# FILED

May 19, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1997 SESSION

STATE OF TENNESSEE, ) No. 03C01-9601-CC-00027 ) Appellee ) ) BLOUNT COUN TY V. ) ) HON. D. KELLY THOMAS, TWIKA TEAGUE, ) JUDGE ) Appellant. ) (Sentencing) ) )

For the Appellant: For the Appellee: Mack Garner John Knox Walkup District Public Defender Attorney General and Repor ter 419 High Street Maryville, TN 378

01 Karen M. Ya cuzzo Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493

Michael L. Flynn District Attorney General Edward P. Bailey, Jr. Assistant District A

ttorney 363 Court Street Maryville, TN 378

04

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge1 This is appel lant’ s name as spelled i n the indi ctment. It is very likel y that

this i s a cleri cal error because the remainder of the court do cuments, as well as the bri efs of the par ties, name the appellant “Tevika Teague.” However , it is the pol icy of this Court to maintai n the appell ant’s name as stated in the indictm ent.

2 Although the transcript from this revocation hearing is not included in the record, the above information is taken fr om the arrest warr

ant, i ts supporti ng documents, and the t rial co urt’s r evocation order which ar

e a part of t he technical record. 2 OPINION
The appellant, Twika Teague, 1 appeals as of right the sentenc e imposed by the Blount County Circuit Court after the revocati on of her placement in community corrections. Appellant w as serving a four y

ear sentence for the offense of robbery, a Class C felony. After revoking her community corrections sentence, the trial court increased her sentence to fiv e years and ordered that it be served in the Department of Correction. Appellant cont ends that the trial court er red in enhancing her ori ginal sentence. We affirm the increased sentence. Appellant was indicted i n October of 1992 on two counts of r obbery. Pursuant to a plea agreement, she pled g uilty to one count of robbery in July of 1993. At her original sentencing hearing, the trial court ordered that appellant serve four years in the Department of Correction, but placed appellant on immediate prob ation. The order of probation required , among other things, that appellant enter counseling for emotional problems she was experiencing, obtain regular employment, report regularly to her probation officer, report any change of address to her probation officer, and make payments to satisfy cour t costs and restitution. O n April 12, 1994, a warr ant for violation of appellant’s pr obation was issued, pri marily based upon information that appellant had been convicted of ch ild abuse or neglect in Carroll County. The w arrant also detailed other viol ations of all the above condit ions. Following a hearing, the trial court revoked appellant’ s probation and directed her placement in community corrections for the remainder of her sentence. 2 Appellant again failed to comply with the conditions of her release and on March 9, 1995, a warrant for violation of community c orrections was iss ued. It was3

premised upon appellant’s v iolation of house arrest, perfor mance of only 32 of 200 required community ser vice hours, failure to mak e payment on costs and restitution, failure to attend GED classes , failure to obtain consent before mov ing to another residence, failure to pay supervision fees, failure t o report to her community corrections officer, and failur e to carry out all or

ders and directions gi

ven by the community corrections officer. A revocation hearing was held in the trial

court on August 29, 1995. Appellant’s community cor rections supervisor , Patricia Ridings, testified at the hearing. Ridings s

tated that appellant’s problems began in December of 1994 when she started missing her group sessions. In addition, appellant changed her residen ce without gaining permission from Ridings. As a result, Ridings placed her on house arrest. Appellant missed three curfew checks in the first week and also repor ted employment which was false upon verification. After much effort, Ridings met wi th appellant once in January a nd once in February. She directed that appellant abide by the terms of her community corr ections and also advised appellant to enter a halfway house. After seeing appellant i n February, Riding s was unable to locate her again. She obtained a warrant for v iolation of community correc tions on March 9, 1995. At some point after issuance of the w arrant, appellant contacted R idings by telephone and indicated that she needed treatment for cocaine. Ridings i nformed appellant that there was an outstanding warrant and that she needed to turn herself in to authoriti es. Appellant failed to do so and Ridi ngs had no further contact w ith her. She was not taken into custody until August 7, 1995. Appellant also testified and admit ted violating the condi

tions of her sentence. She stated that Ridings’ testimony about her viol ations was accurate, ex cept that she did report when she mov ed. Appellant testified that she s tarted using cocaine on October 23, 1994 to celebrate her twenty-first birthday. She explained that her habit was “real, real bad.”

At the time of the hearing, she claimed that she had not used cocaine in four months, but declar ed her willingness

to enter an inpatient drug4

treatment program. In additi on, appellant expressed a des ire to be put into a progr am with constant superv

ision because “I can’t say that I really learned my lesson. . .” She also admitted having a l ong history in the j uvenile courts. The trial court determined that appellant had never follow ed the rules of the community corrections pr ogram or the laws of the St ate. It found that the violatio ns outlined in the warrant were supported by the t estimony. The court also not ed that appellant acquired a drug habit while on community corrections. Based upon those findings, the trial cour

t revoked appellant’s c ommunity corrections sent ence and increased her sentence from four y ears to five years to be served in the Department of Correction. The Community Corrections Act of 1985 permits a trial court to retain jurisdiction over an offender who is placed in the program and to revoke the sentence imposed at any time based upon the o ffender’s conduct. Tenn. Code Ann. §40-36- 106(e)(4) (Supp. 1996). C onsidering the appellant’ s admitted violations and overwhelming proof at the hearing, the trial court was justified in revoking appellant’s placement in co mmunity correcti ons. Appellant does not conte st that ruling. However, appellant do

es challenge the trial court’s enhancement of her sentence from four years to fiv e years. After revoki ng a community correcti ons sentence, the trial court ha s statutory authority

to resentence the defendant for any period of time up to the maximum senten ce provided for the offense committed. Id. See also State v. Griffith , 787 S.W.2d 340, 341-42 (Tenn. 1990). Although an increase is permitted, the new sentence may not ex ceed the range of the origin al
sentence. State v. Patty , 922 S.W.2d 102, 103 (Tenn. 1995). When a trial court resentences an offender after rev ocation of community corrections, the sentencin g must be in accordance w ith the principles and g uidelines of the Sentencing Act. See State v. Michael Alder son , No. 01C01-9404-CC-00120 (Tenn. Crim. App. at Nashv ille, October 17, 1996), perm. to appeal denied (Tenn. 1997). See also Patty , 922 S.W.2d at 103 (applying the 1989 Sentenci ng Act to3 When reviewing only the propri ety of t he trial court’s r

evocation, the appropri ate standard o f review is ab use of d iscretion. State v. Ha rkin , 811 S.W .2d 79, 82 (Tenn. 1991). 5 review of an increased

sentence after revocation of communi ty corrections). A

s with our review of other s

entencing decisions, w e conduct a de novo

review, 3 which is accompanied by a presumption of cor rectness only when the trial court consider ed the sentencing principles and all relevant facts and circumstances. Tenn. Code Ann. §40- 35-401(d) (1990); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In general, the Act requires the tri al court to place on the rec ord the reasons for the final sentenc ing decision, to identify the enha ncing and mitigating factors applicable and the facts supporting application of thes e factors, and to explain how the factors were balanced in determining the sentence. State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994). See also Tenn. Code Ann. §40-35-210 (Supp. 1996) . When a trial court fails to follow th e foregoing procedure, the pr esumption of correctness fails. Jones , 883 S.W.2d at 600. See also State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). In appellant’s case, the trial court did not explicitly delineate the applicable enhancement factors for the increased sentence and the presumption of correctness must fail. Nevertheless, upon our de novo review of the record , we find that a sentence of five years w as justified under the Sentencing Act. The trial court enhanced appellant’s sentence by one year. Appellan t’s offense, robbery, is a Class C felony which has a Range I sentence of three to six years. Therefore, a five y ear sentence does not exceed th e range. See State v. Patty , 922 S.W.2d 102, 103 (Tenn. 1995). Moreover, w e believe it is just ified by the application of two enhancement factor s. Appellant’s actions r eflect a previous unwillingness to c

omply with the conditi ons of a sentence involvi ng release into the community and also that she cont inued engaging in cr iminal behavior. Tenn. Code Ann. §40-35-114(8), (1) (Supp. 1996). Within six months of being placed on probati on, appellant violated the l aw, was convicted of child abuse/neg lect and was servi ng 90 days in jail. Not only was her6

commission of this offense violati ve of her probation, her failur e to report it to her probation officer was also a violation. Appellant had committed numerous other infractions, including he r move to another part of the Stat e without permission. A fter being placed in community corrections, she again took advantage of the large sse of the court. Only five months after that placement, appe llant violated “virtually every rule of her Community Corr ections Program agreement, including absconding. ” After being informed of the outstanding w arrant, appellant refused to tur n herself in to authorities. Appellant has shown little respect for the leniency of the trial court, demonst rated by re peatedl y failing t o comply wit h the con ditions o f the alt ernative sentences granted by the trial court. Clearly, she has demonstrated an unwillingness to comply with the cond itions of a sentence involv ing her release into the community. Her use of cocaine and convi ction for child abuse/neglec t exhibit criminal behavior and also must be cons idered in enhancing her se ntence. See Tenn. Code Ann. §40-35-114(1) (Supp. 1996) ; State v. Michael Alder son , No. 01C01-9404-CC00120 (Tenn. Crim. App. at Nashv ille, October 17, 1996), perm. to appeal denied (Tenn. 1997). Appellant contends that no change in circumstanc es affecting the enhance ment fa ctors has occurred since her original se ntencin g. Unfort unately, we cannot so easily over

look appellant’s subsequent conviction for child abu se/neglect, her sustained cocaine addicti on, and her unwilling ness to abide by the terms and conditions of her sentence. Included in the record before us was the entire his tory of this robbe ry charge against appellant, from the indi ctment to the last order of enhanced s entence. The record contained the presentenc e report, the copies of arrest warrants and supportin g affidavits from probation and community correction officers, as w ell as the transcript from the last revocation hearing. The extensive information available in the record4 We note that the comprehensive na ture of t he record before us disti nguishes appel lant’ s case from the m any in which rema nd is requ ired due to an inade quate re cord. See e.g. State v. Bru ce C ole , No. 02C 01-951 0-CC -00290 (Tenn . Crim. A pp. at Jac kson , Decem ber 10, 1 996); State v. Kenneth W. Ervin , No. 03C 01-951 0-CC -00325 (Tenn . Crim. A pp. at Kno xville, Octob er 30, 19 96); State v. Danny Walker , No. 02C 01-950 8-CC -00225 (Tenn . Crim. A pp. at Jac kson , Septem ber 30, 1 996); State v. Ke ith F. Batts , No. 01C01-9210-C R-00326 (Te nn. Crim. App. at Nash ville, February 18, 1993). 7 facilitated our de novo

review. The appellant’s increased sentence is proper. 4 The sentence is affirmed.

_______________________________ William M. Barker, Judge

____________________________ Joseph M. Tipto n, Judge

____________________________ Curwood Witt, Judge