### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 8, 200 8
STATE OF TENNESS EE v . LEMAN EARL RUSSEL L, JR.

Direc t Appeal from the Circ uit Court forDyerCounty Nos. C05-415, C05- 442B Lee Moor e, Judge

No. W2007-02804-C CA-R 3-CD - Filed September 3, 2008

The de fendant, Leman Ea rl Russell, Jr., entered a plea of guilty, in J anuary 2007, to three c ounts of selling a Schedule I I controlled substance u n der .5 gr ams (Class C felony) and one count of po sse ssi on of a Sc he du le II c on tr oll e d su bs ta nc e ov e r .5 gr a ms wi th i nte nt t o s e ll o r d e liv e r ( Cla ss B felony), in exc hange f

or a se ntence of spl it confine ment. For eac h Class C felony c onviction, he was sente nced to six months in the county jail and four yea rs on community corre ctions, with eac h sentenc e to be se rved c oncurr ently. For the C lass B felony, he was sente nced to six months in the county jail to be foll owed by nine ye ars a nd five months on community corre ctions, also concur rent with the other sente nces, f or a total e ffe ctive sente nce of nine yea rs and e leven months (six months in confineme nt followed by n i n e years and f ive months on community correc tions). Here , the defe ndant appe als the re vocation of his community corr ections sentence. After revie w, we c onclude that the trial court properly r evoked the defe ndant’s community corr ections sentenc e. Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Circ uit Court Aff irme d

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of t he court, in which N OR MA M C G EE O GLE and J. C. M C L IN , JJ., joined.

James E. La nier, District Public Def ender , and H. Tod Taylor, Assistant Publi c De fe n d er, for the appellant, Le man Earl Russell, Jr. Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; Rachel W est Harmon, Ass i s t an t Attorney Gene ral; and Phillip Bi vens, District Attorney G ener al, for the appellee , State of Tenne ssee.
OP IN ION

On Octobe r 10, 2005, the de fendan t wa s i n dicted by the Dye r County grand jury f or two counts of sale of a Sche dule II controlled subst ance in an amount less than .5 grams and one count of sale of a Schedule II c ontrolled substance in e xcess of .5 grams. On De cembe r 12, 2005, he w as indicted for one count of sale of a Sche dule II c ontrolled substance i n ex ce s s of .5 gra ms and one count of possession of a Schedule II controlled substance in e xcess of .5 grams with int ent to sell or deliver. O n January 10, 2007, he pled guilty to three counts of selling under .5 gr ams of coc aine a nd-2-

one count of possessing ove r .5 grams of cocaine with the intent to sell or deliver. A violat i o n of
c ommun ity c or

re c tio ns wa

rr a nt w a s f

ile d a ga ins t th e de fe nd a nt i n M arc h 2 00 7, a ft er he fai le d to report as requir ed. During the c ommunity correc tions v i o l ation hearing, an employee of We state Corre ctions Networ k, the community corre ctions provider for the 29th Judicial District testified that he had supervision of the de fendant for a short period of time. He said that he met with the de fendant prior to h is r e le a se fr om j a il a ndthat th e y h a d w e e kly me e tin gs fo r a tim e be fo rehe be cam e un abl e to locate the defe ndant. He said he also supervised the def endant’ s father

and eve ntually located the defe ndant while conduc ting a home visit with t he def endant’ s father

. Th e c ommun ity c or

re c tio ns of

fi c e r t e sti fi e d th a t he tol d th e de fe nd a nt t o pro vid e him wi th an addr ess and phone number a fter he was told the def endant ha d reloc ated to Na shv i l l e to attend school. He transfe rre d the defe ndant’s supervision to N ashville and advised the de fendant to make contac t with his new supervising agenc y. He sa id th at t hey had no f urther c ontact af

ter the defe ndant’s move to Na shville.
Next, a c ase of

fice r with Davidson C ounty Communi ty Correc tions testified t hat hi s job was to supervise a ll the out-of-c ounty cases. He said that the de fendant was transf err ed to him on Dec ember

20, 2006, and he had no contac t with the defendant fr om that time until February 2, 2007. In a phone conver sation, he advised the defe ndant t o report and provided him deta iled instructions on how to locate the com m u n i ty corre ctions office . The c ase of fice r testified that the de fendant indicated he was enrolled i n a school which was located approximately three mi les from his offic e. The off icer asked the defe ndant to come in fo r a meeting and “try and get in compliance .” The y schedule d a mee ting bu t the def endant did not show up. He filed the violation petition in March 2007, beca

use he ha d been una

ble to rea ch the de fendant again.

Th e de fe nd a nt t e sti fi e d th a t he a tte mpt e d to c on ta c t t he David so n Co un ty C ommun ity Correc tions officer

but was told he was on vacation and to try back in a few weeks. He said that he talked to the off

icer when he was in Dye rsburg to take car e of some cha rges and child support. He
rec alled that he told the Da vidson County offic er that he was not in Na shville. He ac knowledged that he did n o t call his first community corre ctions office r to tell him he had re turned to the a rea

. He sa id that he talked with the Davidson County off icer on one other

occa sion to request that he be trans f e rr e d b a c k to D y e r s b u r g

. T h e d e f e n d a n t s a id h e trie d to c o n ta c t th e o f f ic e r o n c e o r

twice a
wee k but w as unable to spe ak with him. He did phone the community corr ections off ice and leave a message that he had a transportation problem and would not make the Februa ry 8, 2007 mee ting.

The State c alled the Da vidson County officer to testify a gain as rebuttal proof. The off icer d enied that he talked with the def endant f ollowing their phone conve rsation on Februa ry 7, 2007. He a lso said that he did not rec eive a ny phone message s from the de fendant.
Fol low ing the he ari ng , th e tr ia l c ou rt fo un d th a t th e de fe nd ant t re a te d th e c ommun ity
c or re c tio ns pr og ram li ke a

“ ge t- ou t- of

-j a il- fr e e c ard ,” sh ow ing a b l at ant d isr e ga

rdfo r the c ommun ity
corr ections sentenc e. The court a lso specifica lly found that the defe ndant cl ai m ed he had a transportation problem in Nashville but he had no suc h p ro b lem trave ling between N ashville and-3-

Dyer sburg. The court revoke d the community c orre ctions sentenc e in f ull and order ed the def

endant to serve the rema inder of his sente nce in the T ennesse e De partment of Corr ection.

An a lys is

On app e a l, the de fe nd a nt a rg ue s th a t th e tria l c ou rt

abu se d it s d isc retionin r e vo kin g h is community corre ctions sentence

. The decision whether to revoke a community corr ections sentenc e re sts wi thi n th e so un d d isc re tio n o f the tr ial c ou rt a ndwi ll n ot b e dis tur

be d o n a pp e a l w ith ou t a showing that there is no substantial evidence to support the trial court’ s judgment. State v. Hark ins , 811 S.W.2d 79, 82-83 (Tenn. 1991). The trial court must find by a preponderance of the evidenc e that a vio la tio n of pr ob a tio n or c ommun ity c or re c tio ns oc c ur

re d. T. C.A . § 40 -3 5- 31 1( e ); se e als o T.C.A. § 40-36-106( e)( 3)(B).

If su ff ic ie nt e vid e nc e e xis ts, it is wi thi n th e tria l c ou rt ’s dis c re tio n to re vo ke the c ommun ity
corr ections sentenc e and r equire the def endant to se rve his se ntence in c onfinement. T.C.A.§ 40-36- 106(e) (4). I f it finds a violation has occ urre d, the t rial court has the authority to re voke probation and suspend a

sentenc e and c ause the defendant to commenc e the e xecution of the judgment as originally entere d. See T.C.A.§ 40-35-311( e). The trial court has the discr etionary authority to order the defe ndant to se rve the original sentenc e. See State v . Duke , 902 S.W .2 d 424 , 4 27 (T e nn . Crim. Ap p. 19 95 ). W he n th e se nte nc e is c ommun it y corr ect ion s, thetr ia l c ou rt ha s th e auth ority to rese ntence the def

endant to any a

ppropriate sentenc ing alternative, including confineme nt, for any period of time up to the m aximum sentenc e provided for the offe nse commi tted less any cr edits for time served in a

community-based a lternative to c onfinement. T.C.A.§ 40-36- 106(e) (4).

Her e, t h e defe ndant’s supervisors testified that the def endant f ailed to re port to them as require d. The de fendant testified that his reason f o r n o t re p o rt i ng to his supervisor in Davidson Cou nty wa s r e la te d to tr a ns po rt a tio n p ro ble ms andbe c aus e he ha d to re turn to D ye r C ou nty du e to oth e r l e ga l is su e s. As pr e viou sl y st ate d, the tria l c ou rt fo un d th a t th e de fe nd a nt t re a te d h is community corre ctions sentence as a “ get-out-of -j ai l -f re e card” and that he did not re spect the progra m. The def

endant we nt without supervision from November 2006 until the violation warrant
wa s f ile d inMa

rc h 2 00 7. Th e de fe nd a nt h a s th e bu rd e n o f s ho wi ng that th e tria l c ou rt abu se d it s discretion. The recor d ref lects t hat t he defenda nt failed to report to his supervisors as requir ed and that th e tr ia l cou rt wa s with in its dis c re tio n in r e vo kin g h is c ommun ity c or re c tio ns se nte nc e fo r h is violation.

Conclusion

Based on the f

oregoing a n d the re cord a s a whole, w e af firm the judgments from the tria l
c ou rt

.-4- ___________________________________ JOHN EVE RETT WILL IAMS, JUDGE