State of Tennessee v. Terry Lin Johnson

09/29/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 19, 2020
STATE OF TENNESSEE v. TERRY LIN JOHNSON
Appeal from the Criminal Court for Putnam County
No. 18-CR-106 Gary McKenzie, Judge
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No. M2019-02234-CCA-R3-CD
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Defendant, Terry Lin Johnson, appeals from the trial court’s full revocation of probation
in November 2019. Defendant argues that the trial court abused its discretion when it
required Defendant to serve his entire sentence because no substantial evidence of a
probation violation was presented at the probation revocation hearing. Defendant also
argues that the trial court acted too harshly when it required Defendant to serve his entire
sentence. After conducting a thorough review of the record, we affirm the judgment of
the trial.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and CAMILLE R. MCMULLEN, JJ., joined.
Craig P. Fickling, District Public Defender; and Allison R. West, Assistant Public
Defender, for the appellant, Terry Lin Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Beth Willis,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On May 8, 2018, the Putnam County Grand Jury indicted Defendant for one count
of possession of oxycodone with the intent to sell or deliver within a drug free zone. On
September 24, 2018, Defendant pled guilty to the lesser included offense of possession of
oxycodone with the intent to sell and received a four-year sentence to be served on
probation. The trial court ordered Defendant to report for probation on October 2, 2018.
A probation violation warrant was issued on October 15, 2018. After a probation
violation hearing on January 14, 2019, the trial court partially revoked Defendant’s
probation, ordered Defendant to serve 120 days in confinement, and transferred
Defendant’s probation supervision to Community Corrections for the remainder of his
sentence.
On July 25, 2019, a Community Corrections violation warrant was issued after
Defendant failed to report to three scheduled appointments in July 2019 and failed to be
present for a home visit. A violation hearing was held on November 18, 2019.
Community Corrections Officer Charlie Frazier testified that Defendant first
reported to him after Defendant served 120 days in confinement after his first probation
violation. Officer Frazier explained that Defendant was required to report twice a week.
Officer Frazier testified that Defendant missed several appointments in July and that
Defendant could not be found at his home. At the time of the revocation hearing, Officer
Frazier had not seen Defendant since sometime in June 2019.
Sergeant Kim Brown of the Putnam County Sheriff’s Department testified that she
had received information the morning of the hearing that Defendant had been diagnosed
with cancer. Sergeant Brown stated that if Defendant’s probation was revoked, he would
be sent to “Special Needs” within the Tennessee Department of Correction.
Defendant testified that he learned of his cancer diagnosis shortly before the
hearing. He stated that he missed the appointments because he was sick, and his blood
pressure “started going up real high.” Defendant testified that he stopped reporting
because he “figured [Officer Frazier] already violated [him].” Defendant admitted that
he was “not disputing that [he was] in violation” for “not showing up” for his regularly
scheduled office visits.
The trial court stated that it “can’t have [Defendant] out there not reporting.”
The trial court acknowledged that Defendant was given two chances. The trial court
found that Defendant was in violation of the conditions of his probation and ordered that
Defendant serve his original four-year sentence in confinement. The trial court was
concerned that Defendant’s medical treatment should not be delayed and ordered that the
process for getting Defendant in “Special Needs” go forward in a swift, non-bureaucratic
manner. It is from the revocation of probation that Defendant now appeals.
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Analysis
Defendant argues that trial court was too harsh and abused its discretion by
revoking his probation and requiring him to serve his four-year sentence in confinement.
The State argues that the trial court did not abuse its discretion. We agree with the State.
Upon a finding by a preponderance of the evidence that a defendant has violated
the conditions of probation, the trial court “shall have the right . . . to revoke the
probation.” T.C.A. § 40-35-311(e)(1). After revoking a defendant’s probation, the trial
court is authorized to order a defendant to serve the balance of his original sentence in
confinement, return a defendant to probation with modified conditions as necessary, or
extend the period of probation by no more than two years. T.C.A. §§ 40-35-308, -310.
The revocation of probation rests in the sound discretion of the trial court and will not be
overturned by this Court absent an abuse of that discretion. State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991); State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). An
abuse of discretion occurs when the “record contains no substantial evidence to support
the conclusion of the trial judge that a violation of the conditions of probation has
occurred.” State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980); see also State v.
Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). As this Court has recognized, “[a
d]efendant’s admission that he violated the terms of his probation, alone, constitutes
substantial evidence to support the revocation of probation.” State v. Ross Pruitt, No.
E2015-01494-CCA-R3-CD, 2016 WL 3342356, at *4 (Tenn. Crim. App. June 8, 2016)
(citing State v. Christopher Nathaniel Richardson, No. M2006-01060-CCA-R3-CD, 2007
WL 776876, at *4 (Tenn. Crim. App. Mar. 15, 2007), no perm. app. filed), no perm. app.
filed; see State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999).
Although Defendant was never transferred to Community Corrections as an
eligible offender as defined in Tennessee Code Annotated 40-36-106(a), he was being
supervised by a Community Corrections officer at the time of the violation and the same
principles that apply in the revocation of probation also apply in the revocation of
Community Corrections. Harkins, 811 S.W.2d at 83.
Here, Officer Frazier testified that at the time of the hearing in November 2019, he
had not seen Defendant since June of that same year. The terms of Defendant’s
Community Corrections program required him to meet with Officer Frazier twice a week.
Defendant testified that he quit reporting to Officer Frazier because he “figured [Officer
Frazier] already violated [him].” Defendant admitted that he was not disputing the
violation. The evidence does not preponderate against the finding of the trial court. The
trial court did not abuse his discretion and Defendant is not entitled to relief.
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Defendant further argues that the trial court “acted too harshly” when it ordered
Defendant to serve his original sentence in confinement. Defendant relies on State v.
Hunter, to argue that reinstatement of his original sentence produces “too harsh a result.”
1 S.W.3d 643, 646-47 (Tenn. 1999). In Hunter, the Supreme Court stated that “the trial
court has the option to extend the existing probationary period up to two additional years
instead of imposing the original sentence. The Sentencing Commission Comments
suggest that Tennessee Code Annotated section 40-35-308(c) was designed to address
situations where a defendant violates a probationary sentence “near the end of the
probation term and reinstatement of the defendant’s original sentence would produce too
harsh a result.” Id. The supreme court also stated that “[n]othing in the text of
[Tennessee Code Annotated] section 40-35-308(c) prohibits a trial court from causing
execution of a defendant’s original sentence.” Id. at 647. Here, the trial court considered
Defendant’s cancer diagnosis. The trial court stated that the trial court “[didn’t] want
there to be a delay in his treatment.” The court noted that Defendant would be sent to
“Special Needs” and ordered that the placement process begin immediately. This issue is
without merit. Defendant is not entitled to relief.
Conclusion
Based on the foregoing, we affirm the judgment of the trial court.
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TIMOTHY L. EASTER, JUDGE
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