# FILED
October 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-96 1 0-CC-0043 7 ) vs. ) Rutherford County ) CHRISTOPHER DA

NE MCBRIDE, ) Honorable J.S. Daniels, Judge

) Appellant. ) (Motion for Reinstatement of ) Probation)

FOR THE APPE LLANT: FOR THE APPELLEE: WILLIAM A. OSBORNE JOHN KNOX WALKUP Assistant District P ublic Defender Attorney General & Repor ter 201 W. Main St., Ste. 101 Murfreesboro, TN 37130 GEORGIA BLYTHE FELNER Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 WILLIAM WHITESELL District Attorney General DALE ROBINSON Assistant

District Attorney General Judicial Bldg., Third F loor Murfreesboro, TN 37130
OPINION FILED: ____________________
AFFIRMED CURWOOD WITT JUDGE1 Our review of sentencing determinations is de novo , with or without a

presumption of correctness, depending on whether the record affirmatively reflects that the trial cour t has considered the sentencing principles and all the relevant facts and circumstances. Tenn. Code Ann. § 40 -35-401(d) (1990); State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). 2 OPINION The defendant, Christopher Dane McB ride, appeals the Rutherford County Circuit Cour

t's de nial of his post-revocat ion motion for reinstatement of probation. Following gui lty pleas to the crimes of

DUI and driving on

a suspended license, McBride was sentenced to 11 months, 29 days at 75 percent service, suspended in favor of48 hours of confinement in the county facility, 17 months, 29 days probation, payment of costs and fines , and revoc ation of his driver's license forone year for DUI, and 6 months confinement at 75 percent, su spended in favor of probatio n of 17 months, 29 days on the same conditions imposed in the DUI conviction, for driving on a suspen ded license. The sentences w ere i mpos ed
consecu tively. Thereafter, the defendant's probation was r evoked when he

failed to report to the Rutherford Cou nty Jail to se rve his 48 hours of confinement. He
was apparently ordered to serve the balance of his sentence in the county jail , and several weeks later he filed a "motion for probation," which the trial cour t denied aftera hearing. In this appeal, he challenges the low er court's denial of that motion

. On review, we affirm the court below.

We b egin by noting the question of the propriety of the probatio n revocation and the procedures f ollowed in that proceeding are not before us. Rather, the defendant has appeale d only the court's subsequent denial of his "motion for probation." The defendan t characterizes this action as a sentencin g determination and urges us to consider th e issue de novo , 1 as we would review a sentencing determination on direct appeal . On the other ha nd , the state characterizes

the challenged action of the trial court as a probation revocation3

proceeding and coun sels us to review th e trial court's action for an abuse of discretion. See State v. Leach , 914 S.W.2d 104, 10 6 ( Te nn . C ri m. Ap p. 19 95 ). We do not wholly agr

ee with either argument

.

Tenness ee Code Annotated section 40-35-306(c) grants the trial cour t the authority to

revoke a split confinement s entence and impose a sentence in the local jail or

workh ouse upo n a viol ation of p robation. This sect ion likewis e allows defendants placed in periodic confinement pursuant to the sectionto make periodic applicationsfor a grant of probation. Tenn. Code Ann. § 40-35-306(c) (1990). Although neither the record nor the parties' briefs acknowledge that the defendant was proceeding under this section in his "motion for probation," it is apparent that this is the applicable law

. In determining how w e shall review th e issue before us, whatwe find controlling, and what neither party at bar has argued, is the appropriate standar d of revie w for actions arising under this section of the Code

.
Our research reveals no s pecific statutory direc tive a s to the proper standard of review for determinati ons under sec tion 40-3 5-306(c) . Likewise, we find
no decisional authority directly on point from thi s court or the supreme court

. We
are guided, however, by the standard of review applicable tomotions for sentence reduction under Rule of Criminal Pro cedure 35, abuse of discretion. State v. Irick , 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993); State v. Lance C. Hof , No. 01C01- 9102-CR-00045 (Tenn. Crim. App., Nashv ille, Dec. 20, 1991), per m. app. dismissed (Tenn. 1992). Further, another panel of this court has at least implied that review forabuse of discretion is appropr iate unde r section 40-35-306(c). See State v. Elbert Murfr

ee Marable, Sr. , No. 01C01-9512-CC-00 436, slip op . at 6-7 (Tenn . Crim. App., Nashville, Apr. 3, 1997) (trial court "w ithin itsdiscretion" in requi ring defendant to serve a year of his sentence bef ore making a reapplication for probation un der § 40-35-306(c)). It is a logical extension of the foregoing authorities to apply abuse2 Of course, a defendant may choose to w aive his right to for

mal, judicial sentencing by accepting a settlement in which a de termined sentence is part of the plea agreement. 4 of discretion review

to determinations under secti on 40-35-306(c). In so holdin g, we further note that such defend ants have previously been afforded formal sentencing under the Sentencing Reform Act 2 and the rig ht of appeal the refrom, at which t ime the sentence would have been subject to de novo review.
Turning to the case at bar, the defendant testified at the hearing on his motion for probation about his failu re to serve the 48 hour incarcera tive portion of his sentence and characteri zed this as poor judgment

. He declared his intent to marryhis girlfriend, with whom he has two c hildren, maintai n employm ent and l ive responsi bly. He tendered a letter from a prospective employer who had agr eed to interview him upon his release. He tes tified he turned himself in upon learning of the capias which was issued followi ng his failure to report so that he might get the incidentbehind him. The defendant cla im ed he had learned his lesson from t he time he had served. He told the court he would not drive under any circumstance and had arranged for transporta tion.

The order denying the appli cation for suspended sentence reflect s simply that the request was denied. The statement of the evidence, however, reflects that the court relied on the defend ant's dis regard of driving and traffic laws
as evidenced by th e specific data report prepared by probation personnel, the defendant's prior probation revocation, and the defendant's statu s as an habitu al motor vehicle offender.

The defe nd ant before us is but 26 years old, yet he has a lengthy criminal history dating back to the a ge of 10, which includes numer ous motor3 In fact, the court's lack of confidence in the de fendant proved prophetic,

as evidenced by his s ubsequent escape from confinement. For purposes of our review, howev

er, we have not consi dered the escape. 5 vehicle offenses, eight of which are pr ior convictions for dr

ivi ng on a revoked or suspended license, mult iple t heft-related offenses and multiple alcoho l and drug related offenses. He admitted a previous probation revocation, and he has previouslycommitted offenses while on probati on. The trial court hadno reason to beli eve his testimony that his performance would improve and every reasont o believe his anti-social lifestyle would continue, and it noted as much. 3 This is simply
a case in which the defendant's actions speak louder than his words. His conduct in this case and his long history of non-compliance with the l aw and with the terms of other alternat ive sentences indicate further leniency is not likely to yield favorable results. As such, the trial court did not abuse its discretion i n denying his motion for reinstatement of probation.

Next, the defendant urges for the first ti me on appeal th at the trial court should have considered other forms of alternative sentencin g. This issue, not raised below, is not properly before us. SeeTenn. R. App. P. 36(a) ("rel ief may not be granted in contravention of the trier of fact").

Finally, we observe from a notation on the technica l re cord that the defendant escaped from th e workhous e the day after counsel filed a not ice of appeal on his behalf. The record does not reflect whether the defendant was ever recaptured. In T ennessee, a defendant who escapes waives his right to direct appeal, French v. State , 824 S.W.2d 161 (Te nn. 1992), unless he is in custody at the time his appeal is consider ed by the appellate

court. Knight v. State , 190 Tenn. 326, 229 S.W.2d 501 (1950); Campbell v. State , 576 S.W.2d 591 (Tenn. Crim. App. 1978). In appropriate circumstanc es, the state may make a motion for this court to6

dismiss an escapee's appeal. See Tenn. R. Ct. Crim. App. 7 (motions and orders); Tenn. R. App. P. 22 (motions); Tenn. R. App. P. 14 (considerati on of post-judgment facts in the appellate court). Because the state has not made such a request in this
case and the defendant's present incarc erative status is unkno wn, we have not considered whether the defendant's appeal is subject to dismissal based upon his escape.
The judgment of the lower cour t is affirmed.

_______________________________ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ GARY R. WADE, JUDGE

_______________________________ THOMAS T. WOODALL, JUDGE