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

Briefs M ay 18, 2004
STATE O F TENN ESSEE v. HERBER T RUSS ELL JOHN SON, A lias
Direct Appeal from the Criminal Court for K nox County No. 73735 Mary Beth Leibowitz, Judge

No. E2003-02580-CCA-R3-CD May 26, 2004

The defendant, Herbert Russell Johnson, appeals the revocationof his probation, arguing that the trial court erred in failing to consider f urther a lternati ves to inc arcer

ation bef ore rev oking his probationand ordering

the reinstatement

of his original sentence. Beca use the record reveals there
was substantial evidence in supportof the trial court’s decision, we affirm the judgme nt of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN , J., deliver ed the opi nion of the

court, in which G A RY R. W ADE , P.J., and J OE G. R ILEY , J., joined.

Mark E. Stephens, District Public Defender, and Jamie Niland, Assistant Public Defender, for the appellant, Herbert Russell Johnson.

Paul G. Summers, Attorney Gene ral and Reporter; Renee W. T urner, A ssistant A

ttorney Genera l; Randall E. Nichols, District

At to rn ey General; and Patricia Cristil, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

FACTS

OnNovember

7, 2001, th e defen

dant pled guilty in the Kno x County

Criminal Co

urt to two counts of forg ery , one a Cla ss D felon y a nd one a Cl ass E felony. The tria l court se ntenced him to consecutive terms of

four yea rs and two y

ears, r especti vely , for an e ffectiv e senten ce of six y ears in the Department of Correction, but suspended both sentences, placing the defendant on supervised probationfor a tota

l of six y ears. Among other conditions of probation, the defendant was ordered to p ay court costs and restitution. On April 25, 2002, the trial court amended the terms of the defendant’s probation by

ordering that he reside at Steps House, a drug treatment halfway house in Knox County.-2-

On July 18, 2002, a probation violation warrant was issued alleging tha t the defendant had fa iled to p ay his supervision fee s for three months, to provide verification of the pay ment of restitution and

court costs, and to reside at the halfway house as ordered. On January 9, 2003, the probationviolation warrant was amended to reflect that the de fendant had fail ed to comp ly

with his probationofficer’s instructions to pay $100 he owe d the halfway house and, therefore, was no longer at the residence. At some point thereafter, the defenda nt appar ently reached an agre ement whereby he was allowed to move in with his mother and have the supervision of his case transferre d to the probation office in Jefferson County

. Consequently, on May 8, 2003, the trial court

dismissed the petition for revocation of probation.

OnAugust 20, 2003, another probation violation warrant was issued alleging tha t the defendant was in arrears on his probation fees, owed three mo nths of co

urt costs, and had f

ailed to report for two scheduled appointments with his probation officer. The warrant further alleg ed that the defendant had left his proposed residence, failed to return telephone calls to his probation officer, and that his current whereabouts were unknow n.
A probation revoca

tion hear ing was held on Se

ptemb er 25 , 2003. Ann Little, a probation officer in Knox County, testified that she supervised the defendant from Dece mber 2002, following the retirement of his previous Knox County probation offic er, Sue Littleton, until his case w a s transfer redto Jeffer son County in May 2003. According to Little’s re cords, Littleton had filed a violation of probation

report on the defendant on Februar y 7, 2002, based on his failure to report in January 2002 and his February

4, 2002, positive drug screen for coca ine, and a second violation of probation report on May

23, 2002, based on his nonpayment of c ourt costs and fees.

Little testifie d that, at

the time sh e took ove

r his cas e, the de fendant

was l iving with his mother in Je ffersonCounty

instead o f at the h alfway house be cause he

owed the halfway house money he was unable to pay . She said the defendant was also e

xperienc ing diff

iculty in pay ing his court costs and fees. However, despite his financial diff iculties, he showe d some ove rall improve ment, as he had secured employ ment, had not picked up any additional charges, and h a d tested negative on his drug scree ns.
Little te st if ie d t ha t t he de fe nd an t w as “c ou rt es y supe rvised” by Of ficer Montgomery , a Jefferson County probation office

r, in Apri l 2003 and

that his probation violations were dismissed inMay. After

their dismissal, the defe ndant wa s officially transf erred to Jefferson County , under the condition

that he c ontinue to

reside w ithhis mother. According to Little’s re cords, the defendant reported as required in June but failed to report in July, missing twoscheduled appointments. He also failed to pay his cour t costs and fees. In add i tion, Montgomery ha

d learned from the defendant’s mother that he had not lived a t her re sidence

since July

25, and sh e did not kn

ow his whereabouts.

The defendant testified

he missed his July appointments with his probation officer because his truck broke down, leaving him stranded in Knoxville. While there, he struck up a conve rsation with a woman whose father had just had heart surg ery at F ort Sanders Hospital and was in the-3-

IntensiveCare Unit (“ICU”) . Because he had nowhere else to go, he stay

ed with the woman

in the ICU lounge until her father was moved to a hospital room, at

which point he stayed in the hospital
room to care for the father while the woman “ went to brain s urgery

” “[b]ec ause she had a . . . car wreck and her heart fell out.” Upon questioning by the trial court, the defendant clarified that

the woman had gone to brain therapy , rather than brain surgery . The defendant testified that his truck was “ruined,” and he had sold it during the time he wa s staying in the hospital.

The defendant

acknowledged

he made n

o attempt t

o contac t his proba

tion offic er durin

g his time in Kno xv il le a nd p rov id ed t hi s fu rth er e xp lan ati on f or h is st ay: “ I did n’t do n ot hi ng. I jus t .

. . Idon’t know, more less wanted to get away from the house for awhile since I was away

from it.” Later in his testimony, the defendant said that he ha d “wanted to do something besides work, work, work,” but now realized he had to work. The defendant testified he c ould return to the same job, as his former e

mploy ers w ere “ wanting

[him] to come b ack.” H e said tha t, if the tr ial cour t should return him to probation, he would re main in his mother’s home, travel only to and f rom work, and have his mother send in his court costs and fees for him, because he knew he had “to do rig

ht this time.” He also said that

he was willing to go to a halfway house if the trial court chose to make that a condition of his probation.

At the conclusionof the hearing, the trial court decla red the defendant a technical violator, finding that he had violated the terms of his probation by abscondingto Jeffer son County , failing to report as sched uled to his

p robati on officer, and failing to let any one know his whereabouts. The trial court fu

rther fo und th at, given h is history , the def endant w ould be unable to su ccessf ully complete a term of supervi sed rele ase. Accordingly , the trial court revoked the defendant’s probation and ordere d that he s erve his origina l sentenc e in inca

rcera tion, but su

bject to a ny e arly release or credits his technical violator status should allow.

ANALYSIS

The defendant argues that the trial cour t abused its discretion in revoking his probation. He conced es that he violated the terms of his probation by his failure to reside at his stated residence, to report for his scheduled probatio n meeting s, and to contact his probation officer, but contends that the first two v iolations resulted from his broken truck and his financial difficulties, rather than a wilful refusal to comply with the ter ms of probation. The defend ant ass erts that he was in compliance with the terms of his probation before his truck broke do wn in Knoxvil le and ar gues tha t, inlight of

his n onviolent offender status and the technical nature of his violations, the trial cour t should have used less restrictive measures than incar ceration, such as imposing closer supervision and more one rous cond itions of pr

obation, t o addres s his failu

re to re port. The State argues that the trial court acted within its discretion in revoking the defendant’s probation and ordering him to serve his sente nce in confineme

nt.

Tennessee Code Annotated sections 40-35-310 and 40-35-311 grant the trial court the power to revoke a suspended sentence and to re instate the origina l sente nce if the court finds by the preponderanceof the evidence that the defendant has violated the terms of his or her probation and-4-

suspension of sentence. Tenn. Code Ann. §§ 40-35-310, -311 (2003). The revocation of probation lies within the

sound disc

retion of the trial court. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991); State v. Stubblef

ield , 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997); State v. Mi tchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse of discretion in a probation revocation case, “a defendant must demonstrate ‘that the record contains no substantial evi dence t o support the conclusionof the trial judge that a violation of the conditions of probation has occurred.’” State v. Wall , 909 S.W.2d 8, 10 (Tenn. Cr im. A pp. 19 94) (q uoti ng State v. D elp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). We review this issue, therefore, for a n abuse of discretion.

The trial court considered the defendant’s ar gument that he should be returned to probation with more re strictive

condition s imposed, including his proposal

that he be

require d to live a

gain in
a halfway house , but found that, based on his history, he stood little chance of s uccessf

ully comply ing with t he condit ions of a s

uspende d sentenc e: Well, of course, that’s what we’ ve done o n severa l occasi ons. We require d him to stay at Steps House, and he did work, but he didn’tpay, and he

didn’t stay

at St eps House. And then we did our best to find h im his opport

unity to get ba ck to Jeffe

rson Count

y so that he could l ive with hi s mother, which is what he wanted. And as the General just pointed

out, [the defendant] decided to take his life inhis hands, and he went and liv ed at Fo rt Sanders Hospital with strangers in the ICU, didn’t tel l Mr . Montgomery . Nobody knew where [the defenda

nt] was. I f they

did know w

here [the defenda nt] was, nobo dy t

old the ap propria te author ities.

He’s really

- - [the de fendant

] at times ha s done pretty g ood when he wante d to do, but I

don’t think [the defendant’s] ever been able in - - even in Ms. Littleton’s time, I think, the y helped him as much as they could, and Ms. L ittle has too, to get

throug h regular probation. Anything that’s be en mor e requ ired of [th e def

enda nt], he’s never been able to do. And, I think - - I think asking him to do those thin gs now is just setting him back up to go b ack thro

ugh this.

The trial court

additionally noted

that the d efenda nt had obviously

manage d to commun

icate with someone i

n order to sell his truck while he was in Knoxville and, thus, could reasonably have been expected to telephone his probation officer, had he de sired to do so.

The preponderance of the evidence clearly shows tha

t the def endant vi olated th e terms of his probationby l eaving

his mother’s residence, missing his scheduled probation meetings, and failing to contact his probation officer. Although the defendant a rgues that he lacked the financia l resources to return to Jefferson County, he ha d, according to his own testimony , sold his truck while i n Knoxville, which presumably would h ave placed s ome resources at his disposal. Moreover, he admitted that at least one reason for his continued absence wa s his dissatisfaction with the daily gr ind-5-

of work and his desire to get away f rom his mother’s house. The defendant further admitted that he had no excuse f

or his fa ilure to telephone his probation officer to let him know his current wher eaboutsand situation. The record reflects that more string ent conditions of probation, including placement

in a halfway

house, have already

been attempted with the defendant, to no avail. Under thesecircumst

ances, we find no abuse of discretion in the trial court’s revocation of the defendant’s probation and reinstatement of his original sentence.

CONCLUSION

Based on the foregoing authoritiesand rea soning, we affi rm the judg

ment of the

trial cou rt.

___________________________________ ALAN E. GL

ENN, JUDGE