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

Briefs J une 19, 2002 STATE OF TENNESSEE v. TRICI A ANN LANDRY Appeal from the Circuit Court for Blount County No. C-13231 W. Dale Young, Judge

No. E2001-02567-CCA-R3-CD July 25, 2002
The defendant, Tricia Ann L andry, wa s conv icted of theft over $500.00 and theft over $1,000.00. The trial court imposed con curren t Ra ng e I s en te nc es of

tw o ye ar s a nd th re e ye ar s, re sp ec ti ve ly. Later, the defendant was determined to have violated her probation. The trial court ordered service of the sentence in the Department of Correction. I n this appeal of

right, the defendant argues that the trial court should have granted an alter native sentence. The judgment is affirmed. Tenn. R. App.P. 3; Judg ment of t he Trial Court Affirm

ed G ARY R. W ADE , P.J., delivered the opinion of the court, in wh ich D A VID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined. Steve McEwen, Mountain City, Tennessee (on a

ppeal), and

Mack Garner, District Public Defender (a t t ri al an d o n a pp ea l) , f or th e a pp el la nt , T ri ci a A nn Lan dr y. Paul G. Summers, Attorney Gene ral & Reporter; Christine M. Lapps, A ssistant Attorney Genera l; and Tammy M. Harr

ington, Assistant District Attorney Ge neral, for the appellee, State of Tennessee. OPINION On May 2, 2001, the def

endant entere d pleas of

guilt to two counts of theft. The trial court imposed an effective sentence of three yea rs but ordered that the sentence be served on supervised probatio n and impos ed the fo llowing c onditions: (1) that the d

efenda nt comple te the Bl ount County

drug c ourt prog

ram; (2) that the defendant perform 100 hours of community service; and (3) that the defendant pay restitution, court costs, and $10.00 per week as compensation for trea tment ser vices. On May 29, 2001, the defendant tested positive for cocaine and withdre w from the drug treatment pro gram. There was testimony from Beverly

Kerr, a state probation officer, that the-2-

defendant had missed at l east one prior session in the program. Accor ding to Ms. Kerr, the defendant then entered the Great Starts progr am sponsoredby

the health department in Knoxville. Lessthan one month after entering the prog ram in June, however, the defendant had a relapse, used cocaine, and was asked to leave t he program . Afterward, she entered the Sisters of the Rainbow pr ogram i n Knoxville, an alcohol and dru g manag ement pr ogram s ponsored

by t he healt h departm ent. On Augu st 21, the d

efenda nt, afte r being asked to s ubmit to a drug screen , admitted to a Knoxville probation officer that she had used cocaine. The def e n dant was charg ed with prostitution in Knox County, first on August 26 and then on September 14. At the time of h er revocation hearing , the Septe mber cha rge wa s still pend

ing. Ms. K

err test ified th at th e defendant had "exhausted pretty muc h every pr

ogram" and recommende d revocation "for her own s afety a s well as the s afety of others." The defendant, age 29, was sing le at the time of the hearing. Her seven-month-old daughter lived with her mother in Walland. The defendant explained that each of her two theft

convictions were related

to her addiction to crack

cocaine. The defendant acknow ledged that she had committed thefts against her mother and her sister and no long er had a place to stay . She testified tha t s he intended to plead not guilty on the pe nding charge of prostitution and asserte d that she was innocent of the other charge but

had already

been sentenced to time served. The defendant ac knowledged that she had relapsed on several occasions during the course of her treatment. She expres sed a des ire to receiv e a commu

nity corrections sente

nce involving a ja

il term an d continuing drug treatme nt. At the con

clusion of the hear ing, the trial cou rt ruled a s follows: [T]he court is of

the opinion and finds that the public's welfare and best intere st and your welfar e and be st intere st dictate [] that y our proba ti on be r evoked, that you be remanded to the Department of Correction . . . to serve the balance of y our sentence. In th e m ea nt im e, you ’r e i n t he cu st od y of th e S he ri ff

of Bl ou nt Co un ty. Five times before wouldn't help; I don't believe the sixth one is worth trying and spending the taxpayers money

. . . . There will be some help for you in the system, and I hope that y ou will tak

e advan tage of it. Our general law provides that a trial court may re

voke a sentence of probation upon finding by a preponderance of the evidenc e that the def enda nt has violated the conditions of his release. Tenn. Code Ann. § 40-35-311(e) (Supp. 2000); Stamps v. Sta te, 614 S. W.2d 71, 73 (Tenn. Crim. App. 1980 ). On app eal, a r evocati on will be u

pheld abs ent an abuse of dis cretion . In o rder to establish that the tr

ial cour t has abus ed its disc

reti on, the defendant must show that there is no substantial evidence to support the determination that he violated his probation. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991) (citi ng State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). R elief ca n be gr anted onl y when “‘the trial court 's logic and reasoning were improper whenviewed in the light of the factual circumstance s and the legal principles involved.’” State v. Shaffer , 45 S.W.3d 553, 555 (Tenn. 2001) (quot ing State v. Moore , 6 S.W.3d 235, 242 (Tenn. 1999)).-3-

In this instance, the d

efenda nt has bee n unable t o establis h that the

trial judg e did

notexercise a conscientious andintelligent judgment. See State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Cr im. App. 1997). The defendant conceded that she ha d violated the terms of her probation and had repeat edly failed to take adv antage

of a var iety of drug treatme nt progr ams offe red by the cour ts. When asked by the defenda nt to consider an alternative sentence in the community corrections pro gram, the trial cou

rt refus ed based

upon the d

efenda nt's pri or unsucc essful efforts to adhere to the termsof a drug

treatme nt progr am. Tennessee law provides that, upon a fi nding tha t the defendant has violated the terms of probation, a trial court may order that the defendant be incarc erated for the remainder of his sentence. Tenn. Code Ann. §§ 40-35-310, -311(e) (Supp. 2000). The trial cou rt’s determination that the defendant serve a sentence of incarc eration will not be overturned absent an abuse of discretion. See Harkins , 811 S.W.2d at 82.
Becau se the defendant acknowledged tha t she had continued to use cocaine during her treatment and because she was unsuccessful in completing the various treatment programs offered by the trial c ourt and the proba

tion offic er, this c ourt can not say that the tr

ial cour t abused its discretion by order

ing service of the sentence. Accordingly , the judgment is affirmed.



### _________________

_________________

_ GARY R. WADE, PRESIDING JUDGE