State of Tennessee v. Mark Ethan Felices

09/17/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 19, 2020
STATE OF TENNESSEE v. MARK ETHAN FELICES
Appeal from the Circuit Court for Bedford County
No. 18616 Forest A. Durard, Jr., Judge
No. M2020-00047-CCA-R3-CD
The defendant, Mark Ethan Felices, appeals the revocation of his probation, arguing that
the trial court erred by ordering that he serve the balance of his sentence in confinement.
Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and TIMOTHY L. EASTER, JJ., joined.
James R. Tucker, Assistant District Public Defender, for the appellant, Mark Ethan Felices.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Mike Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
In December 2017, the defendant pleaded guilty to the possession with intent
to sell a Schedule I controlled substance in exchange for a sentence of eight years’
incarceration. The defendant was placed on probation in June 2018 following his
completion of a Tennessee Department of Correction (“TDOC”) “boot camp” program. A
probation violation warrant issued on January 9, 2019, alleging that the defendant had
violated the terms of his release by testing positive for the use of marijuana. A second
violation warrant issued on December 16, 2019, alleging that the defendant had violated
the terms of his release by failing to provide a valid address to his probation officer and
failing to report.
At the December 16, 2019 violation hearing, the defendant, through counsel,
admitted that he had violated the terms of his probation but asked the court to return him
to probation rather than ordering him to serve the balance of his sentence in confinement.
In an unsworn allocution, the defendant said that he was “not the same person” that he had
been and that he was “striv[ing] every day to be a better person to make this world a better
place.” He said that he had allowed his addiction to “nearly ruin his life.” The defendant
said that he believed he “would benefit from a halfway house or rehab to give me the tools
I need to help face my problems head-on, go to school and graduate, excel in my silversmith
career, and eventually open my own dog rescue.” He asked the court for “mercy and one
last opportunity to complete my goals and be a productive tax paying member of society
and be there for my family because time is precious and I can’t waste another minute.”
The State argued that the defendant had never been a good candidate for
probation and that “unfortunately [TDOC] ha[s] the boot camp program which kicks them
out almost as fast as we put them there.” The State noted that the defendant violated his
probation within six months by using drugs and that he then absconded for nearly a year
before he was arrested.
The trial court noted that the defendant picked up new charges in Davidson
County while the charges were originally pending in this case and that the defendant had
failed to appear to answer charges in both Rutherford and Bedford Counties. The defendant
had previously violated his probation in another Bedford County case. The court found
that the defendant had “tried and failed,” saying, “In this particular situation you knew you
had been smoking dope, you knew that was a violation of your probation. As soon as that
happened you hit the highway not to return until such time as I had you arrested.” The
court concluded that the defendant was not “a good candidate for any further alternative
sentencing” and ordered that he serve the balance of his sentence in TDOC.
In this timely appeal, the defendant argues that the trial court erred by
ordering him to serve the remainder of his sentence. The State asserts that the trial court
did not err.
The accepted appellate standard of review of a probation revocation is abuse
of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion,
bases its ruling on a clearly erroneous assessment of the proof, or applies reasoning that
causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn.
2010). The 1989 Sentencing Act expresses a burden of proof for revocation cases: “If the
trial judge finds that the defendant has violated the conditions of probation and suspension
by a preponderance of the evidence, the trial judge shall have the right by order duly entered
upon the minutes of the court to revoke the probation and suspension of sentence . . . .”
T.C.A. § 40-35-311(e)(1).
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Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation
and “[c]ause the defendant to commence the execution of the judgment as originally
entered, or otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the trial judge may
order the original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension, and that it be executed accordingly.” T.C.A. § 40-35-310(a).
In other words, “[t]he trial judge retains the discretionary authority to order the defendant
to serve the original sentence.” Reams, 265 S.W.3d at 430 (citing State v. Duke, 902
S.W.2d 424, 427 (Tenn. Crim. App. 1995)).
In the present case, the defendant acknowledged that he violated the terms of
his probation at the revocation hearing, and he does not contend otherwise on appeal.
Instead, the defendant argues that a sentence other than confinement would have been more
appropriate under the circumstances here presented. The law is well-settled, however, that
the trial court does not abuse its discretion by choosing incarceration from among the
options available after finding that the defendant has violated the terms of his probation.
Consequently, we affirm the order of the trial court.
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JAMES CURWOOD WITT, JR., JUDGE
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