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

Briefs A ugust 6, 2002
STATE OF TENN ESSEE v. WILLIE NEAL BU RTON
Appeal from the Circuit Court for Chester County No. 01-106 Roger A. Page, Judge

No. W2001-02997-CCA-R3-CD - Filed Septem ber 5, 2002

The defendant, Willie Neal Burton, appeals as of r ight fro m the Chester County Circuit Court’s revocation of his community corrections sentence. The trial court found that he had violated the terms of his community corrections sent ence b y conduct unbec oming good citizenship, involving arrestsand convictions for subsequent off enses wh ile serving his community corrections sentence. It sentenced the defendant to a six-year sentence as a car eer offender. The

defendant contends that the trial court erroneously

revoked his community corr ections sentence and tha

t the resultin

g six-year sentence is excessive. We affirm the trial court’s revoca tion and sentence. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined. George Morton Googe, District Public Defender, and Nina WongSeiler, Assistant Public Defender, for the appellant, Willie Neal Burton.

Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The defendant pled guilty to burglary

of an automobile, a Class E felony; theft of propert y valued under $500, a Class A misdemeanor; possession of drug paraphe rnalia, a Class A misdemeanor; and resisting arrest, a Class B misdemeanor. For the felony , he agreed to a six-y ear sentence as a Range I

II , career offender, whic

h was above the range for which he qualifie d. He als o agreed to concurr

ent sente nces of e leven mon

ths, twenty-nine day s for the misdemeanors. All of the sentences were to be served on community corrections. He began ser ving his community corrections sentence on August 22, 2001. On October 5, 2001, a warrant issued for his arrest for violating the terms of his community corrections sentence. Th e warrant and subsequent violation report stated-2-

that the defendant

had failed to pay

court costs andfines, to

verify his employ

ment, to re

main arrestfree, and to re

port his ne

w arres t to his case officer. The violation report noted that the defendant’s father had told a case officer that the defe n dant had a roofing job and that the defendant provided proof of payment of c osts upon his incarceration. In the intere st of saving time at the revocation hearin g, the state

limited the grounds to the defendant’s failure to report his subsequent arrests and to his convictions for offenses committed after he was place d on community corrections.

At the revocation hearing, Jamie Hurst, the defenda nt’s community corrections case officer, testified that

shortly after the defendant bega

n his community corrections sentenc e, he was arrested
on S eptemb er 24, 2001, for theft of property under $500, occurring on that day . She said that the defendant pled guilty to this offense and was convicted on September 26, 2001. She stated that she
was present

in court w

hen the de

fendant ente r ed this plea. She stated that the defendant’s second arrest occurred on November 9, 2001, for two counts of attempted forgery of an amount over $500 occurring on September 13, 2001. She said that he pled guilty to these o ffenses on Nove mber 9. Ms. Hurst said that he did not report either o f these ar rests to he

r as req uired by the termsof his community

corrections sentence. She acknowledged that the reason the de fendant did not

report the
ar rests to her was that he was in jail from the time of the September 24 arre st, b ut she stated tha t individua ls placed in the community cor rections program were told to h ave an other person report an arrest to their case officer

. Ms. Hurst testified that

the defendant had told her that he was addicted to cr ack cocaine. She said that when she was first assigned to the defenda nt’s case, he was still in jail and told her that he needed drug treatmen t. She said that afte r he was releas ed from ja il and put o n community
corrections, she told him that she had found an available bed at a long-term, inpatient drug trea tment facility in Memphis, Tennessee. She said that at that time , the def

endant to ld her tha

t he need ed to be with his family and that he was g oing to attempt to overcome his drug addiction on his own. She said that she asked the defendant to contact her i f he ch anged his mind but that she heard nothing
more on the subject until the defendant had been incarce rated fo llo wing his Septembe r 24 arr est. She said a

t that time, he told he

r that he was willin g to par

ticipate in drug t reatmen t.
She stated that the defendant had told her that he was working as a roofer . She said that once the defendant’s father called her and told her that the defendant was on a roofing job. She said that other than this te

lephone c all, she h ad not bee n able to v erify

the defe ndant’ s emplo yme

nt. Ms. Hurst testifie d that at th

e time the vio lation w arrant issued, the defendant had not paid any court costs but that when she saw him in jail, he produced a receipt showing that he ha d made his $50 pay ment.
The defendant testified that he agreed to a sentence above his range f or the present convictions in order

to be released from

jail. He s aid that he thought he woul d abide by the terms of his community corrections sentence but that he violated them because of his addiction to crack cocaine. He stated that after being rele ased from jail into community corrections, he worked for his father doing ro ofing f

or thirty to thirty -five da

ys u ntil he wa s arres ted and pu t in jail. He said that his father told Ms. Hurst about his employment as a roofer. She stated tha

t whi le on comm

unity-3-

corrections, he stole p

roperty valued under $500 in order to sell it to get money with which to buy drugs. He said that

he also forged someone else’s checks, cashed the checks, and used the money to buy drugs. The

defendant said that he wanted drug treatment and was willing to st ay in a lon gterm, inpatient facility. He state d that he had been in the Department of Correction (DOC) several times and belie

ved that d rug tre atment would helphim more than spending time in prison. He stated that he had complied with all of the other terms of his commun

ity corrections sentence except for his new arrests.

On cross-ex amination, the defendant admitted to convictions for agg ravated assault and carry ing a deadly w eapon, for

wh ic h h e r ec ei ve d s en te nc es of fo ur -ye ar s a nd el ev en mo nt hs , t we nt ynine days respe ctive ly on Ju ly 24, 19 89. He ackno wledge d that h e was convicted of agg ravated burglary and theft of property

valued under $500 and that he received sente nces of four y ears and eleven months, twenty-nine day s respectively on A ugust 26, 1992. He agreed that he was convicted for robbery a nd possession of drug paraphernalia, for which he received sentences of six y ears and eleven months, twenty-nine days on Marc

h 16, 1995. He said that he was placed on probation for
some of these offenses, that his probation was revoked, and tha t he went to prison. He said that he also had a drug problem at the time he committed these other

offenses. He admitted that at one time, Ms. Hurst offered to help him enter a drug tr eatment program. He said that he n ever refused treatment but that he simply did not decide to go a tthat time. He stated that he told Ms. Hurst that he would enter treatment now.

The trial court

found that the defendant had violated his community corrections sentence by his conduct unbecoming good citizenship and his subsequent convictions on September 26, 2001, and November 9, 2001. It re voked the defenda nt’s commu

nity corrections sente

nce and ordere d him to serve a six-yea

r sentence in the DOC. It stated that it would recommend drug treatment and the Special Needs Unit for the defendant while incar cerated.

Alth ough the defendant admits that he violated the terms of his community corrections sentence, he conte

nds that the trial c ourt’s dis position of the case was impro

per. He argue s that in light of his addiction to crack cocaine and his willingness to submit to long-term dr ug treatment, the trial court should have imposed an alternative to continuous confinement such as lon g-te rm drug treatme nt, shock incarceration

followed by drug

treatme nt, additio nal condi

tions for h is communit

y corrections sentence, or a term of probation following drug tre atment. The state contends that the trial court did not err in revoking the defendant’ s commun ity cor rection s sentenc e becau se overwhelming evidence existed that he violated its terms. We agr ee with the state.

Trial courts ha

ve the au thority to revoke a community c orrections sentence upon finding by
a preponderance of the evidence that the defendant has violated the conditions of the sentence. State
v. Harkins , 811 S.W.2d 7 9, 82 (Te nn. 1991) ; see Tenn. Code Ann. § 40-35-311. If the evide nce of
a violation is sufficient to enable the trial court to make a conscientious and intelligent judgme nt regarding revocation, that judgment will not be disturbed on appeal. Id. At the revocation hearing in the pres ent case , the def endant admitted t

hat he had vio lated the

terms of h

is communit

y corrections sentenc e by

acquiri ng his sub sequent a rrests and convictions. The evidenc e from Ms.-4-

Hurst, who was present when the defendant pled g uilty to the September 24 offense s, and the defendant is more than sufficient to allow the trial court to exercise its discretion intelligently and conscientiously in revoking the defendant’s community corrections sentence.

The def endant a lso contends that the trial court’s imposition of his orig inal sente

nce of si x yearsin continuous confinement as a Range I II offender was excessive in light of the circumstances surrounding his violations. He asserts that the trial court had the authority to r ed uce his sentence under Tenn. Code Ann. § 40-36-106(e)(4) and maintains that an appropriate sentence would have been four yea

rs as a Range I

I offender. H e argues that the trial court should hav e considered his potential for rehabilitation as reflected in the circumstances of

the new o ffense s as they

related to his drug addictio n, his demo nstrated need for drug treatment, his status as a nonviolent offe nder, and the fact tha

t his condu ct neithe

r cause d nor thre atened s erious bo dily injur y. He ar

gues that he should have been all owed to c ontinue w orking t o provide for his fa mi ly a nd co nt ri bu te to so ci et y. The state points out that the defendant pled guilty and agreed to a sentence

of six years at Ran ge III. It con tends that this fact along with the defendant’s previous inability to comply with a sentence involving releas e into the community

reveal that the trial court did not err in imposing the orig inal, agreed sentence. We ag

ree with the state.

The defendant agreed to b e senten ced as a caree r offen der. The

fact tha t he failed his community

correc tion s obl igati ons di d not change the agreement. The defe ndant admitted that he violated the terms of his community corre ctions sentence by acquiri ng new a

rrests a nd convic tions. Even considering the sentencing principles, we are n ot impress ed by the def endant’s claims of amenabi lity

to rehab ilitation. The def endant te st ified th at he wa s addicte d to drug s during his commission of numerous crimes before those in the present case. Despite this long-term addiction, the defendant chose not to pursue drug treatment when his case offic er attempted to arra nge it. T his in combination with the defend ant’s inabi lity to abide by the terms of earlier sentences involving releas e in to the community reveal that the tr ial court did not abuse its discretion in imposing the original sentence.

Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court revoking the defendant’s community corrections sentence and imposing his origina l sentence.

___________________________________ JOSEPH M. TIPTON, JUDGE