### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecember

18, 2001

STATE OF TENN ESSEE v. GREGORY SCOTT ALLISON

Appeal from the Circuit Court for Blount County No. C-10277 D. Kelly Thomas, Jr., Judge

No. E2001-00248-CCA-R3-CD March 25, 2002

The defendant, Gregory Scott Allison, appeals from the Blount County Circuit Court’s revoking his probation that was ordered for his sentences for bur glary and theft. The defendant contends that although the trial court may have been justified in finding that he violated the terms of his probation, it erred in senten cing him to c onfineme nt. We af firm the j udgment of

the trial court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delive red the o pinion of t

h e court, i n which T HOMAS T. W OODALL and R OBERT W. W EDEMEYER , JJ., joined.

JulieA. Rice, Knoxville, Tennessee (on appeal); Raymond M. Garner, District Public Defender ; and Shawn G. Graha

m, Assista

nt Dis tri ct Public Defender, Maryville, Tennessee (a t trial), for the appellant, Gregory Scott Allison.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney Genera l; Michael L. Flynn, D istrict At torney General ; an d Kirk E. Andrews, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

Upon his guilty pleas to burglary, a Class D felony, and misdemeanor theft, the defendant

was sentenced t o concurrent sentences of three ye ars and eleven months and twenty-nine days. Upon the defenda

nt servin g thirty da

ys in jail, t

he rema inder of his sente

nces we re to be served on supervised probation. The rec ord ref lects tha t the def endant su ccessf

ully completed his thirty-day jail sentence on May 17, 1998.

In October 1998, the defendant’s probation supervisor filed a probation violation war rant, alleging that

the defe ndant had violated severa l terms of his probation, stating that he had been cited withdriving on a suspended license, had been ch arged w ith aggra

vated bur glary, ha d failed to obtain employme

nt, had failed

to report to his probation officer, and had fail ed to pay c ourt cost s. In July-2-

1999, the trial court ordered that the defendant serve six months confinement for violating probation. In March 2000, the trial cou rt place d the def

endant in to the com

munity correc tions prog

ram, but in April2000, the trial court ordered that the defendant serve seven consecutive weekends in the Blount County Jail for his failure to attend treatment sessions at the Kress Mental Health Center as required by his community corrections contract. The defenda nt serve d five we ekends in jail, and on May 23, 2000, the trial

court ag reed to w aive the

remainin g weeke

nds i f the de fendant

would suc cessful ly complete fifteen months in the Teen ChallengeProgram. The defendant left the progr am after only

one month, a nd on October 31, 2000, the defendant’s community correc tions supervisor filed a violation of co mmunit y corrections affidavit, alleging that the defendant ha d tested positive for marijuana.

At the revocation hearing, Pat Ballard, the defendant’s community corrections supervisor, testified that the d

efenda nt had phy sical, me

ntal, and chemica l depende ncy prob lems. She said that he f ai led to pay court costs, failed to perform community service work, fa iled to attend treatment sessions at the Kress Mental Health Center, and failed to attend her grou p therap y sessions . She said that the defendant did not attend treatment and therapy sessions beca use he had an operation

on one of his club f eet and b ecause

he was sic

k with pne

umonia and bronchitis. She said that although the defendant asked to go into the Teen Challenge Program, his club feet physically prevented him from completing the progr

am. She said th at the de fendant could not b enefit f

rom commun

ity corrections because he did not attend treatment and therapy se ssions.

Ms. Ballard t

estified that the d

efenda nt could always get a doctor’s excuse for missing his appointme

nts. She said that although the defendant needed to attend therapy meetings twice a week, his mother could only bring him once a week. She said that although the defendant ha d been providing her with doctor’s excuses for his missed appointments, he stopped giving her medical excuses in December

2000. She said that after the defendant’s brother died in the f all of 2000, he tested positive for marijuana. She said that the defendant told her that he used marijuan a to help h

im cope with his br

other’s death. She said

that the defendant was mentally depressed and suicidal and that she did not know how to supervise him. She said that the defendant was sick all of the time and that nothing in the community corrections program could help him.

On cross-e

xaminatio n, Ms. Balla

rd test ified that before entering the Teen Challenge Program, the defenda

nt would a

ttend mee tings at the

Kress C e nter when he did not have a medical excuse. She said that the defendant recently had been hospitalized at Lakeshore Mental Health. She said that the defendant needed the benefit of gr oup therapy, which he was not getting.

The defendant testified

that at the time of the hearing, he was twenty-six years old, single, and unemployed. He said that after entering the community corre ctions program in 19 99, his physical and menta

l condition s got worse . He said that his brother and grandmother had died recently and that he did not want to deal with life. He said that he missed his brother.

The defendant acknowledged that he missed some meetings at the Kress Center and that he

was ordere d to serve seven weekends in jail for missing those meetings. He said that he served five-3-

weekends in ja il before

enterin g into the T een Chal lenge Pro gram. He said that i

t was his id

ea to go into the Te en Challe

nge Progr am and tha

t he had th ought the p

rogram w ould help h

im. He sai d that he went to Bluefield, Virginia to pa rticipate in t he progr

am but tha

t he could not comple

te it because he could not work in the mountains with his club feet. He said that he asked to be transportedinto another program where the land is flat but that the Teen Challenge Program

workers in Virginia did not want him to leave their program.

The defendant testified that when he retur ned to Blou

nt County, h

e paid his $2,200 in fines and that Pa

t Ballard told him that he had to start attending her group therapy classes. He said that he missed some of the classes because he had an ope ration on o ne of his f

eet and could not walk. He said that h

e also missed Ms. Ballard’s classes because of his brother’s de ath and because he got sick. He said that he took medication for panic attacks and bipolar disorde r, that he was scared

to ride in a car or

be in grou

ps, and tha

t he did not

go to the grocery store or go out with friends. The defendant acknowl edged fa

iling a dru g test

in October 2000 and said that he smoked marijuana eight days before the revocation hearing. He acknowledge d that if his health and transportation situations had been better, he would have been in a better p osition to keep his app ointments a t the Kre ss Center and with Ms. Ballard.

On cross-examination, the defendant said that he got the marijuana from a high school frie nd, and he acknowledged having a conviction for aggrava ted burgl ary. He

said that h

e did not gradu ate from high schoo l but that he

obtained his GED. H e said tha

t despite his medical problems, he was turned down for federal Social Security benefits. He sa id that his mother had transportation butthat it was not always r eliable. He said

that he had no excuse for smoking marijuana eight days befor e the hearing and that although he had been very sick with bronc hitis, he was never hospitalized.

Carol Noce, th

e defen dant’s mo ther, te stified th at the de fendant had lived withher all of

his life and that

he was bo

rn with club feet. She said that the defendant had been a patient at Overlook Mental Health since he was six years old and that he suffe red from bipolar d

isorder and panic syndr ome. She sai d that about three weeks before the re vocation hearing, the defendant was hospitalized for seven days at Lakeshore Mental Health. She said that the defendant started missing his meetings with Ms. Ballard in September 2000, when his brother died. She said that he missed

more meetings in October, November, and December because hehad a foot operation and because he was sick with bronchitis and pneumonia.

On cross-examination, Ms. Noce said that she did not work o uts ide the home and that she

was willing to take the de fendantto therapy meetings more than once a week. Said that the defendant had never held a job for more than three months. She said that the defendant liked to work outside but that he had not worked in three years. S he said that he used to work for men who installed swimming po ols and cu

t down tre es.

The trial court held that the defendant violated the ter ms of his com munity corrections by failing a drug screen and failing to compl ete the Teen Challenge Program. It noted that the defendant had a “long list” of criminal convictions and that he had used marijuana eight days before-4-

the revocation hearing. The trial court agre ed tha t the d efendant had physical, emotional, and chemical depen d ency problems and that he needed more supervision and tre atment than the community

corrections program could provide. It also stated that the def endant had shown that

he didnot want to

participate in the community corrections program. Finding that the defendant might be able to benefit from the Department of Correc tion’s Special Needs Unit, the trial court revoked the defendant’s probation and ordered that he se rve the remainder of his sentence in incar ceration.

A lthough the defendant admits that he violated the terms of his community corrections program , he contends that the trial court’s disposition of the case was improper. He argues tha t the trial court should have ordered that he be placed into a therapeutic halfway house or serve a period of split confinement followed by placement into an inpatient treatment program in a secured fac ility. The state contendsthat bec ause the community

corrections program could not meet the defenda nt’s needs, the trial court did not err in revoking his probation. We agre e with the state.

The decision to revoke probation is within the discr eti on of the trial court. State v. Grear
, 568 S.W.2d 285, 286 (Tenn. 1978). Upon revoking probation, the trial court has the discreti on to order the original sentence to be served. See Tenn. Code Ann. § 40-35-310, -311(d). An abuse of discretion may be found only if the record contains no substantial evidence to support the conclusion of the trial court. See State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991).

The defendant admitted testing positive f or mariju ana in October 2000 and smoking marijuana again ei ght days be

fore the revoca tion hear ing. The r

ecord r eflectsa consistent failure to complywith reasonab le require ments. The defendant has not demonstrated that the trial court abused its discretion by ordering him to serve the remainder of his sentence in inca rc eration . To the contrary, his admitted drug abuse and refusal to seek tre atmen t for it support the trial court’s decision.

Ba sed upon the foregoing and the record as a whole, w e affirm the judgment of the trial court.

___________________________________ JOSEPH M. TIPTON, JUDGE