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

arch 7, 2001 STATE OF TENNESSEE v. PRESTON FISHER Direct Appeal from the Circuit Court for Chester County Nos. 99-023 and 98-0

23 Franklin Murchison a nd Roger A. Page, J

udges

No. W2000-00906-CCA-R3-CD - Filed April 9, 2001

The defendant, Preston

Fisher, was convicted of

theft of property over $10,000.00. The trial court imposed a Range I, five-year sentence and required service of 120 days in jail, after which the defendant was to be placed upon intensive probation. Following a probation violation by his use of marijuana, the defendant was placed in a Community Corrections programwhich required one year of drug and alcohol treatment at the Synergy Foundation followed by four years of s up ervision. After the defendant failed to pursue treatment at Synergy, the trial court ordered that he serve his sentence in the Department of Correctio

n. In t his appeal of right, the defendant contends that the trial co urt erred

by the revocation

of the Community Corr ections sentence . The judgment is affirmed.
Tenn R. App. P. 3; Judgme nt of the Trial Cour

t Affirmed. G ARY R. W ADE , P.J., delivered the opinion of the co urt, i n which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined. Vanessa D. King, Assistant Public Defender, Jackson, Tennessee, for the appellant, Preston Fisher. Paul G. Summers, Attorne y General & Repor

ter; J. Ross Dy er, Assistant Attorney General; and Shaun A. Brown, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION OnJuly 13, 1998, the defendant entered a guilty plea to one count of theft of property over $10,000.00. The trial court granted probation, which was later changed to Community Corrections supervision. On October 26, 199 9, the defendant was charged with failure to complete drug treatment as required by the terms of his Community Corrections sentence. The trial judge entered anorder of revocation and directed the defendant into the custody of the Department of Correction.1 Judge Murchison enter ed the origi

nal order r

evoking the Community Corr ections sentence on December 8, 1999. Ju dge Pag e, by interc hange , denied th e motio n to recon sider on M arch 28 , 2000.

-2- Shortly thereafter, the defendant filed a motion to reconsider based upon evidence that the director of the Synergy Foundation program had excused the defendant from participation. The trial court concluded that revocation was proper because the defendant failed to explain the requirement of his alternative sentence to the director of the program and because the def endant 's decision to terminate his par

ticipation was unil

ateral. 1 The purpose of the Comm unity Corrections Act of 1985 was to provide an alternative means of punishment for "selected, nonviolent felonyoffenders in front-end community based alternatives to incarceration

." Tenn. Code Ann. § 40 -36-103. The Commu

nity Corrections sentence provides a desired degree

of flexibility that m

ay be both beneficial to the defendant and se

rve legitimate societal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant meets the m inimum requirements of the Community Corrections Act of 1985, however, does not mean tha t he or she is entitled to be sentenced under the Act as a matter of law or right. See State v. Taylor , 744 S.W.2d 919 (Tenn. Cri m. App. 1 987). The followin g offenders are

eligible for Commun

ity Corrections: (1) Persons who, without this option, would be incarce rated in a correctional institution; (2) Persons wh o are convicted of property-related, or drug/alcohol-related felony offenses or

other felony offenses not involving crimes against the person as provided in title 39, chapter 13, parts 1-5; (3) Persons who ar

e convicted of no

nviolent felony of

fenses; (4 ) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved; (5) Persons who do not demonstrate a p rese nt or past pattern of behavior indicating violence; and (6) Persons who do not

demonstrate a pa

ttern of committing v

iolent offenses. Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligible. Tenn. Code Ann. § 40-36-106(a).2 The state argues tha t the i ssue had been wai ved for the f

ailure t o include t

he transcr

ipt of the ori

ginal probat

ion revocatio n proce eding. W e disagree

. -3- Once a defendant violates the terms of his Community Corrections program, the trial court may revoke the sentence and impose a new one: The court shall also possess the power to revoke the sente

nce impose d at any time due to the conduct of the defendant or the termination or modification of the program to which the defendant has been sentenced , and the c ourt may resentence the defendant to any appropriate sentencing alternative, including incarceration, for any period of time up to the maximum sentence provid ed for the offen

se committed, less any time actually served in any community-based alternative to incarceration. Tenn. Code Ann. § 40-36-106(e)(4). The authority to revoke a Community Corrections sentence is based upon the conduct of the defendant while under supervision. Te nn. Code Ann. § 40-36-106(e)(3). A trial judge's decision to revoke a defe

ndant's release

on Community Corrections should not be disturbed unless there is anabuse of discretion. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). In order to find a n abuse of discretion, it must appear that the record contains "no substantial evidenc e to support the conclusion of the t

rial judge that a v

iolation of the con

ditions . . . occurr

ed." Id. The same principles applicable to a probation revocation are relevant to the revocation of Co mmunity

Correct ions. Id. at 83. The trial judge is not required to find that a violation of the terms of probation h as occurred beyond a reasonable doubt. Stamps v. State , 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). Rather, the existence of a vi

olation of probati

on need only

be supported by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(e). Here, the record cons

ists of the transcr

ipts of th e Community Corrections revocation proceedings and the hearing on the motion to reconsider. 2 In the first proceeding, Amanda Wood, anofficer with the Community Corrections program, testified that she had transported the defendant to the Synergy Foundation on September 1, 1999, and that he h ad retur ned to her office two days later. Ms. Woods stated that upon his return, she explained the requirements of the order and then administered

a drug screen. The d efendant acknowledged at that time that he had been using marijuana. The revocation proceeding took place some two and one-half months later. At that time, Judge Murchison re vok ed the defendant's Community Corrections sentence and ordered the defendant to the Department of Correction. Inhis motion to reconsider, the defendant filed an affidavit claiming that the counselor at the SynergyFounda tion told h im that he did not require long-term treatment and that he could leave. The affidavit fu

rther provides a

s follows:-4-

I had asked Mr. Con nelly if he could give me a statement to give to my probation officer. He said that if I needed him to be here to go to Court that he would come. At the hearing on the motion to reconsider, the defendant testified that he had the following conversation with Mr. Connelly before leaving the facility: THE DEFENDANT: Well, I feel like I'm wasting my time and your time by being here because this plac

e is for a year. I

t should . . . be used for somebody who got a serious drug addiction pr oble m like crack or heroin or whatever. MR. CONNELLY: [I]f

. . . [you want] to leave, you [can] pack [your] stuff . .

. and sign out, and they'll take [ you] to the bus station and supply [you] with a bus ticket back home. The defendant also stated that another re aso n he left was that he wasn't supposed to be admitted into the Synergy Foundation in the first place due to his "mental illness problems." The defendant testified that he should have been sent somewhere "that had a dual diagnosis place for me, somewhere where I could have got he lp for my mental problem and . . . my so-called drug addiction problem at the same

time." The trial court concluded that the defendant had no authority to lea ve the long-term drug treatment program. It concluded that the defendant had, i nfact, violated th

e terms of the Commu

nity Corrections order by refusing to participate in the rehabilitation opportunity. There was no abuse of discretion. The record demonstrates that the defenda

nt had previously violated the terms of an order granting probation. At the probation revocation hearing, he requested dr ug treatment . When the court a llowed the defen

dant that opportuni

ty in the Community Corrections program, he chose not to participate, claiming he had noneed for long-term treatm

ent. Inour view, the trial court had no other choice but

to impose the Department of Correction sentence. Accordingly, the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE