# FILED September 27, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE AUGUST SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9808- CR-00297 ) Appellee, ) ) ) KNOX COUNTY VS. ) ) HON. RAY L. JENKINS, JAMES EDWARD OAKLEY, ) JUDGE ) Appe llant. ) (Re voca tion of Co mm unit y ) Corrections Sentence)
ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF KNOX COUNTY FOR THE APPELLANT: FOR THE APPELLEE : KIMBE RLY A. PARTON PAUL G. SUM MERS P.O. Box 116 Attorney Generaland Reporter Knoxvill e, TN 37901-0116 ELLEN H. POLLACK Assistant Distri ct Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 RANDALL E. NICHOLS Distri ct Attorney General ZANE SCARLETT Assistant Distri ct Attorney General City-County

Building Knoxvill e, TN 37902
OPINION FILED ________________________ AFFIRMED DAVI D H. WELL ES, J UDGE-2- 

# OPINION

The Defe ndan t appe als fro m the judgm ent of th e trial co urt revo king h is comm unity corrections sentence and ordering t he balance of hi s sentence to be served in the De partme nt of Corre ction. We affirm the judgment of the trial cou rt.

Ba se d on our revi ew of the recor d presented on appeal , it appea rs that judgm ents of convic

tion were entered against the Defendant on December 17, 1997 for fi fteen counts of aggravated burglary and one count of bu rgla ry. For each conviction the Defe ndant w as sen tenced to fo ur years as a Range I standard offender . Th e tri al court or dered five of the sentences served cons ecutive ly and the remaini ng sentences served conc urrently, for an effective sentence of twenty years. The t rial court gra nted the Defen dant’s ap plication to serve his twenty-year sen tence in the Kn ox County C omm unity Altern atives to Pri son Pro gra m.
On January 14, 1998, a petiti on was fil ed allegi ng that theDefendant had violated the terms of

his community cor rectionssentence by: (1) fai ling to obey the law, (2)faili ng to make a fullan d truth ful repor t to his case manager, (3) faili ng to be acti vely employed, (4) failingto pay court costs , (5) failing to perform comm unity servic e, (6) fa iling to pay community correcti ons monthly fee s, (7) failing to pay victim restitution, and (8 ) failing to report to his superviso r.
Counsel was appo inted to r epresent the Defendant and a heari ng was conducted on the re vocation peti tion on May 15, 1998. At the hearing, the-3-

Defe ndan t’s attorney

advised the court that the Defe ndant w anted to “subm it to the revocati on.” At t hat time, additionalcharges were a ppare ntly pending against the Defendant, and couns el state d, “But hewishes to goahead and submit and go to the peni tentiar

y and hope that t he other charges do n’t c ome out of the Grand Jury.” The trialjudge addressed the Defendan t in open court as foll ows: THE COURT: Mr. Oakle y, Ms. Par ton has advis ed the Court thatyou intend t

o submit to t he revocati on warrant and go on a nd serve the time; is that c orrect? THE DEFENDANT: Yes, sir. THE COURT: Y ou’ve d iscussed thi s with her an d you feel it’s in your be st interest? THE DEFENDANT: Yes, sir. THE COURT: Okay. All right. Al l right . Thank you.
An order was enter

ed on May 15, 1998 fi nding the Defendan t guilty o f violat ing the terms of his com mu nity cor rections sentence, gra nting the De fendant 549 days of jail cr edit, and ordering t he balance of the sentence served in t he Department of Corr ection.
On June 3, 1998, the Defendant fil ed a motion to have his case rehear d, statingthat he had h is 

### ? mind set on chan ging” a nd did not wa nt to se rve his sentence in pris on . The trialcourt enter ed an order dis missing thi s motion on June 8, 1998. On June 23, 199 8, the Defendant filed a motion to wai ve or suspend payment ofall cour t costs, which was dismis sed by the trial court o n July 7, 1998. O n July 30, 1 998, the Defe n dant fil ed a notice of appeal from t he judgment entered on May 15, 1998. On August 24, 1998, the Defendant f iled a request that his sentence be reduce d, alon g with a motion to have his case retried, statin g that he d id not “entire ly unders tand” his p lea agre emen t.-4- In this appeal , the Defendant argues that the trial court erred by rev oking the Defendant’s communit y correct ions sentence an d by order in g that the o riginal sentences be served in t he Department of Corr ection. He also argues t hat the trialcourt err

ed by dismissi ng his motion f or a reducti on of senten ce an d his motion to rehear

without a h earing.

In order for

a reviewi ng court to find an abuse ofdiscretion in a com munity correcti ons revocati on case, it must be establi shed that t he recor d c ontains no substanti al evidence to support the concl usi on of the trial j udge that the Defendant violated the te rms of th e com munity c orrection s progra m. State v. Harkins , 811 S.W .2d 79, 82 (Tenn . 1991). T he proo f of a violat ion need not be establi shed beyond a reasonabl e doubt, and is su ffi cient if i t all ows the tri al judge to mak e a con scientiou s and inte lligent decis ion. Id.

From the reco rd before us, we ca nnot co nclude that the tr ial j ud ge erred or abused his dis cretion by revoking t he Defendant’s community correct ions sentence and ordering t he balance of t he sentence serve d in the Depart ment of Correction. We likewise fi nd no error or abuse of discretion in refusing to consider

the Defen dant’s m otion for a re duction o f sentenc e. At the heari ng on the revocati on warrant, the Defen dant app eared with hi s attorney and advised t he court that he wis hed to 

### ? submit” to t he revocati on warrant and serve his sentence in the penitentiary . The Defe ndan t’s positi on at the rev ocation heari ng leads us to conclude that

he conceded he had viol ated the terms of hi s commun ity correcti ons sentence. At the heari ng, counsel al so advised t he trialcourt that the Defendant wished to be transferred to the penitentiar y as soon as possi ble.-5- Although neit her the record nor the transc ript

from the Defen dant’s gu ilty plea proceeding i s before us, it is apparent that

his twent

y year sentence was the result of a pl ea agre emen t. The trial jud ge gran ted the D efenda nt’s reque st to serve his sentence i n a community based alterna tive to incarcerat ion. Subseq uently, during the Defendant’s rev ocation heari ng, the trial court granted the Defe ndan t’s request to r evoke his community

correcti ons sentence and al low him to serve his sen tence in the Departmentof Correcti on. The State argues that the Defendant i s the “author of his own pr

edicament.” We agree.
The jud gmen t of the trial cou rt is affirmed
.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JERRY L . SMI TH, J UDGE

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE