# FILED

April 8, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE SEPTEMBER 1997 SESSION

STATE OF TENNESSEE ) ) NO. 03C01-9610-CC-00366 Appellee, ) ) BLOUNT COUN TY v. ) ) Hon. D. Kelly Thomas, Jr. BONNIE STILLWELL ) ) (Probation revocation) Appellant ) )

For the Appellant For the Appellee Mack Garner John Knox Walkup District Public Defender Attorney General & Repor ter 419 High Street Maryville, TN. 37804 Sarah M. Branch Assistant Attorney Gener al 2nd Floor Cordell Hull

Building 425 Fifth Avenue North Nashville, TN. 37243-0943 Michael L. Flynn District Attorney General Edward P. Bailey, Jr. Assistant District A

ttorney General 363 Court Street Maryville, TN. 37804-5906

OPINION FILED:_______________________ AFFIRMED WILLIAM M. BARKER, JUDGE1 The appellant ’s prio r convict ions were based upon gu ilt y pleas ent

ered in Januar

y, 1995. She pled guil

ty to eight count

s of passing a wor

thless check under $1000, three counts of passi ng a worthless check ov

er $1000, one count

of misdemeanor theft, two counts of f orgery, and two counts of utteri ng a forged document. The t rial co urt sentenced a ppellant to concurrent

terms of eleven ( 11) months and twe nty ni ne (29) da ys for each count

of passi ng a wort hless chec k under $1000 doll ars, t

wo (2) year s for each count of

passing a wort hless check over $1000, eleven (11) months and twenty nine (29) days f

or misdemeanor theft, one (1) year for each count of

forgery,and one (1) y ear for utt

ering a forged document. The sente nces were suspended and the appellant was placed on superv ised probation pursuant to Tennes see Code An notated section 40-20-206 (Sup p. 1994).

2 The trialcourt order ed the appell ant to serv e the jai l term at t

wo days a week for f orty f ive (45) consecutive weeks. 2 OPINION The appellant, Bonnie Stillwell, appeals as of right the Blount Coun ty Circuit Court’s order to rev

oke her probation. She contends that the trial court’s or der was improper in light of her efforts to comply with the ter

ms of probation. After a review of the record, we affirm the judg ment of the trial court. On October 17, 1 995, the appe llant pled guilty to nine counts of passing a worthless check under $1000 and was sentenced to elev en (11) months and twenty nine (29) days on each count. The trial court found that those offenses were committed while the appellant was serving p robationary sentences for pr evious convictions. 1 The trial court, therefore, r evoked that probation and plac ed the appellant on intensive pr obation. As part of intensive probati on, the appellant was order ed to report to and obey all instructions from her probation officer, maintain employ ment approved by her probation officer, complete ten hours of community service per month, notify her probation officer of any change of addr ess, and pay restitution and court costs for her current and previous w orthless check convic

tions. Additionally, the appellant was ordered to serve ninety (90) days, split confinement, in the Blount County jail. 2 On March 25, 1996, the appellant was arrested pursuant t o a probation violation warrant . The trial court conducted a hearing and received t estimony from the appellant and her probation officer. The evidence was undisput ed that the appellant had failed to comply with the terms of her intensive p robation. In the five months following the trial court’s judgment, the appell ant had served only tw enty eight (28)3

days of her split confinement in the Blount County jail. Moreover, she had failed to complete any community ser vice and had quit her j ob and changed residences w ithout notifying her probation officer

. Marcus Miller, the appellant’s probation officer, tes tified that the appellant was negligent in her attendanc e at their weekly p robation meetings. Mr. Miller stated that for nearly two consecutive months, the appellant mis sed her probation meetings and failed to serve any jai l time as required under her split confinement. Further more, he indicated that for over a month, he lost all contact with the appellant an d was unable to reach her at her residenc e. From previous meetings with the appellant, Mr. Miller had knowl edge that the appellant was experi encing difficulties at w ork and in her marriage. He testified that the appellant quit her job at Walmart in December, 1995, and failed to find subseq uent employment. Moreover, he stated that she began moving to differen t residences in January, 1995, because she was attempting to hide from an ab usive husband. Mr. Miller explained tha

t he tried to work ar

ound the appellant’s difficulties;however, he was unable to help her after s he moved without notifyi ng his office. The appellant admitted that she had failed to comply with the ter ms of her probation. She explained, how ever, that her domestic pr oblems and various health ailments prevented her from sat isfying the probation r equirements. The appellant testified that she suffered from bursiti s in her hip and was unabl e to walk for several weeks in December, 1995. She stated that she spent almost tw o weeks in bed during that month and was forced to quit her job at W almart. However, she could not explain why she com pletely te rminate d her emp loyment i nstead o f request ing a medi cal leave of absence. The appellant also testified that due to problems with her husb and, she was unable to serve her jail time or attend the scheduled meeti ngs with her probati on officer. According to the appel lant, her husband persistentl y abused her and threatened her life during th e probation period. She testified that she moved away4

from her husband in January, 1996;however, she indic ated that he eventually found her and confiscated her vehic le. Based upon the above evidence, the trial court determined that the appellant had materially viol ated the terms of her intensiv e probation. The trial court , therefore, revoked probation and order ed the appellant to serve ni nety (90) days in th e Blount County jail. The appellant contends on appeal that the trial court’s order

was excessive

and improper in light of the per sonal circumstances surr ounding her case. Althoug h she challenges the revocat ion of her probation, the substance of her complaint is the length of the ninety (90) day sentence. She request s this Court to reduce her sentence to thirty (30)

days of split confinement in the Blount County jail w ith the remainder to be served in community corrections. To support her contention, the appel lant relies upon the principles set forth in State v. Dye , 715 S.W.2d 36, 40-41 (Tenn. 1986). In Dye , our supreme court addressed the revocation of pr obation where a defendant failed to pay restitution. See id. at 37. Following the United States Supreme Court’ s decision in Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L. Ed.2d 221 (1983), the Dye court held that when a probationer has made all reasonable eff orts to pay restitution, it is fundamentally unfair to revok e probation without consi dering whether adequat e alternative methods of punishment a re available. See 715 S.W.2d at 40. However, the court observed that the Bearden rationale is limited and does not apply where a defendant is somehow responsibl e or at fault in failing to pay the restitution. See id. In this case, we find that the trial court’s order was justified in light of evidence that the appellant was res ponsible for neglecting h er probation requirements . The appellant admitted that she failed to participate in community service, she missed multiple meetings with her probation officer, she qui t her job without obtaini ng subsequent employment, she chang ed her residence without notifying her probation officer, an d she failed to serve her jail term as instructed by the trial court. Altho ugh5

the appellant contends that var ious health and domestic problems contributed to her noncomplianc

e, she has fail ed to demonstr ate a clear i nability to conform to t he terms of her probation. The record reflec ts that the appellant was g iven several opportunities by her probation officer to satisfy the probat ion requirements; however, she persistently miss

ed her probation meetings and further lost contact with her probation officer for almost two months. Although we sympathiz e with the appellant’s pr edicament, we find that her probation violations, both present and past, justify the trial court’s order. A trial court may revoke a defendant’s prob ation whenever it finds

by a preponderance of the evidence that the defendant has v iolated the conditions of her pr obation. See Tenn. Code Ann. § 40-35-311(d) (1995) . Moreover, upon rev ocation, the trial court may execute a new sentence pr ovided that it is equal

to or less onerous than the or iginal
sentence. See State v. Melvin Griffin , No. 01C01-9503-CC-00090 ( Tenn. Crim. App. at Nashville, Nov . 16, 1995). In this case, the trial court revoked appellant’s probation and imposed a less onerous sentence of ninety (90) days in the Blount County jail. That decision w

as committed to the sound discreti on of the trial judge and w ill not be overturned on appeal absent an abuse of discretion. See State v. Williamson , 619 S.W.2d 145, 147 (Tenn. Crim. App. 1981), per. app. denied (Tenn. 1981). Finding no abuse of discreti on, we affirm the judgment of the tri al court.

___________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

__________________________ JOHN H. PEAY, JUDG E

__________________________ DAVID G. HAYES, JUDG E