### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs A

ugust 21, 2001
STATE OF TENNESSEE v. SCOTT RA Y ANDERSON
Direct Appeal from the Circuit Court for Blount County Nos. C-11636, 37, 38 D. Kelly Thomas, Jr., Judge

No. E2000-03040-CCA-R3-CD September 19, 2001

The defendant appeal s the judgme nt entered by

the Circuit Court of

Blount County

revoking his community

corrections sentence. The sole issue on appeal is whether the court abused its discretion in ordering the de

fendant to serve

the remainder of

his se ntence i n the penitentiary. After careful review, we affirm the trial court’s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the c ourt, in whi ch G ARY R. W ADE , P.J., and J OHN E VERETT W ILLIAMS , J., joined.

Steve McEwen, Mountain City, Tennessee (on appeal ) ; Raymond Mack Gar ner, District Publi

c Defender; and Shawn G. Graham, Assistant District Public Defender (at tri al), fo r the appellant, Scott Ray Anderson.

Paul G. Summers, Attorney G eneral and Repor

ter; Peter M. Coughlan, Assistant Attorney Genera

l; Michael L. Flynn, District Attorney G eneral ; and William R. Reed, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

DISCUSSION The defendant, Scott Ray Anderson, pled guilty to three charges of theft of pro p erty over $1000, a Class D

felony. On September

27, 1999, the trial court imposed an effective sentence of ten years, with 168 days to be served in loca l confinement and t

he balance in co

mmunity corrections. After an eligibility report was filed with the court, the defendant was rele ased periodically under the supervision of th e Communi ty Corrections Program to attend scheduled Alcoholics Anony mous meetings and anger management classes. The defendant was released from jail on April 25, 2000, and was then placed in the ETHRA Community

Corrections Prog

ram to serve the r

emainder of his sentence.1 T he order of in carceratio n states that the defend ant was se ntenced to six wee kends in jail as a result of h is

unscheduled absences. However, we note that, at the revocatio n hearing , both the d efendan t and his co mmu nity correcti ons supervisor test

ified that the six-weekend jail sentence was the result of his arrest for aggravat ed assaul

t on August 6, 2000.
-2- On August 15, 2000, the trial court entered an order of incarceration ordering the defenda nt to serve six weekends in jail as a result of three unexcused absences from his day treatment program. 1 In the revocation warrant filed on October 6, 2000, the State alleged that the defendant had violated the terms

of his community corrections sentence by: (1) being arrested

for aggravated assault on August 6, 2000; (2) failing to complete the six weekends in jail as orde red b y the trial court on August 15, 2000; (3) failing to m aintain employment; (4) failing to pay cour t costs; (5) failing to pay any supervision fees; and (6) failing to report to scheduled group meetings si nce September 26, 2000. The defendant was arrested, and a hearing was h

eld on November 27, 2000, to determine whether his community corrections sentence should be revoked.

PatBallard, the defendant’s community

corrections supervisor, testified that the defendant had been under her supervision while in jail on furloughs and for four

months after his release from jail on April 25, 2000. She indicatedthat the defendant had initially made significant progress in the program,but she began se eing a chang

e in late July. B

y late Septe

mber, he had stopp

ed coming to hi s group m eetings, and the last time he had reported to her was on September 26, 2000. The defendant failed to prov ide her with any employment records af ter July 22, and had not paid any court costs or super vision fe es. Furthermore, she stated that, because of his new arrest for aggravated

assault on August 6, 2000, he had been ordered to serve six weekends in jail.

She could not recall how many weekends the defendant had actua lly served but

stated that

he had not served all of t hem. She told the court that t he defendant’s

“relapse” was

the result of his ad

diction to “huffing” paint and his lack o f focus on sobriet

y. She belie

ved, however, th

at he was sti

ll a go od candidate for rehabilitation and recommended that he be placed in a diffe rent treatment program while incarcerated for six months and then be placed in a structured halfway house.

The defendant also testified on his b ehalf at the rev

ocation hearing . He admitted that M s. Ballard’s allegations were truthful, that he had been on probation several times in the past, and that his prior probation had been revoked for failure to attend his treatment meetings. He admitted having a substan ce abuse problem and claimed that he needed “more structured help.” However, he recognized tha

t his prior attempts

at rehabilitation had failed. When testifying as to the charges brought against him for aggravated a s sault, he explained that because the charges had been dismissed, he had assumed that he did not have to report to jail after his third weekend. He could notexplain why he

had stopped going

to his counseling m

eetings, oth er than to say that he had started “huffing” pai

nt again and cou

ld not control his ad

diction. As f

or not pay ing his fees and costs, the defendant

said that he had fallen behind on paying his debts while he was incarce rated and, later, after he was working, he returned to using addictive substances “and just neve r paid.”

At the conclusion of the hearing, the trial court revoked the defendan t’s cond itional sentence, finding that his vi

olations were sig

nificant. The court also found that the defendant had “dropped-3-

outand relapsed and use[d] controlled – illegal substances while on Community Corrections.” The court stated: “There just comes a point when too much is too much. And there’s a good argument today that that point came a long time ago, but it has definitively come now, if it hadn’t come a long time ago.” The court

then ordered the defendant to serve his original jail sentence in confinement less time already served.
ANALYSIS

The defendant

argues th at the trial court abused its discre

tion in revoking h

is community corrections sentence. He further contends that the court erred in not following the recommendations of his community c

orrections super

visor, given Ms. B alla

rd’s exp erience and co

nfidence in his chances for success. In light of the evidence prese nted, we find this argument without merit.

The primary purpose of the Community Corrections Act of 1985 is to “[e]stablish a policy within the state to punish selected, nonviolent felony offender s in fr ont-end community based alternatives to incarceration, thereby reserving sec ure c onfineme nt facilities for violent felony offende rs[.]” Te nn. Code Ann. § 40-36-103(1) (1997). The program offers a flexible alternative beneficial to both the defendant and society. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990).

Once the defendant vio

lates the terms

of his community corrections sentence, the trial court may revoke the sentence and impose a new one

. Tennessee C ode Annotated Section 40-36-106(e)(4) grantsthe trial court the authority to resentence a defendant following the revocation of the original sentence. The court “may resentence the defendant to any appropriate sentenc ing alterna tive, including incarceration, for any period of time up to the maximu m 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) (Supp. 2000).

Revocation of a community corrections sentence occurs upon finding by a prepondera nce of the evidence that the defendant has violated the conditions of the agreement. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). “The judgment of a trial court in this regard will not be disturbed on appeal unless it appears that there has been an abuse of discretion.” Id. For a reviewing court to find
an abuse of discretion, it must be shown that the record contains no substantial evidence to support the trial judge’s conclusion. Id.

As the record clearly shows, the defendant had been before the trial

court on many occasions since his substance abuse and other problems began at age fifteen. The judg e himself recalled ordering sentences more lenient than what the State had recommended when the defendant had appeared before him. On cross-examination, the defendant acknowledged that he h ad s pent most of his adu lt l ife in c ust ody. He also admitted that previous probations had been revoked for failure to comply with the terms of his sentences. While acknowledging that he had an uncontrollable drug addiction and needed help, the defendant admitt

ed to not following

his treatment plan

s. Perhaps, the most significant testimony in this regard came from the defenda nt’s community co r rections-4-

supervisor

who testified that he had made progress in the program at first but then lost hi

s focus on sobriety an

d stopped attending

his scheduled mee

tings.

The evid enc e presented and the defendant’s own admissions demonstrate his constant disregard for the leniency

of the court. The record

firmly supports the court’s determination that the defendant failed to comply with the terms of his community corr ections sentence.
CONCLUSION

We conclude that the court did not abuse it s discretion in revoking the defendant’s community

correction s placement and orderin g h im to serve the rema inder of his sente

nce in confinement. Accordingly, we affirm the judgme nt of the trial court.

___________________________________ ALAN E. GLENN, JUDGE