### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ma rc h 19 , 200 8 STA TE OF TEN NES SEE v. JAC K E. THOM PS ON
Direc t Appeal from the Circ uit Court for Montgom ery C ounty Nos. 40600485, 40300297 John H . Gasaway, III, Jud ge

No. M2007- 01347-CCA -R3-C D - F iled Septem ber 2, 2008

The de fenda

nt, J ack E

. Thompson, in this c onsolidated appea l, appea ls from one judg ment revoking his probation and anothe r judg ment sentenc ing him to three y ear s to be ser ved conse cutively

to the se nte nc e fo r w hic h h is p ro batio n w a s r e vo ke d. On a pp e a l, h e argue s th a t th e tr ia l c ourt a bu se d it s discretion in re voking his proba tion and ordering him to serve his sentenc e and that the trial court e rr e d in e nh anc inghis se nte nc e to t hr e e y e ars on

his ple a of g uil ty to b ur g lary

of a ve hic le , a

Cla ss E f e lony . A ft e r r e vie w, we a ff ir m bo th j ud g me nts fr om t

he tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed
J OHN E VE R E TT W I L L I AMS , J ., delivere d the opi nion of t he court, in which J OS EP H M. T I PTON , P.J ., and J A M ES C UR WO OD W I TT , J R ., J ., joined.
J eff ry S. Grimes, Clarksville, Tennesse e, for the appe llant, J ack E arl Thompson. Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; J ennifer L

. Bl edsoe, Assistant Attorney Gene ral; Rog er Er ic Nell, District Attorne y Gene ral; and John E. Finklea, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
. OP IN ION

The defenda

nt pled guilty on October 16, 2003, to burg lary of a vehicle and t wo counts of forg ery and re ceive d an effec tive six -y ear sentenc e on probation. He violated his probation and, on September 8, 2005, w aived his rig ht to a hear ing a nd admitted he had violate d his probation. On De c e mbe r 8 , 2 00 5, he wa s re ins ta te d to pr ob a tio n. On Marc h 2 0, 20 06 , a

se c on d v iol a tio n w a rr a nt, which is t h e subj ect of

this appeal, wa s issued ag ainst the defe ndant, alleg ing that he violated the te rm s o f h is p ro batio n b y c omm itt ingthe of

fe ns e s o f b ur g lary

and the ft and by fa ili ngto re po rt

to his probation office r, pay his supervisio n fe es , an d provide proof of pay ment of cour

t-order ed re s t i tu t i o n
. On Au gu s t 1 7 , 2 0 0 6 , t h e d ef en d an tad m i t t edh i s v i o l at i o nan d p l edgu i l t y

t o a n ew ch ar ge-2-

of burg lary of a ve hic le . F or

the burg lary

of a ve hic le c ha

rg e , h e re c e ive d a

thr e e -y e ar se nte nc e to be ser ved conse cutively

to the probation violation. During the probation violation hearing , the defe ndant testified that he had be en inca rce rate d since F ebrua

ry 2006, as a result of hi s arr est and subsequent g uilty plea on a charg e of burg lary

. He said t h at h i s judgme nt had bee n impaired at the time he committed the offe nse bec ause he had a drinking problem and w as under the influenc e of pa in medication for a leg injury sustained in a ca

r acc ident. He said that he completed a twenty -eig ht-day

treatment prog ram at the Elam Tre atment Ce nte r a nd that he wa s routin e ly te ste d for bo th al c oh ol an d dru g s. Th e de fe nd ant t e sti fi e d th a t, i f reinstated to pr obation, he would be in a reha bilitation progra

m. On cr oss-examination, the defenda nt testified that he beg an drinking alcohol at a g e nine a nd taking drug s at ag e thirteen. He said he had nine prior felonies and si x p ri o r m i s demea nor c on vic tio ns . F oll ow ingthe he ari ngon De c e mbe r 5 , 200 6, the tr ia l court or de re d th e ba lanc e of his orig inal sentenc e to be se rved in c onfinement.
An a ly sis The de fenda

nt argues that the c ourt err ed in imposing inca rce ration af

ter the r evocation of his probation. He c oncede s that the trial cour t had the option to revoke his probation but argues that his probation should have be en re instated or, at wor st, only extended for two y ear s. A trial cour

t may revoke probation and order the impositi on of the orig inal sentenc e upon a finding , by

a pre pondera

nce of the evidenc e, that the person has violated a condition of probation. T.C.A. §§ 40-35-310, - 311. The decision to revoke probation re sts within t he sound discre tion of t h e trial court. Sta te v . M itc he ll , 8 1 0 S. W. 2 d

7 3 3 , 7 3 5 ( T e n n
. Cr im

. A p p
. 1 9 9 1 )

. Re v o c a ti o nof probation is subjec t to an abuse of discretion standa

rd of r eview r ather

than a de novo standard. Sta te v. Hark ins , 811 S.W .2d 79, 82 (Tenn. 1991)

. Di s cre tion is abused only if the re cord c ontains no substantial evidence to support the conclusion of the tr ial court that a violation of probation has occur red. Id. ; Sta te v . G re

go ry , 946 S.W .2d 829, 832 (Tenn. Crim. App. 1997) . Proof of a violation need not be established bey ond a rea sonable doubt, a nd the evidenc e need only show that the trial judge exercised a conscie ntious a nd intelligent judg ment rathe r than a cted a rbitrar ily

. Gr e

go ry , 946 S.W. 2d a t 83 2; State v. Leach , 914 S.W .2d 104, 106 (Tenn. Crim. App. 1995)

. The underly ing f

acts de monstrate that the de fenda nt was plac ed on probation after burg larizing a

vehicle. While on probation for that crime, he c ommitt ed anothe r burg lary of a vehicle. H is criminal rec ord includ es m ultiple convictions for burg laries a nd drug offe nses. The defe ndant ac knowledg ed that he ha d violated his probation, and he place d the blame f or his criminal conduct on his alc ohol depende ncy . Ba sed on his past criminal rec ord, the trial c ourt found that he was a threat to society . Her e, the r ecor d ref lects that th e trial court did not abuse its discretion by re vo king t

he de fe nd ant’ s p ro batio n a nd or de ri ngthe de fe nd ant t o s e rv e his or ig ina l se nte nc e in confine ment.-3-

Next, the defenda

nt argues that the two sentenc ing enhanc ement factors and two miti g ating fac tors found by

the trial cour

t canc el ea ch other out. We f ollow the rec ent decision of the T ennesse e Sup re me Court , w hic h s ta te d: Prior to 2005, a def

endant wa s entitled to the presumptive sentenc e unless the trial c ourt pr op e rl y a pp lie d s ta tut or

y e nh anc e me nt fa c tor s. Cur re ntl y , the tr ia l c ourt

“ sh a ll consider, but is not bound by ” an “ advisory sentenc in g gu i d el i ne” that sugg ests an adjustment to the defe ndant’s senten ce u pon the pre sence or abse nce of mitigating an d e n h an c e me n t f

a c to r s
. [T

. C. A

. ] § 4 0

- 3 5

- 2 1 0 ( c )

. T h u s , th e 2 0 0 5 r e v is ion to the -2 1 0 (c ) i ncre ases the amount of discretion a trial court exercises when imposin g a sentenc ing te rm. State v. Carter , 254 S.W .3d 335, 344 (Tenn. 2008) . The 2005 re vision was made e ffecti ve for crimes c ommitt ed on or a fter June 7, 2005. The supre me cour

t in Carter

further stated that “[ a]s to the standard of r eview, the Sentencing Ac t pr ov ide s th a t, ‘ [w]he n r e vie wi ngse nte nc ingiss ue s r a ise d [by a de fe nd ant] p ur su ant t o [th is section], including the g ranting or denial of probation and the leng th of sentenc e, the a ppellate c ourt shall conduct a

de novo re view on the r ecor d of the issues. The revie w shall b e co n ducted with a presumption that the deter minations made by the court from which the appea l is taken are corr ect.’ ” T. C.A . § 40 -3 5- 40 1( d) ; see also T. C.A . § 40 -3 5- 40 2( d) ; State v. Carter , 254 S.W .3d at 344 (Te nn. 2008).
The weig ht a ffor ded the various mitigating and enhanc ement fac tors is “ left t o t h e t ri al court’s sound discr etion.” B eca use the Sentenc ing A ct has be en re vised to rende r these f act ors mere ly advisory , th at d i s cr et ion has bee n broade ned. Thus, eve n if a trial c ourt rec og nizes and enunciates s ev er al applica ble enha nceme nt fac tors, it does not abuse its discretion if it does not incre ase the sentenc e bey ond the m inimum on the basis of t hose factors. Similarly , if the trial cour t re c og nize s and

e nunc ia te s se ve ra l a

pp lic a ble mit ig a tin g fa c tor s, it doe s n ot a bu se its dis c re tio n if

it do e s n ot re du c e the se nte nc e fr om the ma ximum on the ba sis of tho se fa c tor s. Th e a

pp e llate c ourt s are there fore left with a na rrowe r set of c ircumstance s in w hich they might find that a trial court ha s abused its discre tion in setti ng the leng th of a de fenda nt’s sentenc e.” Id. at 345-46. The ref ore, a pp e llate c ourt s are bo un d b y the de c isi on

of the tr ia l court a s to the se nte nc e le ng th as lon g “ a s it is imposed in a manner c onsistent with the purposes and principles set out in sections -102 a nd -103 of the Sentenc ing A ct.” Id.
The trial court was within its discretion in imposing a thre e-y ear sentenc e, and the defe ndant has not demonstrated that the court err ed in imposi ng said sentenc e. The ref ore, he is entitled to no relief on this iss ue. As t o t h e i s s u e o f h i s i n c ar ce ra t i o n , t h e t ri al co u rt wa s wi t h i ni t s d i s cr et i o ni ni mp o s i n g a sentenc e of c onfinement a fter it found the defe ndant had violated his proba tion. See T.C.A. §§ 40- 35-310, -311. The rec ord re flec ts t h at the def endant violated his probation and committed a subsequent law violation while on pr obation. Tenne ssee Code A nnotated sec tion 40-35-115(b)( 6) p r o v i d e s t h a ta

t r i a l c o u rt“ m ay o r d e r

s e n t e n c e s t o r

u nc o n s e c u t i v e l y i f

t h e c o u rtf

i n d s b y a-4-

pr e po nd e ra

nc e of the e vid e nc e that

. . . the de fe nd ant is se nte nc e d fo r an of fe ns e c omm itt e d w hil e on probation.” H ere , the defe ndant acknow ledg ed he pled g uilty to a new law violation whic h g ave the tr ia l c ourt

a uth or ity to s e nte nc e him

to a c on se c uti ve se nte nc e in c on fi ne me nt. Conclusion
Ba sed on the for eg oing a

nd the re cord a s a whole, w e conclude that no err or exists and af firm the jud g me nts fr om t

he tr ia l c ourt

.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE