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

Briefs N ovember 28 , 2001 STATE OF TENNESSEE v. JOH N ARRON HEARD,

alias JO HN ROGER HEARD Direct Appeal from the Criminal Court for Hamilton County Nos. 220544, 220545 Rebecca J. Stern, Judge

No. E2001-00552-CCA-R3-CD January 2, 2002
The defendant, Joh n Arron Heard, appeals from the judgment of the Ha milton County Criminal Courtrevoking his community corrections sentence. The sole issue on appeal is whether the trial court abused its discretion in orderi ng the def endant to serve the remainder of his sentence in the penitentiary. Af

ter careful review, we a

ffirm the trial court’s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEP H M. T IPT ON and J OHN E VERETT W ILL IAMS , JJ., joined. Ardena J. Garth, District Pu

blic Def ender, a nd Donna R

obinson Miller, Assi stant Distr ict Public Defender, Chattanooga, Tennessee, f or the appellant, John Arron Heard. Paul G. Summers , Attorne y Gener al and Re porter; C hristine M . Lapps, A ssistant A ttorney G eneral ; William H. Cox, III, District Attorney General; and Dean Fer raro, A ssistant Di strict Attorney General, for the appellee, State of Te nnessee. OPINION The defenda

nt pled gui lty to assa

ult and ag gravate d kidnapp ing and wa s sentenc ed to eleven months and twen

ty-nine d ays in the

workhous e for the

assault conviction and eight years in the Department

of Correction for the aggravated kidnapping conviction, to be se rved consecutively. Pursuant to the plea agreement, the defend ant’ s eight-year sentence was suspended and he was placed on supervised probation.
A probation violation report was filed on January 27, 1999, on the basis of the defendant’s failure to rep ort and failure to pay fees. On February 8, 1999, the c ourt entered an order that the defendant be arrested. On February 26, 1999, a follow-up pr o b ation violation report was filed, stating that the d

efenda nt was “o n abscon der statu s” beca use he ha d not repo

rted si nc e December 1, 1998. That report further stated that the defendant was on a two-year proba tion for convictions-2-

of burglar y and thef t, that prob ation exp iring on Ap ril 9, 1999, and that a violation report had been submitted in that matter as well. Apparently, the defendant was tak en into custody on April 20, 1999. Although the record on appeal does not contain an order revoking the defendant’s suspended sentence, this apparently occurred because on May 27, 1999, t

he trial c ourt plac ed the defendant in the Hamilton County Community Corrections Program. However, the court then removed him from the program on November 1, 1999, pending a hearing, bec ause he “left house arrest.” The de fendant was again assigned to the community corrections program on March 27, 2000. On May 5, 2000, the trial court entered another order re moving the defendant from the pr ogram fo r a se cond time for leaving the arrest house. Apparently, this order was not pursued because on December 11, 2000, the trial court removed

the defendant from the program yet again bec ause he had absconded from the arrest house and had not provided verification of his employment. The defendant was arrested, and a hearing was held on Febr uary 12, 2001, t

o determ ine wheth er his co mmunity

corrections sentence should be revoked.
At the hear ing, Chris J ackson, the defe ndant’s p robation office r with the Hamilton Co

unty Community

Corrections Program, testified that the defendant left the arr est house wi t hout permission on December 2, 2000, and did not return until the following day. The defendant tol d Jackson that he had been working, but Jackson did not even know that the defendant supposedly was employed. When the defendant reported to the program a few days later, he explained his absence by giving Jackson a paper from Vanes sa Reeves stating he had worked at the Bi-Lo warehouse

. Jackson called the number listed on the paper but only got an answering machine. He then called the Bi-Lo warehouse and was told that they had nev er hear d of the de

fendant or Vane ssa Reev es. Jackson said th at the defe ndant’s employment while in the program had been sporadic, with the defendant working only a few months. The defendant’s drug screen administered that day teste d positive for cocaine and marijuana. Tammy Heard, the defenda nt’s wife, testified that the defendant had a drug problem a nd needed to be plac ed in a re

habilitat i on program. S he said that she was “mean and cruel” to the defendant when he lost his last job and that they were having family problems. As for why the trial court should give the defendant another chance, Mrs. Heard stated that the defendant is “good” and that the “only time he is bad is when he gets those drugs in his system and t hey make him, you know, crazy and I feel like he don’t need to be put in no penitentiary.” The defendant testified that hehad refrained from using drugs during the nine months prior t o the December 2000 positive drug screen. Jac kson verified that the defendant’s previous drug screens had been negative. As to why he relapse d and use d drugs in D ecembe r, the defendant

said that he had los this job and

he and hiswife had

been ar guing, “so

it pushed me a little.” When asked about the situ ation at the Bi-Lo warehouse, the defendant responded, “[T]hat was the night I was getting high and that was j ust a way of me trying to cove

r up, that ’s all. It was my drug problem.” The defendant admitted that he had u sed dru gs since age 17 and that he knew using drugs was a violation of his community corrections sentence. He said that he had been unable to enter a-3-

drug tr eatm ent progr

am on his ow n becau se he did n ot have a ny insura nce. The defenda nt also admitted that he had been able to stop using drugs on a few occasions in the past but had not been able to stop entirely. The defendant stated, “I am a junkie if that’s wha t you want to hear. . . . I can’t do it by myself if that’s what you want to know, no, I can’t.” At the conc lusion of th

e hearing, the tr

ial cour t revoke d the def

endant’ s community co rrecti ons sentence, finding that the defendant had violated the conditions of his sentence by absconding from the a

rrest house on December

2, 2000, by not reporting as required, by lying to the community

corrections officer about a job at the Bi-Lo war ehouse, and by testing positive fo r cocaine and marijuana. The court ordered the de fendant to serve the remainder of his sen

tence in the Department of Correction with credit for time serve d. ANALYSIS The defendant argues that the evidence was insufficient to revoke his community corrections sentence. The primary pur

pose of the Community Corrections Act of 1985 is to “[e]stablish a policy within the state to punish selected, nonviolent felon y offen ders in front-end community ba sed alternatives to incar

cerati on, ther eby rese

rving secure confinement facilities for violent felony offe nder s[.]” Tenn. Code Ann. § 40-36-103(1) (1997). The prog ram offers a flexible alt ernative beneficial to both the defendant and society

. State v. G riffith , 787 S.W.2d 340, 342 (Tenn. 1990). Once the defe

ndant viol ates the

terms of his community corrections sentence, the trial court may revoke the sentence and impose a n ew one. Tennessee Code Annotated Section 40-36-106(e )(4) grantsthe trial court the authority to resentenc e a defendant following the revoc ation of the original sentence. The cour

t “may resente nce the d efenda nt to any appropr ia te sentenci ng alternative, including incarc eration , for any period of time up to

the maximum sent

ence pr ovided fo r the off ense committed, less any time actua lly served in any

community-based alter

native to incarceration.” Tenn. Code Ann. § 40-36-106(e)(4) (Supp. 2000). Revocation of a comm

unity co rr ec ti on s s en te nc e o cc ur s u po n f in di ng by a preponderance of the evidence that the defendant has violated the conditions of the agreement. Statev. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). “The judgment of a trial court in this reg ard 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. The record

readily supports the de

cision of the trial court to terminate the defendant from the commu nit y

corrections prog

ram. I n his testim

ony , althoug

h offer ing an e xplanation

for his transg ressions , the defendant admitted absco ndin g, failing to re port, and lying about

his employ

ment. Ac co rd in gl y, we cannot conclude that the trial court abused its discre ti on in terminating the defendant from community corrections. Additionally, we note that he wa s not eligible for placement in the community corre ctions program. His conviction wa s for aggravate d kidnapping, for which-4-

he had been sentenced to incarcer ation for eight

years. Tennessee Code Annotated Section 40-36-106(a)(2), which set s out the eligibil ity c riteria for commu

nity corrections, pro vides tha t a defendant convicted of a crime against the per son, in violation of title 39, chapter 1 3, parts 1 -5, is noteligible

for plac ement into

the prog ram. Sinc e the def

endant w as co nvicted of aggrava ted kidn appin g, in violation of Tennessee Code Annotated Sec t ion 39-13- 304, he wa s statutor ily ineligib le for placement into community c orrections. Additionally, he wa s ineligible for placement as a “special needs” offender into the program, pursuant to Tennessee Code Anno ta ted Section 40-36-106(c), because inclusion under that section requires that the def endant first be eligible for probation, for

which he was, likewise, ineligible by virtue of Tennessee Code Annotated Section 40- 35-303(a), which prohibit s a defe ndant convi cted o f aggrava ted ki dnapp ing fro m recei ving a suspended sentence. See State v. Kendrick , 10 S.W.3d 650, 655 (Tenn. Crim. App. 1999). CONCLUSION
We conclude that the court did not abus e its dis cretion in revoking the defendant’s co mm unity

corrections plac ement an d ordering him to s erve the remaind er of his sentenc e in confinement. Accordingly , we affirm the judgment of the trial court.

___________________________________ ALAN E. GLENN, JUDGE