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

Briefs A pril 9, 200 2
STATE OF TENN ESSEE v. ELWOOD JEFF REY BARRIGHER

Direct Appeal from the Circuit Court for Obion County No. 9-416 William B. Acree, Jr., Judge

No. W2001-02238-CCA-R3-CD - Filed April 19, 2002

The Appellant, Elwood Jeffrey B arrigher, appeals the judg ment of the Obion County Circuit Court revoking his place

ment in the

Community

Correct ions prog ram and r einsta ting h is original nine-y ear sentence in the Department of Correction. Prior to his revocation, Barrigher was ser ving a nine-y ear Community

Corrections sentence, which stemmed from his 1999 c lass B felony conviction for delivery of a Schedule II

controlled substance. Finding no abuse of discre tion, we affirm the revocation. Tenn. R. App. P. 3; Judgm ent of the Circuit C ourt is Af

firmed.

D AVID G. H AYES , J., delivered the opinion of the court, in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined. Joseph P. Atnip, Di strict Publ ic Defender, Dresden, Tennesse e, for the Appellant, Elwood Jefffrey Barrigher.

Paul G. Summers, Attorney General and Reporter ; Mi chael Moore, Solicitor General; Braden H. Boucek, Assistant Attorney General; Tho m as A. Thomas, Distr ict Attorn ey Gene ral; and Kevin McAlpin, Assistant District Attorney General, for the Appellee, State of Te nnessee.

OPINION

Factual Ba

ckground

On June 28, 2001, a Com m unity Corrections Violation Report was filed a lleging that the Ap pellant had teste d positive

for drug use and f

or failin g to make

any pay ment towa

rd his cour t ordered cost and restitution. After a hearing on July 13, 2001, the trial court revoked

the Appellant’s placement

in the Commu

nity Correct ions prog ram and o rdered him to serve the balance of his nineyear se ntence in the Department of Correction.-2-

In this appeal, the Appellant asserts that the trial court abused its discretion by “sentencing him to the Department of Correction rather than giving him another chance under the super vision of Westate Corrections Network,” the local Community Correct ions pr ogram. Specifically, the Appellant argue s that “hisunusual pa renting circumst ances c all for an unusual measure of leniency,” and further asserts that he

should have been given

long-term drug treatment instead of inc arceration.

The law concerning revoca tion of a Co mmunity

Corrections sentence is clear. The trial cour t has the discretion to revoke a Community Corrections sentence upon a finding that the defenda nt has violated the conditions of his behavioral contract. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). Before a defendant may

be revoked, however, the rec ord must c ontain suf ficient e vidence to permit the trial court to make an intelligent and conscient ious decision. Id. On appeal, the trial court’s decision will not be disturbed absent a finding that the trial court abused its discretion. Id. To find
a n abuse of discretion, the reviewing cour t must conclude that the record contains no substan tia l evidence to support the conclusion of the trial court that the defendant violated the terms of t he Community Corrections progra m. Id.

At the revocation hearing, the State pr esented the testimony of Gle nda Hubbard, the Appellant’s Community Corrections case off icer. Ms. Hubbard testified that the Appellant had failed to make any pa

ym ents to the court toward court-ordered costs and r estitution in direct violation of Rule 4 of the behavioral contract signed by the Appellant. The proof further established that approxima

tely six months after completing an inpatient treatment program

in the Veterans Hospital in Memphis for drug addiction, the Appellant tested positive for the use of mar ijuana. The Appellant
was then admi tted to the Serenity Recover y Ce nter in Me

mphis for a

ddit ional substanc e abuse treatme nt. He failed to complete the prescribed cours e of trea tment at the Serenity Center. Following the Appellant’s departure from the Serenity Center, he twice tested

positive for cocaine and marijuana

use. The behavioral condition violations for drug use are based upon the Appellant’s
use of drug s followin g his releas e from the Serenity Center. T

he Appel lant, testifying on his own behalf, admit ted to usin g n arcotics while serving his Community

Correct ions sente nce. Non etheles s, the Appellant again requested place ment in long-term drug rehabilitation in lieu of incarc e ratio n because he was a single par ent responsible for the care of his fifteen- year- old daughter.

In revoking the Appellant’s placement in the loc al Community

Correct ions prog ram, the trial court found that, [a]ccording to the file, the defendant has rec eived dr

ug trea tment two d

iffere nt times, at the Veteran’s Hospital, and then at Serenity , a nd it hasn’t done any g ood. . . . I understandy ou have a dr ug problem, but the efforts so far haven’ t done any g ood, and I don’t re ally

think y ou are r

eally interested at this time in doing any thing about your drug problem. May

be you ca n’t. I don’t know. As I previously stated, on two different occasions, you’ve

received treatment since

you have be en sentenced by this Court. . . . I can’t allow y ou to remain on Westate Corrections and violate the progra m. If I all owed y

ou to do that, everybody

would do it. There’s really nothing-3-

elseto do with you

other than send you to the Depa rtment of Correction, which I’m going to do. You are resentenc ed to the Tennessee Department of Correction.

We agree with the

trial court’s reasoning. The behaviora l contract signed by

the Appellan

t states, “[a]nyviolation of the rules is a serious matter and could result in the revocation of you r Community Corrections sentence.” Thus, the Appellant was well aware that his actions could lead to the revocation of his Community Corrections sentence. The record before us contains more than sufficie nt p roof to support the trial court’s decision that enrollment in another drug- treatment program was not a viable choice, as the Appellant had twice failed such programs. Furthermore, the Appell ant’s contr actual obligations to the Community Correc tions program are in no way altered because of his status as a single parent.
CONCLUSION

We find that t

he trial c ourt did no t abuse itsdiscreti o n by re voking the Appellant’s Community

Corrections sentence and ordering incarc eration . The judg ment of the

Obion Coun

ty Circuit Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE