### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ma y 11, 200 5
STA TE OF TEN NES SEE v. P ATR ICK L AM ONT BA RKE R

Direc t Appeal from the Circ uit Court for Montgom ery C ounty No. 40200120-04-445 M ichael R. Jones, Judge

No. M2004- 02000-CCA -R3-C D - F iled Jun e 6, 2005

The Def endant, Patric k L amont Ba rker , pled g uiltyto two counts of the sale of .5 g rams or more of a sche dule I I

controlled substanc e. The trial court se ntence d him to eight y ear s on eac h conviction and orde red that the s en t en ces run concur rently and be se rved in c ommunitycorr ections. The Def endant violated the terms of his community corr ections sentenc e, and the trial court or dere d the Def endant to serve the rema inder of his sente nce in prison. The Def endant now a

ppeals. F inding
no err or in the judg ment of the trial c ourt, we a ffirm the D efe ndant’s sente nce. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which N OR MA M C G EE O GL E and A L AN E. G L EN N , J J ., joined.

Russe l l A. C hurch ( at hea ring ) and Rog er E. N ell (on appe al) Clarksville, Te nnessee , for the appellant, Patric k L amont Ba rker

. Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; El iza be th B . M arn e y , A s s i s t ant A tto rn e y Ge ne ra l; J ohn W. C arne y , J r., District Attorney Gene ral; and D aniel B rollier, Assistant District At torney Gene ral, for

the appe llee, State of Te nnessee
.

OP IN ION I. F acts This appea l arises from the revoc ation of the Def endant’ s community corr ections sentenc e and his subsequent inca

rce ration in the T en n essee Depa rtment of Corre ction. On April 19, 2002, t h e D e f e n d a n tp l e d g u i l t y

t o t w o c o u n t s o f

t h e s a l e o f

. 5 g r a m s o r

m o r e o f c o c a i n e , a

s c h e d u l e II controlled substanc e. The trial court sentenc ed the De fenda nt, a Rang e I standard of

fende r, to two concur rent e ight y ear

sentenc es, to be served in community corr ections, and it fined the Def endant $2000.00 for e ach of

the two offe nses. On De cembe r 18, 2002, the trial court issued a violation of community

corr ections wa

rra nt, bas ed on an a ffidavit fr om the community corr ections super visorT he af f i davi t i ndi cat es t hat t he D ef endan t was ar r es t ed on N ovemb er 8, 200 2, for dr i vi ng on a s us pended 1 l i ce n s e, h ar as s men t , a n d t h ef t of pr oper t y ov er $500. 00.

T he t ri al co urt ord ered t hat t he D efend ant s erve 3 6 5 d a ys in th e w o rk h o u se , l e ss c re d it fo r tim e se rv e d

. 2 T h e D ef en dan t h ad 333 da y s cr edi t : 50 day s s er v ed be for e h i s gu i l t y pl ea ; 19 day s s er v ed af t er h i s a r r es t on t h i s v i ol at i on
w a rr a n t; a n d 2 6 4 d a ys se rv e d in the c o m m u n ity c o rr e c tio n s p ro g ra m
. -2- claiming that the De fe n d an t : (1 ) f ai l ed t o s ee k

em p l o y m en t , re m ai n em p l o y ed , o r p ro v i d e v er i fi cation of employ ment; (2) failed to pay his court costs; (3) f

ailed to per form community service work; (4) failed to r eport to the community corr ections office once a wee k; and (5) failed to r emain ar rest fr ee and re port his arre st to the community corr ections office. On November 18, 2003, the Def endant 1 waived his he aring and admitted his violations. Subsequently , the trial court partially revoke d the Def endant’ s community corr ections sentenc e, ordering that the Def endant serve his sentence in the workhouse until Dec ember 13, 2003, at which time he would re turn to communitycorr ections. On 2 Fe bruary 3, 2004, the trial court issued a sec ond violation of communitycorr ections wa rra nt, based on an af fidavit from the D efe ndant’s community corr ections super visor claimin g t h at, af ter the Def endant wa s reinstated to c omm u n i t y co rr ections, t he De fendant: (1) fa iled to report to the community

corr ections off

ice onc e a w eek; ( 2) fa iled to pay his court costs; (3) f

ailed to per form community

service work; and ( 4) fa iled to provide proof of employ ment.
On J u l y 1 4 , 2 0 0 4 , at t h e c o m m u n i t y co rr ec t i o n s v i o l at i o n h ea ri n g, t h e following evidenc e wa s pre s ented: C apri Griffey -Elliott testi fied that she is a supervisor at the Montgome ry /Robertson Cou nty Com mun ity Cor

re c tio ns of

fi c e , an d she wa s ass ig ne d to supe rv ise the De fe nd a nt. She sa id that the Def

endant wa s reinstated to c ommunitycorrections on De cembe r 13, 2003. She testified that the Def

endant wa s require d to report to he r office once a we ek, but he ha d repor ted only once since his re instatement, on Dec ember 16, 2003. Griff ey -Elliott said that the Defe ndant was r equire d to s e e k to se c ur e e mpl oyme nt a nd to pr ov ide pr oo f o f s uc h to he r. She sa id that th e De fe nd a nt d id not provide any

proof that he was see king, or h ad o b tained, employ ment. She testified that the Def endant f ailed to perf

orm require d community

service afte r his reinstateme nt, but she noted that the De fe nd a nt h a d p e rf

orme d com mu ni ty se rv ic e prior to the fi rs t r e vo c a tio n o f h is c omm un ity
corr ections sentenc e. She said that, other than w hen the De fenda nt reporte d on Dec ember 13, she has had no c ontact with the De fenda nt since his reinstateme nt.
On cr oss-examination, Griffey -Elliott ex plained that, if the Def endant had come to he r off ice wh e n s he wa s n ot the re , th e De fe nd a nt w ou ld ha ve sig ne d th e sig n- in s he e t a ndfi lle d o ut a we e kly reporting f

orm that would be plac ed in his file. She said that the De fenda nt’s file conta ins onlyone form, fr om his report on Dec ember 16, and she said that she che cked the sign- in logs but did not see the Defenda nt’s name. Griff ey -Elliott reca lled that, prior to his first revoc ation, the Def endant wa s perf orming community

service by working at t he communit y corr ections office. She confirme d that the Def endan t ’s failure to do communityservice stems from his failure to report be cause the Def endant would ha ve had to r e-e stablish contact bef ore he could be sc heduled to volunteer in the community

corr ections off

ice. She sa id that, when the Def endant reported on Dece mber 16, he had be e n ou t of ja il fo r 3 da y s, a ndhe didno t ha ve a job a t th a t ti me . Sh e te sti fi e d th a t, p ri or to the fi rs t revoc ation, the Def

endant r eporte d that he lived at his fa mily ’s home on Elder Street. The D efe ndant-3-

re po rt e d li vin g a t 60 8 Wa sh ing ton Str e e t aro un d Se pte mbe r 2 00 3, wh ic h w a s a bo ut f orty -f ive to sixty da y s b e f

o r e h i s f i r s tp r o b a t i o n r e v o c a t i o n w arr a n tw a s i s s u e d

. G r i f f e y
- E l l i o t tt e s t i f

i e d t h a t, following his reinstatement, the D efe ndant reported that he lived at 608 Washington Street, and she said that she did not know who else lives at that addre ss.
The De fenda nt testified that he “f el[t] like [he] came in and reported in,” afte r Dec ember 16,
on tw o o c c a sio ns wh e n Grif fe y -E lli ott wa s no t in he r o ff ic e . H e sa id that he inf

orme d G ri ff

e y -E lli ott that he intended to live at 608 W as h ington Stree t, in a two-bedr oom apartment, with his cousin, Nicole Clardy , and her four children, and he said that he sl ept on the l iving room sofa. He sa id that h e w as n o t ab l e to s t ay wi t h C l ar d y fu l l -t i m e be ca u s e C l ar d y an d h erfo u r c h i l d re n , ra n gi n g i n age from one to e ight y ear s old, wanted their privacy . The Def endant testified that his prior reside nce, hi s g r a n d p ar e n t s ’ h o u s e o n E l d e r S tr e e t , w a s a t h r e e b e d r o o m h o m e
. H e s a i d t h a t fo ura du lts , including his mother, and seven or eig ht children lived in the Elder Street home. The Def

endant acknow ledg ed that he never explained to Griff ey -Elliott the difficulties he w as having with his li ving
arr ang ements. He said that he would not be a ble to stay

with his grandmother if he w as re lease d be c a us e his g rand mothe r’ s h ou se wa s re po sse sse d, a nd sh e no w l ive s in a tw o b e dr oo m ho us e wi th
seven or eig ht othe r people. He would also not be able to stay with Clardy

beca use her home is too
crow ded. The Def

endant sa id that he has a n eig hteen- month-old child with his ex -g irlfriend f rom two y ear s prior, and, if reinstated to c ommunitycorr ections, he w ould “re introduce [him] self to stay

. . . with [his ] ba

by ’s mothe r. ” Th e De fe nd a nt t e sti fi e d th a t, a ft e r h e wa s r e ins ta te d to c ommun ity
corr ections in D ece mber 2003, he did not have a full-time job. H e said that he applied for positions cooking , “off and on, here and there.” He ex plained that he also worke d sporadica lly at his uncle’s
c ar w a sh a ndfo r a

frie nd ’s l awn se rv ic e . H e sa id that, a lth ou g h h e ha d f a ile d at c omm un ity
corr ections pre viously , if reinstate d, he would “try to be come the person that [he] g uess[ed] t hat [he] is supposed to be.”

On cr oss-examination, the Defe ndant testified that he spe nt tim e i n j ai l b efor e he w as c on vic te d a ndpla c e d o n c ommun ity c or re c tio ns . H e a dmi tte d th a t he vio la te d c ommun ity
corr ections within the first eig ht months of his sentence. He said that he ha d understood the
re qu ir e me nts of

the c ommun ity

c or re c tio ns se nte nc e , inc lud ing the re qu ir e me nt that he r e po rt to h is community

corr ections super visor once or twice a wee k. The Def endant rec alled that he had se ven or e ig ht p ri or

mis de me a no r c on vic tio ns , and he was pr e vio us ly pla c e d o n p ro batio n f

or tho se offe nses. He a dmitted that he understood the r eporting require ment from his prior probation.

Tanisha Par due testified that the D efe ndant is her one y ear old ch i l d ’s s tep-father, a nd the Def endant is the father of he r unborn child. She said that, befor e the Def endant’ s arr est, he took an active r ole in her life and helpe d support her a nd her c hild. Pardue said that, bef ore the Def

endant
was a rre sted on his probation violation warr ant, h e wa s l i v i n g with her a t her house a t 1138 Commerce Stre et. She said that the Def endant had been seeking employ ment befor e he wa s arr ested. She rec alled that the Def

endant filled out job applications, but she wa s not sure wha t odd jobs he had done because she works two jobs. She explained that she works one day shift job four day s a we ek, and one nig ht shift job five day s a we ek. She said that, despite her busy schedule , she would do what she could to assist the Def

endant in meeting his oblig ations under a community corr ections sentenc e.-4-

On cr oss-examination, P ardue aff irmed that the De fenda nt had lived with her f or the seve n months prece ding the hearing, be tween his re instatement to community corr ections in Dec ember 20 03 a ndhis arr e st o n th e vio la tio n w arr a nt. She sa id that the De fe nd a nt wa s con tr ibu tin g a t le a st $260.00 a month to their expenses during this period of time, and she a ffirme d that the Def endant
was une mploy ed to the best of he r knowledg e.
F oll ow ing thi s e vid e nc e , th e tr ia l c ou rt or de re d th e De fe nd a nt t o s e rv e the re ma ind e r o f h is sentenc e in the Te nnessee Depa rtment of Corre ction. I n doing so, the trial court state d: All rig ht, the evidenc e in this case is that [the Def endant] was release d from jail on Dec ember

13th of l ast y ear and reported on Dec ember 16th. And fra nkly , the proof is that he neve r, eve r dar

kened the doors ag ain.
[The Defe ndant] has testified as to l i v i n g certain place s and that’s be en contra dicted by

the ot her witnesses who t estified -- the t estimony is very cre dible as to what [the Def

endant] has done and hasn’t done. [ Pardue] works very hard w orking two jobs. [ the Def

endant] has not manag ed to g o back to wor k.

There is no proof of any illega l a ctivities on be half of [the De fenda nt] in the
sense of committing new crimes, but he has one violation be fore

. He s er v ed three hu nd re d s ixty -f

ive da y s in ja il.

. . . I

do n’ t se e that I

ha ve a ny re a l a lte rn a tiv e bu t to order that h e s er v e t he sente nce. H e just has not done what he is require d to do. Communi ty

Correc t i o ns is a prog ram that is a substitution for g oing to the penitentiary

and when y ou don’t do what y ou are supposed to do, y ou don’t g ive the Court any alternative. The alternative of split confine ment has alre ady been f ulfilled, I can’ t do that any more. [The Defe ndant] will be re quired to ser ve that eig ht y ear sentenc e in the Tenne ssee De partment of Corr ections.

I t is fr om this jud g me nt that th e De fe nd a nt n ow app e a ls.

II. Ana lys is On appe al, the Defenda nt contends that the t rial court abused its discretion in ordering that he serve th e rema ind e r o f h is s e nte nc e s in priso n. Spe c if ic a lly , h e arg ue s th a t th e tr ia l c ou rt on ly imp os e d th e priso n sen te nc e be c a us e it m ist ake nly be lie ve d th a t it

c ou ld n ot o rd e r f

urthe r s pli t confine ment. The State c ounters that the tria l court did not abuse its discre tion.

Communi ty

corr ections prog rams ar e g overne d by the Tenne ssee Comm u n i ty Correc tions Act of 1985. See Tenn. Code Ann. § 40-36-101 (2003). The revocation of a community corr ections-5-

sentenc e is g overne d by

Tenne ssee Code A nnotated section 40-36-106(e )(4) (2003), whic h provides
a s f oll ow s:
Th e cou rt sh all a lso po sse ss the po we r t o r e vo ke the se nte nc e imp os e d at a ny tim e due to the conduc t of the def endant or the termination or modification of the prog ram to which t h e def

endant ha s been se ntence d, and the c ourt may rese ntence the defe ndant to any

appropriate sente ncing alternative, including incarc eration, for any pe ri odof tim e up to the ma ximum

se nte nc e pr ov ide d f

or the of fe ns e c omm itt e d, le ss any time actually

serve d in any

community -base d alternative to incarc eration.

I n order to revoke a community corr ections sentenc e, the trial court must find by a pre pondera nce of the e vidence that the def endant ha s violat ed t h e terms of the a g ree ment. State v. Har kins, 811 S.W .2d 79, 82-83 (Te nn. 1991). On a ppeal, a re v o ca tion will be upheld absent an a buse of discretion. I n order

for a revie wing court to find an abuse of discretion, it must be shown that the
rec ord conta ins “no substantial evidenc e to support the conc lusion of the trial judg e that a violation of the c onditions . .

. occur red.” I d. Upon revoking the community corr ections sentenc e, the tria l court may , in its discretion, require the Def endant to serve his sentenc e in confine ment. Tenn. Code Ann. § 40-36-106( e)( 4). A t rial court may alternatively order split confinement af ter the r evocation of a c ommunitycorr ections sentenc e. See T enn. Code Ann. §§ 40- 36-106(f ) and 40- 35-306(a ) (2 00 3) ; Ha

rkins , 81 1 S.W. 2d a t 82

. Se c tio n 40 -3 5- 30 6 pr ov ide s that the tr ia l c ou rt ma y or de r u p to one y ear of the de fenda nt’s sentenc e be se rved in c onfinement, with an a lternative se ntence for the
rema inder of time up to the statutory maxi mum. Tenn. Code Ann. § 40-35- 306(a)

. The r ec o rd b ef

o re us indicates that the trial court did not abuse its discretion. At the
revoc ation hearing, the Def endant a dmitted that he was a war e that he w as re quired to report to the
c ommun ity c or

re c tio ns of

fi c e on c e or

tw ic e a we e k, a ndhe on ly

c la ime d th a t he re po rt e d th re e tim e s. His communitycorr ections super visor testified that the De fenda nt reporte d to her off ice only o ne time after his reinstatement to community corr ections. The trial co u rt fo u nd that the Def endant violated the re porting require ment of hi s s en t en ce and that the De fenda nt had not been tr uthful reg arding his living arr ang ements during the time of his reinstated c ommunitycorr ections sentenc e. Thus, there is clear ly

substantial evidence supporting the trial court’s conclusion that the Def endant violated the terms of his communitycorr ections sentenc e. Additionally , the record does not indicate that the t rial court ordere d the Def endant to ser ve his sentence in c onfinement based on a mistaken application of the law. The trial court state d, “[The Def endant] has one violation bef ore. H e ser ved 365 day s in jail. Credit for that. I don’t see a ny al te r n a ti v e b u t t o o r d e r

th a t h e s e r v e th e s e n te n c e
. . . . T h e a lt e r n a ti v e o f s p li t c o n f

in e me n t h as alre ady been f ulfilled, I can’ t do that any more.” The trial court also stated t hat t he Defenda nt “has just not done what he is re quired to do.

. . and when y ou don’t do what y ou are supposed to do, y ou just don’t give the Court any alternative.” Thus, the r ecor d does not clea rly demonstrate that the trial court a cted in opposition to, or based on, a mistake of the law . The sente nce imposed by the court was we ll within i ts discretionary authority . This issue has no merit.-6- III

. Conclusion

I n acc ordanc e with the aforeme ntioned rea soning and authorities, we affirm the judgme nt of the tr ia l c ou rt

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE