IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 24, 2012

STATE OF TENNESSEE V. JOSHUA DANIEL BROOKSHIRE

Direct Appeal from the Criminal Court of Hamilton County

Nos. 276166, 276177-79, 276471 Rebecca J. Stern, Judge

No. E2011-01658-CCA-R3-CD - Filed February 28, 2012

Joshua Daniel Brookshire (“the Defendant”) pled guilty to five counts of burglary of an

automobile and entered nolo contendere pleas to two additional counts of burglary of an

automobile. The trial court sentenced the Defendant as a Range I offender to concurrent

terms of two years to serve in the Tennessee Department of Correction on each of the seven

counts. The Defendant then reached his determinate release date and was released onto

supervised probation. Subsequently, a probation revocation warrant was issued alleging that

the Defendant had violated his probation by committing new driving offenses, changing

residences without informing his probation officer, failing to report, failing to obtain

permission to leave his county of residence, and failing to pay his probation fees. The

Defendant was taken into custody, and the trial court later conducted a revocation hearing.

At the conclusion of the hearing, the trial court revoked the Defendant’s probation and

ordered him to serve his remaining sentence in confinement. The Defendant has appealed

the trial court’s ruling. Upon our careful review of the record, we affirm the trial court’s

judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment

of the Criminal Court Affirmed; Remanded

JEFFREY S.BIVINS,J., delivered the opinion of the Court, in which NORMA MCGEE OGLE and

ROBERT W. WEDEMEYER, JJ., joined.

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee, Assistant District Public

Defender (on appeal); and Blake Murchison, Assistant District Public Defender (at trial),

Chattanooga, Tennessee, for the appellant, Joshua Daniel Brookshire.

Robert E. Cooper, Jr., Attorney General & Reporter; Leslie E. Price, Assistant Attorney

General; Bill Cox, District Attorney General; Brian Finlay, Assistant District Attorney

General; for the appellee, State of Tennessee.
OPINION

Factual and Procedural Background

On September 2, 2010, the Defendant pled guilty to five counts of burglary of an

automobile. On the same day, he pled nolo contendere to two additional counts of burglary

of an automobile. In accordance with the terms of the plea agreement, the trial court

sentenced the Defendant as a Range I offender to two years on each conviction, to be served

concurrently in the Tennessee Department of Correction. The Defendant later reached his

determinate release date and was released onto supervised probation in November or

December 2010. See Tenn. Code Ann. § 40-35-501(a)(3) (2010).

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On May 16, 2011, the State of Tennessee Board of Probation and Parole filed a

probation violation report alleging that the Defendant had absconded and had been arrested

for driving offenses and for failure to appear. The Defendant was taken into custody. At

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the probation revocation hearing held on August 1, 2011, the trial court heard the following

proof.

Yukiko Howard testified that she was a probation officer with the Tennessee Board

of Probation and Parole. She handled the paperwork effectuating the transfer of the

Defendant’s probation from Tennessee to Catoosa County, Georgia. After his transfer, the

Defendant failed to report to his Georgia probation officer. Additionally, he was arrested on

driving chargesin Hamilton County, Tennessee. Moreover, his presence in Tennessee meant

that “he was out of his jurisdiction without permission.” In addition to the driving charges,

the Defendant also had been charged with two counts of failure to appear. Howard

subsequently filed the probation revocation warrant based on these developments.

On cross-examination, Howard acknowledged that the charges on the driving offenses

had been dismissed. She also clarified that the Defendant had failed to report to his Georgia

probation officer on March 16, 2011. The Defendant had reported to his Tennessee

probation officer prior to his transfer.

 The probation violation report indicates that the Defendant’s “date of probation” was November 1

18, 2010. Testimony at the revocation hearing indicated that he was placed on probation in December 2010.

 Specifically, the warrant alleged that the Defendant had been charged with driving on a revoked 2

license, a registration violation, a seat belt violation, and two counts of failure to appear. The driving charges

were subsequently dismissed. Additional allegations included changing residences without informing his

probation officer, failing to report, failing to obtain permission to leave his county of residence, and failing

to pay his probation fees.

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The Defendant testified that he was living with his wife and child in Catoosa County,

Georgia, at the time the probation violation warrant was filed. According to the Defendant,

he reported to the Georgia probation office in December 2010 and January 2011, but “never

[met] a probation officer.” He explained that the office told him they would contact him

about when and to whom to report, but never did. He testified that he was not aware that he

was supposed to report on March 16, 2011.

The Defendant acknowledged that he had pled guilty to two charges of failure to

appear and was serving the resulting jail sentence. His “out date” on the jail sentence was

August 10, 2011. He acknowledged that he had violated his probation. He asked to have his

probation reinstated so he “could get on with [his] life.” He added that he would be able to

return to his welding job “on East 12th Street” if he were released from jail.

On cross-examination, the Defendant acknowledged that a probation officer in

Catoosa County had called his wife after he failed to report on March 16, 2011, and that his

wife told the officer that she had “kicked” the Defendant out of their house. He stated that

he and his wife were both evicted from the house they had been living in. He also explained

that he had pending a credit card fraud charge.

After considering this proof, the trial court ruled as follows:

I find that [the Defendant] violated probation by absconding, getting

two convictions for failure to appear, and also apparently working in Hamilton

County and getting arrested in Hamilton County outside his supervised

jurisdiction. The petition to revoke is sustained. His sentences are ordered

into execution. He’ll be given credit for time served.

This appeal followed.

Analysis

The Defendant was placed on probation pursuant to Tennessee Code Annotated

section 40-35-501(a)(3), which provides that, “[n]otwithstanding any other provision of law,

inmates with felony sentences of two (2) years or less shall have the remainder of their

original sentence suspended upon reaching their release eligibility date.” Tenn. Code Ann.

§ 40-35-501(a)(3) (2010). This form of release is known as “determinate release.” State v.

Laurie Zimmerman, No. 01-C-01-9302-CC-00044, 1993 WL 311534, at *4 (Tenn. Crim.

App. Aug. 12, 1993). “Suspension of sentence in this manner shall be to probation

supervision under terms and conditions established by the [D]epartment [of Correction].”

Tenn. Code Ann. § 40-35-501(a)(5). Upon a defendant violating the terms of his or her

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probation, the sentencing court “is authorized to revoke probation pursuant to the revocation

proceedings of [section] 40-35-311.” Id. § 40-35-501(a)(7)(A).

Tennessee Code Annotated section 40-35-311 provides that, upon a probation

revocation proceeding, the court “may enter judgment upon the question of the charges as

the trial judge may deem right and proper under the evidence adduced before the trial judge.”

Tenn. Code Ann. § 40-35-311(d) (2010). And,

[i]f the trial judge finds that the defendant has violated the conditions

of probation and suspension by a preponderance of the evidence, the trial judge

shall have the right by order duly entered upon the minutes of the court to

revoke the probation and suspension of sentence, and:

(A) Cause the defendant to commence the execution of the judgment

as originally entered, or otherwise, in accordance with [section] 40-35-310; or

(B) resentence the defendant for the remainder of the unexpired term

to any community-based alternative to incarceration authorized by chapter 36

of this title; provided, that the violation of probation and suspension is a

technical one and does not involve the commission of a new offense.

Id. § 40-35-311(e)(1). See also State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999). Thus, the

State need prove that the defendant violated the terms of his or her probation by only a

preponderance of the evidence. In this regard, “[t]he trial judge has a duty at probation

revocation hearings to adduce sufficient evidence to allow him [or her] to make an intelligent

decision.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). See also State

v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (“The proof of a probation violation need not

be established beyond a reasonable doubt, but it is sufficient if it allows the trial judge to

make a conscientious and intelligent judgment.”) (citing State v. Milton, 673 S.W.2d 555,

557 (Tenn. Crim. App. 1984)).

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In Harkins, our Supreme Court stated that, “[i]n order for a reviewing court to be warranted in 3

finding an abuse of discretion in a probation revocation case, it must be established that the record contains

no substantial evidence to support the conclusion of the trial judge that a violation of the conditions of

probation has occurred.” 811 S.W.2d at 82. However, a recent panel of this court pointed out that “the

statute governing probation revocation in effect at the time of . . . Harkins . . . contained no specific burden

of proof to be met before the trial court could revoke probation.” State v. James Edward Farrar, Jr., No.

M2011-00838-CCA-RM-CD, 2011 WL 2582963, at *3 (Tenn. Crim. App. June 30, 2011), perm. app. denied

(Tenn. Oct. 18, 2011). As the Farrar court noted, our statutes now permit the trial court to revoke probation

upon finding by a preponderance of the evidence that the defendant has violated the terms of his or her

(continued...)

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On appeal, we will not disturb the trial court’s decision to revoke probation absent an

abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v.

Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). We will grant relief only when “‘the

trial court’s logic and reasoning was improper when viewed in light of the factual

circumstances and relevant legal principles involved.’” Shaffer, 45 S.W.3d at 555 (quoting

State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

We see no abuse of discretion under the proof adduced in this case. The trial court

revoked the Defendant’s probation upon its finding that the proof established that he had

absconded and been convicted of two new offenses. The proof is more than sufficient to

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support the trial court’s conclusion. The proof established that the Defendant had been

located – and arrested – in Hamilton County after his probation had been transferred to a

different county in a different state. The Defendant also admitted that he had failed to report

to his Georgia probation officer. Additionally, the Defendant admitted to having pled guilty

to two charges of failing to appear. Therefore, the trial court acted within its discretion in

revoking the Defendant’s probation and ordering him to serve the remainder of his sentences

in confinement.

The Defendant argues that the trial court abused its discretion “in simply revoking

probation without considering alternatives such as Intensive Probation, extended probation

or Community Corrections” and because the judge “made no finding of fact that she had

considered alternatives such as previously mentioned.” The Defendant cites the recent cases

from this court of State v. Tiffany Nicole Nance, No. E2011-00492-CCA-R3-CD, 2011 WL

4995234 (Tenn. Crim. App. Oct. 20, 2011), and State v. Arthur Donahue, No. E2011-00208-

CCA-R3-CD, 2011 WL 4618093 (Tenn. Crim. App. Oct. 6, 2011), in support of this

argument. We do not read those cases as in any way establishing such a requirement on the

trial court. Rather, these opinions simply discuss the options a trial court has when it revokes

a defendant’s probation.

(...continued) 3

probation. Therefore, we join the Farrar panel in “question[ing] whether the ‘no substantial evidence’

language of Harkins remains applicable to the determination whether the trial court abused its discretion

when revoking probation.” James Edward Farrar, Jr., 2011 WL 2582963, at *3.

This Court previously recognized the definition of “abscond” as “[t]o go in a clandestine manner 4

out of the jurisdiction of the courts, or to lie concealed, in order to avoid their process. To hide, conceal, or

absent oneself clandestinely, with the intent to avoid legal process.” State v. Timothy Wakefield, No.

W2003-00892-CCA-R3-CD, 2003 WL 22848965, at *1 (Tenn. Crim. App. Nov. 25, 2003) (quoting Black’s

Law Dictionary 8 (6th ed. 1990)).

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Moreover, we are unaware of any requirement from any other authority that the trial

court make findings that it considered such alternatives prior to revoking probation and

ordering that the defendant serve the remainder of his or her original sentence in

confinement. Cf. State v. George Vincent Ware, No. E2010-00141-CCA-R3-CD, 2010 WL

3448057, at *3 (Tenn. Crim. App. Sept. 1, 2010), perm. app. denied (Tenn. Jan. 12, 2011)

(noting, in response to the defendant’s contention that the trial court should have considered

other sentencing options prior to revoking probation, that “[n]o such requirement exists”).

We decline to impose, sua sponte, such an additional burden on trial courts considering

whether to revoke probation.

Conclusion

The trial court did not abuse its discretion in revoking the Defendant’s probation and

ordering him to serve the remainder of his sentences in confinement. Accordingly, the

judgment of the trial court is affirmed. We note, however, that the amended judgment order

on case number 276177 indicates that the Defendant pled guilty to this charge. The petition

to enter plea of guilty and nolo contendere and the original judgment order indicate that the

Defendant pled nolo contendere to this charge. Therefore, we remand this matter to the trial

court for correction of the amended judgment order entered in case number 276177.

_________________________________

JEFFREY S. BIVINS, JUDGE

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