
months, and fifteen (15) days. Special conditions of the appellant’s probation
included frequent drug screens and an alcohol and drug assessment.
On December 31, 1996, the appellant’s probation officer, Sue Littleton,
filed an affidavit with the Blount County Circuit Court. In the affidavit, Ms. Littleton
alleged that the appellant had been convicted on July 11, 1996, of driving on a
suspended license and had been arrested on November 13, 1996, for driving on a
revoked license. Ms. Littleton also alleged that the appellant had failed to complete
alcohol and drug counseling and Self-esteem and GED classes, provided by the
2
Community corrections program. The appellant had failed to pay probation
supervision fees from June, 1996 through November, 1996 and had failed to verify
payment of court costs since April, 1996. On April 7, 1997, following the appellant’s
stipulation that she had violated the terms of her probation, the trial court ordered
that the appellant serve ten (10) consecutive weekends in the Blount County Jail
beginning on April 11, 1997.
On March 6, 1998, Ms. Littleton again filed an affidavit with the trial
court stating that the appellant had failed to serve ten consecutive weekends in jail
and had failed to pay court costs. The court issued a warrant for the appellant’s
arrest. The trial court conducted a probation revocation hearing on March 30, 1998.
Ms. Littleton, the appellant’s probation officer, testified at the hearing. She stated
that she had supervised the appellant’s probation since September, 1994. She
confirmed that, although the appellant had been ordered to serve ten consecutive
weekends in the Blount County Jail beginning in April,1997, the appellant had
served only four weekends at the time the probation revocation warrant was issued
almost one year later.
The probation officer recounted that the appellant served two
weekends in the Blount County Jail in June, 1997. The appellant then attempted to
commit suicide in July, 1997, overdosing with Amitriptyline, an anti-depressant
medication that had been prescribed to the appellant by a doctor. Apparently as a
result of her suicide attempt, the appellant also developed a blood clot in her leg
which required treatment. Ms. Littleton spoke with the Assistant District Attorney
General and informed him that, due to the appellant’s health problems, she did not
believe the appellant should return to jail until January, 1998. At that time, the
appellant attempted to report to the jail on several occasions, but was turned away
3
due to overcrowding in the jail and, on one occasion, an outbreak of the flu. The
appellant was able to serve two weekends in jail in February, 1998. However, she
did not report to the jail on the last weekend in February. In March, the appellant’s
mother informed Ms. Littleton that the appellant had not reported to the jail, because
she had again overdosed with her medication and her mother had been unable to
awaken the appellant. The probation officer became concerned that the appellant
would again attempt to commit suicide and requested a probation revocation
warrant.
Ms. Littleton additionally testified that the appellant owed almost two
thousand dollars ($2,000.00) in restitution. However, at the time of the probation
revocation hearing, the appellant had only paid approximately one hundred and fifty
dollars ($150.00). The probation officer stated that the appellant is the mother of
two children. Moreover, the appellant’s health problems and her lack of a driver’s
license had prevented the appellant from maintaining employment and had
contributed to the appellant’s poor attendance at classes conducted by the
Community Corrections program.
Ms. Littleton stated that, with the exception of her failure to serve the
required weekends in the Blount County Jail, the appellant had made efforts to
comply with the conditions of her probation, but had been thwarted by her financial
circumstances. She testified that the appellant was attempting to obtain
Supplemental Security Income and, if successful, would be able to comply with the
conditions of probation. She further opined that the appellant needs counseling for
mental health problems. Finally, the probation officer recommended that the
appellant be placed in jail only until she had served the balance of incarceration
ordered by the court at the conclusion of the prior probation revocation proceeding.
4
The appellant also testified at the probation revocation hearing. She
stated that she was unable to maintain steady employment due to her lack of a
driver’s license. Yet, she could not afford the fees required to reinstate her driver’s
license. She testified that she was currently applying for Supplemental Security
Income for both herself and her son.
Additionally, the appellant stated that, in part, she failed to serve the
required weekends in jail because she had to care for her son. With respect to her
suicide attempt, she explained that she overdosed on prescription medication
because she “couldn’t handle anymore.” However, she could not recall why, prior to
attempting suicide, she failed to report to the jail on weekends. Furthermore, the
appellant conceded that she recovered from her suicide attempt in October, 1997
and could not recall why she did not report to the jail at that time. She also could
not recall overdosing with her medication in February, 1998.
The appellant testified that she was no longer on psychotropic
medication at the time of the probation revocation hearing, and was seeing a
psychiatrist. She was also taking medication for the blood clot in her leg and
receiving blood tests once every two weeks. The appellant stated that she did not
take illegal drugs and, despite regular testing, had never failed a drug test while on
probation. The appellant asserted that she had been reporting to her probation
officer regularly. She also stated that if her applications for Supplemental Security
Income were approved, she could pay her court costs. Finally, she claimed that she
needed to return home in order to avoid eviction by the Knoxville Housing Authority.
She stated that, since her arrest for the probation violation, she had served twenty-
five days in jail.
5
At the conclusion of the hearing, the trial court ruled as follows:
From the proof presented, Ms. Hundley has violated her
probation. This is the second time. She has had the
benefit of about everything that there is to offer. She was
sentenced to serve fifteen days in jail originally and she
appealed that. So, she got the court of Appeals to look
at that. That delayed her jail time for her for over a year -
- or a year.
So, she served her fifteen days and then got arrested
twice for driving on a suspended license. And didn’t
compete her drug and alcohol group. So, for that,
instead of being revoked, she just got ten consecutive
weekends in jail beginning April 11th, 1997, at 4:30 p.m.,
to accommodate her work schedule. She wasn’t capable
of doing that.
And in the meantime, she has tried to harm herself once,
if not twice. And as recently as earlier this month, was at
home and, in such a state from taking some kind of
medication or drugs, couldn’t be wakened by her mother
and doesn’t even remember anything about it or know
anything about it. And it’s what brought this warrant on
and she got arrested because of it and still doesn’t know
anything about it.
By saying these things, I’m not suggesting that Ms.
Hundley isn’t doing the best that she can do, but, you
know, what’s the alternative? You do the best you can
on probation and you can’t do it, then does that mean
that you just forget it, if nothing -- you know, just nothing
happens?
There is nothing available to help her that probation
hasn’t already tried, and she can’t do it. And there’s
nothing in the record to indicate that there’s anything out
there that hasn’t been tried. And I guess some people
truly aren’t capable of being out and being on probation.
She does not need to be in our jail for six months and
she doesn’t need to be on probation. It’s obvious it’s a
danger to her from the proof that I’ve heard. Forget her
not being able to go to jail or do what she’s supposed to
do, it’s a danger for her personal safety.
So, I’m going to revoke her probation, order her to serve
the balance of her sentence in the Department of
Corrections, make a recommendation that she be
evaluated to determine if she should be in the Special
Needs Unit, but that’s up to the Department of
Corrections.
While she’s being held in the jail waiting to be
6
transported, I will ask someone from Community
Corrections to interview her and see if there is something
that might work -- you know, I mean, that would likely
work to make her treatable in this community as opposed
to having to be sent to the penitentiary, in case there’s
something out there that we didn’t know about. But more
of the same is pointless.
II. Analysis
Initially, the appellant does not challenge the revocation of her
probation. A trial court may revoke a defendant’s probation when it finds by a
preponderance of the evidence that the probationer has violated the conditions of
probation. Tenn. Code. Ann. § 40-35-310, -311(d) (1997). The appellant concedes
that she violated the conditions of her probation. Nevertheless, she asserts that the
trial court abused its discretion by failing to consider general sentencing principles
and by failing to impose a community corrections sentence.
In the context of probation revocation proceedings, an abuse of
discretion occurs only when the record contains no substantial evidence to support
the conclusion of the trial court that a violation of a condition of probation has
occurred. State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995). If the
defendant has violated a condition of probation, Tenn. Code. Ann. § 40-35-311(d)
(1997) grants the trial court the authority “to commence execution of the judgment
as originally entered.” Contrary to the appellant’s assertions, the trial court is not
required to reconsider sentencing principles at this stage in the proceedings. State
v. Seymour, No. 03C01-9709-CR-00357, 1998 WL 842197, at *2 (Tenn. Crim. App.
at Knoxville, December 8, 1998); State v. Burnette, No. 03C01-9608-CR-00314,
1997 WL 414979, at *2 (Tenn. Crim. App. at Knoxville, July 25, 1997). The
petitioner’s argument is without merit.
7
We do note that the trial court in this case modified the appellant’s
original sentence, ordering the appellant to serve her effective sentence of two years
in the Department of Correction rather than in the local jail. However, Tenn. Code.
Ann. § 40-35-212(c) (1997) provides that, unless a defendant receives a sentence in
the Department, the trial court retains full jurisdiction over the manner of the
defendant’s sentence service. Moreover, Tenn. Code. Ann. § 40-35-314(e) (1997)
provides that a trial court has full authority to transfer a defendant to the Department
of Corrections if a defendant serving a felony sentence in a local jail develops
medical problems that the local jail is not equipped to treat. Clearly, in this case, the
trial court transferred the appellant to the Department of Correction because of his
concern that she receive treatment for her mental health problems.
For the foregoing reasons, we affirm the judgment of the trial court.
Norma McGee Ogle, Judge
Concur:
Gary R. Wade, Presiding Judge
8
Cornelia A. Clark, Special Judge
9