### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ma y 11, 200 5 ST A TE OF TE N N ES SE E v . ER IC ON TA D A M A N F LE N OI D
Direc t Appeal from the Cr im inal Cou rt for Sum ner County No. 405-2003 Jane W. Wheatc raft, Judge

No. M2004- 02471-CCA -R3-C D - F iled Jun e 30, 2005

Th e app e lla nt, Er ic on ta

Da ma n F lenoi d, pl ed g uil ty in the Sum ne r C ou nty

Cr imi na l Co urt to ag g rava ted burg lary

and robbe ry . He r ece ived a total eff ective sentenc e of ten y ear s, with one y ear to be serve d in confineme nt and the re mainder on pr obation. Subsequently , the trial court revoke d the appe llant’s probation, finding that the appe l l an t fa i l ed to complywith the terms of probation. Th e tr ia l c ou rt

or de re d th e app e lla nt to se rv e his se nte nc e s in c on fi ne me nt. Th e app e lla nt a pp e a ls. Upon re view of the rec ord and the parties’ briefs, w e af firm the judg ments of the trial c ourt.
Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Cr im ina l C our t a r e Affir m e d.
N OR MA M C G EE O G LE , J ., delivere d the opi nion of t he court, in which A L AN E. G L EN N and R O BERT W. W EDEMEYER , J J ., joined. David A. Doy le, Gallatin, Te nnessee (at trial a nd on appea l), and Roge r A. Sindle, Hender sonville, Tenne ssee ( at trial), f

or the a ppellant, Ericonta

Daman F lenoid.
Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; B e nja min A. B a ll, As sis ta nt A tto rn e y Ge ne ra l; L awr ence Ray

Whit ley , District Attorney Gene ral; and C. Way ne Hy att, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
. OP IN ION
I n May 2003, the S umner Count y Gra nd J ury returne d a three-c ount indictment ag ainst the appell a n t. I n Co u n t o n e , th e ap p e ll a n t w a s c h ar g e d w ith a g g r a v a te d b u r g la r y
. I n Co u n t two, the app e lla nt w a s c ha

rg e d w ith a g g ra va te d rob be ry . I n Co un t th re e , th e app e lla nt w a s c ha rg e d w ith criminal impersona tion. Subseque ntly , on J anuary 9, 2004, the appe llant pled g uiltyto ag g rava ted burg lary on Count one, to robbery on Count two, and the cha rg es on Count three w ere “re tired.”
At the g uilty plea hearing, the State rec ited the following fac ts unde rly ing the appellant’s c on vic tio ns :-2- [T] he g ener al fa cts of this case would show that on Marc h 20 , 2003, th
acc or d in g to a n a f

f id a v it f il e d b y I n v e s ti g a to r

Je f f Pe tt y o f the Gallatin Police Depa

rtment, this office r responded t o an ag g rava ted ro bb e ry a t 13 9 Cr e e ks ide Cou rt

. Up on arriva l th e of fi c e r s po ke wi th the victim, Misty Har

rison, that stated t hat two male blac ks, wea ring bandanna s over their mouths, ha d burst into he r home arme d with a small handg un and dema n d ed m o n ey . Ms. Harr ison stated she’d be g g e d f or he r l if e a nd wa s in fe ar sh e wa s g oin g to d ie . T he vic tim stated that they

took $60 in US currenc y from her

. L a te r o n , th e o f f ic e r r e c e iv e d a ti p s tati n g th a t th e [ap p e ll a n t] , Mr. Fle noid, had committed this robbery . The off icer made c ontact with the [appellant] i n the lobby of the Ge nera l Sessions courtroom at a la te r d a te

. T h e [ap p e ll a n t] g a v e a f a ls e n a me a n d a c te d very nervous. The [appellant] was arre sted for c riminal impersonation and was broug ht up to the police station. He was interviewe d afte r he w as g ive n h is M ir a nd a

wa rn ing s, a nd he didc on fe ss t o h is r ole in this robbery , and later stated that the re ason he lied to the of fice r wa s that he didn’t re alize he was a police off

icer

. Yo ur Ho no r, the re are so me ind ic a tio ns in a dd iti on to the fa c ts stated in the af

fidavit that perha

ps these individuals ha d g one in there looki ng fo r d ru g s, a nd ba se d o n th e ba c kg ro un d a nd his tory a t th is location, that possibly

could have been pr eviously there

. The State re commended tha t the appellant r ece ive a f our-y ear sentenc e for

his ag g rava ted burg lary conviction and a

six -y ear sentenc e for h i s ro b b ery conviction, with the sentenc es to be ser ved c on se c uti ve ly . The Sta te a sk e d th e c ou rt to m a nd a te that on e y e ar o f the se nte nc e be se rv e d in c o n f in e me n t, a n d th e r e ma in d e r o n in te n s iv e p r o b a ti o n
. A d d it io n a ll y , th e St a te a s k e d that the app e lla nt b e g ive n p re tr ia l ja il c re dit s. The trial c ou r

t qu e s ti o n e d

th e a p p e ll a n t t h o r o ug hly , asce rtaining that the appe llant understood the pleas he was e ntering . The a ppellant was a war e of the convicti o n s an d s entenc es he w as rec eiving . Further, the appellant acknowledg ed that as conditi ons of his probation, he wa s require d to obtain a Genera l Equivalency Diploma (GED) , submit a DNA sample to the Te nnessee Bur eau of I nvestig ation (TB I ), obtain and ke ep full-time employ ment, and pass drug tests. The trial court a c c e pte d th e ple a s. There afte r, on May

21, 2004, two months a fter the appellant was rele ased f rom confine ment and placed on proba tion, the appellant’s pr obation office r filed a probation re vocation wa rra nt ag ainst the appe llant. The trial court held a hearing on the alleg ations contained in the revoc ation war rant. De bbie King , the appe llant’s probation off icer , testified that the appe llant had re ported re g ula rl y sin c e be ing re le a se d f

ro m c on fi ne me nt. Ho we ve r, the app e lla nt h a d fai led to sub mit a-3-

DN A s a mpl e to the TB I , f a ile d to e nr oll in G ED cla ss es, and faile d to pr ov ide pr oo f o f f ull -t ime employ ment. King testified that the appe llant was re quired t o wo rk a minimum of thirty -five hour s per wee k. She stated that the a ppellant g ave her one pay stub ve rify ing f ifty -six hours of e mploy ment for a two-we ek period, but the appellant neve r submitted anot h er pay stub to verify

employ ment.
Further, King testified that on May 6, 2004, she aske d the appe llant to submi t a urine sa mple. She explained that the appellant ha d two hours in which t o comply with this request, but he wa s unable to provide the sample. On Ma y 13, 2004, the ap p el l an t tested positive for marijuana. On May 20, 2004, the appe llant tested positive for mar ijuana and coca ine. King stated that the a ppellant told her that he thoug ht his probation had bee n violated on May 6; theref ore, he decide d to smoke marijuana

. Th e appell ant testif

ie d th a t he didno t e nr oll in G ED c la sse s o r s ub mit a DN A s a mpl e beca use, in order

to perform either task, he was require d to have two forms of identific ation. The appellant stated that he did not have two forms of identification. He asserted that he applied f or a new soc ial secur ity car d, but he had not rec eived the car d at t he ti me of the r evocation hearing . The appellant c ontended that he was e mploy ed for much of his proba tionary p er i o d ; h o wever, he w as unawa re tha t he was re quired to submit all of his pay stubs to King. The appellant a dmitted that he ha d s mok e d ma

ri jua na , c on te nd ing that he did so be c a us e of his c on c e rn that K ing wo uldvio la te his probation. The a

ppellant theorized t hat he tested positive for c ocaine beca use an unknow n party

had lace d his marijuana with coc aine.
At the c on c lus ion of

the he ari ng , th e tr ia l c ou rt fo un d that the app e lla nt wa s no t a c re dib le witness. Further, the c ourt stated:

I un de rs ta nd that he is y ou ng , bu t I a lso un de rs ta nd that th e se we re ve ry vio lent off

ense s. Th e y

we nt i nto so me on e ’s ho us e wi th bandana s over their

fac es , put a g un to her fa ce to take money , and then I g ive him a bre ak.
T h e c h ar g e w a s r e d u c e d f r o m a g g r a v a t e d r o b b e r y t o r o b b e r y. He wa s g iven a c ommunity -base d sentenc e and is using a controlled substance, ma

rijuana, te sted positive for coc aine

. That is not indicative to me of a

person who is see king to be reha bilitated.
T h i s i s a p e r s o n t o m e w h o i s p o s i n g a t h r e a t to thi s community , and for

that rea son, I ’m g oing to r evoke his probation a n d s e n d h i m t o t h e p e n i t e n t i ar y. On appe al, the appe llant challeng es this ruling.-4- II. Ana lys is Up on fi nd ing by

a prepo nd e ra nc e of

the e vid e nc e that th e app e lla nt h a s v iol a te d th e te rm s of his probation, a trial court is authorized to order an appe llant to serve the ba lance of his orig inal sentenc e in confineme nt. See Tenn. Code Ann. §§ 40-35-310 and -311(e ) (2003) ; State v. Harkins , 811 S.W .2d 79, 82 (Tenn. 1991). Furthermore , probation re vocation re sts in the sound discretion of the trial court and will not be overturne d by this c ourt absent an abuse of that discretion. State v. L eac h , 9 1 4 S .W.2d 104, 106 (Tenn. Crim. App. 1995). An a buse of discr etion exis ts when “the rec ord co n ta in s n o s u b s ta n ti a l e v id e n c e to s u p p o r t th e tria l c o u r t’ s c o n c lu s io n th a t a v io lati on has occur red.” State v. Conner

, 919 S.W .2d 48, 50 (Tenn. Crim. App. 1995)

. On appe al, the appellant admits tha t he smoked marijuana while on probation. Howeve r, he arg ue s th a t
the trial court failed to exercise a consc i enti ous and intellige nt

judgme nt in determining t hat the appe llant should not be give n an a d d i t i o n a l o p p o r t u n i t y t o r e h ab i l i t a t e h i m s e l f a n d r e t u r n t o s o c i e t y. The a ppellant re spectfully

submits t hat the trial c ourt should have deter mined that the appe llant was suitable for rele ase into the c o m m u n i t y. The trial c ourt found that the a ppellant violated the terms of his probation and that he possessed poor pote ntial f or reha bilitation. From our re view of the rec ord, we conclude that the trial c ou rt didno t a bu se its dis c re tio n in fi nd ing that th e app e lla nt v iol a te d h is p ro ba tio n. Th is i ssu e is without merit. III. Conclusi on Finding no err or, we aff

irm the judg ments of the trial c ourt.

___________________________________ NORMA McGEE OGLE, J UDGE