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

Briefs J une 24, 2003
STATE OF TENN ESSEE v. MARVIN L. JONES, ALIAS AL AMIN HASSON
Appeal from the Criminal Court for Knox County No. 70889 Ray L. Jenkins, Judge

No. E2002-02419-CCA-R3-CD July 3, 2003

The defendant, Marvin L. Jones, appea ls the trial court's rev ocation of a community corrections sentence. The sing le issue p resente d for review is whether the trial court abused its discretion. The judgment is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinio n of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined.

Mark E. Stephe

ns, Distri ct Public D efende r, and Rob ert C. Edw ards, As sistant Dis trict Publi c Defend er, for the appe llant, Mar vin L. Jones.

Paul G. Summers, Attorney Gene ral & Reporter; David H. Findley , AssistantAttorney Gene ral; and Jo Helm, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On September 22, 2000, the defendant entered a plea of guilt to a

sale of o ver one- half

gram of cocaine. On March 15, 2001, the trial court imposed a

n eight- ye ar sente

nce, all of which was to be served in the Community Alternative s to P risons Pro gram ( CAPP). As a condition

of his participation in the program, the defend ant was r equired to comply

with all g overnme

ntal laws , refra in from conduct inconsistent with good citizenship, pay the fine and

costs, and otherwise abide by any terms and conditions required by the probation officer.

Less than two months a

fter sen tencing , the def

endant w as char

ged wit h violating

the terms of his sentence by posse ssing or using a controlled substance, by frate rnizing with other drug users and traffickers, and by

failing to make a complete report to his probation office r. Although the warrant was eventually r

esolved without a sentence to the Department of Correction, the defendant-2-

was require d to reside in a halfway house and participate in a drug court program. On July

16, 2002,
a second violation of probation warrant was issued. The defendant was charge d with failing to obey state law, fai l ing to m ake a full and truthful report to his probation officer, fa iling to report for supervision and part

icipation in the com

munity corrections and d

rug court prog

rams , and contracting major debt

without prior pe

rmission. B efore t

he hear ing, the warran t was ame nded to allege that the d

efenda nt had fa iled to co mplete hiscommunity service and failed to make payment of his community corrections fees.

At the hear ing, Pen ny H ay es, the defendant's community corrections case manage

r, testified that the defendant was delinquent in his commu

nity service obligat ions and th

e fees a ssociate d with his community corrections sentence. She stated that the defendant had failed to report a speeding citation and had f

ailed to seek permi ssion to pur chase a vehicl e on cre dit. Ms. Hayes testified that the defendant, who she believed had been sober for more than one year d uring his supervised progra m, had nevertheless failed to report for one or more drug screens. The probation officer stated that she confronted the defendant when she learned that he had purchased a car and that he answered that he was unaware of

his supervision requirements, explaining that he was on drugs at the time he signed the agr eement. She acknowledged, however, that the de fendant had not contracted any debt by the purchase of the

vehicle. Ms. Hay es also acknowledged that although the defendant

was some 36 hours behind in his community service re sponsibilities in June, he had made up all but 10 hours of hi s r eq ui re d s er vi ce ti me by h is ar re st in Ju ly.

The defendant, who admitted a 2 5 -year substance addiction, described drug cour t as very helpful. He contended that he w as behind in communit

y corrections fees only

because he had been incarcerated

as a result of the violation warrant. He testifiedthat because the speeding citation cited by Ms. Hayes had been dismissed, he believed that he had no immediate obligation to rep ort the incident

. The defendant

also testified that he had purchased the car with fundshe had re

ceived i n an insurance settlement and had not, therefore , obligated himself to any debt.

At the co nclus ion o f the h earing, the trial court found tha

t the def endant ha d violate d both the laws of this state and certain of the conditions of his alternative sentence. After acknowledg ing that the defendant had "talked himself out of sever al . . . tight spots," the trial judge observ ed that he had "exhausted

[his] patience" before revoking. The def endant was ordered to serve the sentenc e originally imposed.

In this appe al, the de

fendant argue s that the t

rial cou rt abuse d its discr

etionar y a uthority because the state failed to present proof of his violating state law

by s peeding

or proof of his untruthf ulness in reports to his probation officer. While the defenda nt conce des that he was in
arrears in community service , he c ontends that the evidence established that he had made consider able progress in reducing the def iciency. Althoug

h he acknowledges that

he was be

hind in his payment of fees, the defendant contends that he was "c atching up." He submits that he has made consider able progress through his participation in the drug court program by

achieving the long est period of sobriety of

his adult life.-3-

Once a defendant viola

tes the te rms of his c ommu n ity corrections program, the trial court may revoke

the sentence and impose a new one:

The court sha

ll also poss ess the power to revoke the sentence imposed at any time due to the conduct of the defendant or the termination or modification of the program to which the defendant has been sentenced, and the court may re sentence the defendant to any appropr

iate sentencing alternative, including incarcera tion, for any period of time

up to the maximum s entence provided for the o ffense

committed , less any time actua

lly served in the community-based alternative to incarcera tion. Tenn. Code Ann. § 40-36-106(e)(4).

In State v. Harkins , 811 S.W.2d 79 (Tenn. 1991), ou r suprem e court ruled that a

community corrections sentence is so similar to a probationary sentence as to require

the applica

tion of the same standardof

review. Our general

law provides that a trial court may revoke a sentence of probation upon a f in di ng by a preponderance of the evidence that the defendant has violated the conditions of his release. Tenn. Code Ann. § 40-35-311(e). On appe al, a revocation will be upheld absent an abuse of discretion. In order to establish that the trial court ha s abused its discretion, the defendant must show that t

here is no subs tantial evidence to support

the dete rmination that he vi olated hi s probation. Harkins , 811 S.W.2d at 82. Relief can be granted only

when the trial court's logic and reasoning were improp er when viewed in the light of the factua l circumstances and the legal principles involved. State v. Shaffer , 45 S.W.3d 553, 555 (Tenn. 2001). The trial judge is not required to find

that a violation of the terms of probation has occurr ed bey ond a rea sonable d

oubt. Stamps v. Sta

te , 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980).

Alth ough the state alleged that the defendant ha d violated the terms of his com munit y corrections sentence in a number of way s, the evidentiary he aring was limited. Mo st of the charges
were unsubstantiated and yet the de fendant acknowledged that he had not performed

his commun

ity service obligations on a timely basis, as re quired, andthat he had not paid a portion of the program fees despite his apparent ability to do so. Ther e was no proof that the defendant had been speeding other than the acknowledgment of his arrest, a charge tha

t was ultimately dismissed. The evidence that the d efenda nt had not t

imely reporte d his arr

est was disputed a

nd the re cord doe s not indic ate any particular guidelines in that rega rd. What is apparent is that the supervising officer was dissatisfied. The state was unable to establish that the defendant had incurr ed significant debt without prior approval. There was no proof that the defendant had either possessed alcohol or any controlled substanc e or had f ratern ized with those who

traffic ked illeg al substa

nces. Ne verthel ess, the purpose of the Community Corrections Ac t of 1985 was to provide an alternative m eans of punishmentfor "se

lected, nonviolen

t felony offende rs infront-end

community

based al ternativ es to incarceration." Tenn. Code Ann. § 40-36-103(1). Even though a def endant meets the minimum require ments for par

ticipatio n in a comm

unity corr

ections program, that does not mean that he or she is entitle d to be sen

te nced under the Act as a matter of law or right. See State v. Taylor , 744 S.W.2d 919, 922 ( Tenn. Cri m. App. 1987). Because the prog ram is a "last chance," opportunity for those who

would othe

rwise be incarc erated

in a correctional institution, trial courts must be given-4-

substantial discreti onary

auth ority in order to weig h legitimate societal aims against a potential benefit to the defendant. See Tenn. Cod e Ann. § 40 -36-106( a); State v. G riffith , 787 S.W.2d 340, 342 (Tenn. 1 990). Thi s court, w ith its limit ed s cope of review, cannot substitute its judgment for that of the trial judge even if our result might have been different.

This record

establishes that one prior revocation warrant had been filed before the warrant at issue. The trial court had granted some lenienc y in that instance and, even though the defendant had made progress during his time in the prog ram, di d not abus e its discretionary a uthority by enterin g an ord er of re

vocation on the sec ond warr

ant. As ind

icated, the defe

ndant had failed to timely perform his community servic e obligations, had fa il ed to pa y the fee s associa ted with participation in the program, had failed to appear for drug screens, and, ac cording to some of the testimony, had demonstrated a r esistance towards complete candor with his probation office r. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE