IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 26, 2020

STATE OF TENNESSEE v. JIMMIE DEAN ROY

Appeal from the Criminal Court for Hamilton County

No. 293977 Don W. Poole, Judge

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No. E2019-02263-CCA-R3-CD

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Pursuant to a plea agreement, the Defendant, Jimmie Dean Roy, pled guilty to five counts 

of identity theft and one count of identity theft trafficking, and he conceded that he 

violated the terms of his probation with respect to his prior convictions for three counts of 

burglary of an automobile and one count of theft of property valued over $1,000. The 

Defendant received an effective eight-year sentence to be served in confinement, and the 

trial court stayed the execution of the sentence and granted the Defendant a furlough to 

the drug court program. The Defendant subsequently fled the state. Following his arrest, 

the drug court removed him from the program, and the trial court ordered his sentences 

into execution. On appeal, the Defendant challenges his removal from the drug court 

program and argues that he was not afforded due process protections during the removal 

hearing. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA 

MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Julie Moya, Chattanooga, Tennessee, for the appellant, Jimmie Dean Roy.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant 

Attorney General; Neal Pinkston, District Attorney General; and Crystle Carrion, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2015, the Defendant pled guilty to three counts of burglary of an 

automobile and one count of theft of property valued over $1,000. Pursuant to a plea 

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agreement, the Defendant received an effective sentence of eight years as a Range II, 

multiple offender to be served on probation. Subsequently, he was arrested and charged 

with multiple offenses related to identity theft, as well as with violating the terms of his 

probation. On August 1, 2018, the Defendant pled guilty to five counts of identify theft 

and one count of identity theft trafficking, and he conceded that he violated the terms of 

his probation with respect to his prior convictions. He received an effective sentence of 

eight years’ incarceration to be served concurrently with his sentences resulting from his 

probation violation. The trial court stayed the execution of the Defendant’s sentences and 

granted him a furlough to the drug court program.

On August 5, 2019, drug court personnel filed a notice/request that the Defendant 

be removed from the program. According to the pleading, the Defendant had been 

sanctioned and returned to custody previously for having contact with another participant 

of the program, who was also a co-defendant in some of the Defendant’s charges, when 

the Defendant had been instructed that such conduct was prohibited. The pleading noted 

that the Defendant was released from custody on January 10, 2019, and was provided 

housing at Oxford House, a sober living facility. On the following day, the Defendant 

failed to make curfew and did not return to the facility. On Monday, January 14th, he 

reported to the drug court office and stated that he had been living with a friend in a tent. 

He failed to appear in drug court that afternoon for a status review, and a capias was 

issued for his arrest. He absconded from the drug court program for several months. As 

a result, drug court personnel requested that he be removed from the program.

A removal hearing was held in the drug court on August 12, 2019, during which 

the Defendant was represented by counsel. The drug court announced that the primary 

allegation was that the Defendant absconded from the drug court program, and defense 

counsel stated that the Defendant did not wish to challenge the factual allegations 

asserted in the notice of removal. Upon questioning by the drug court, the Defendant 

confirmed that he understood that he had the right to require proof of his violations of the 

rules of the drug court program, that he understood that he was giving up that right, and 

that he admitted to violating to rules of the program. 

The Defendant testified to the circumstances that led to him missing his curfew at 

Oxford House and his absconding from the drug court program. He stated that he 

believed curfew was at 9:00 p.m. and that when he arrived at Oxford House at 8:40 p.m.

on a Friday in January of 2019, he learned that curfew was actually at 8:00 p.m. When 

he arrived at the facility, the door was locked, and he knocked. The Defendant stated that 

a member of the facility’s staff answered the door and informed him that he was being 

kicked out of the facility. He maintained that he attempted to contact drug court 

personnel but was unsuccessful. He stated that he did not have anywhere to go and 

stayed with an acquaintance who was homeless and had a tent set up in a wooded area. 
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On the following Monday, the Defendant met with drug court personnel, who believed 

that he was being untruthful and decided that he should go before the drug court judge. 

The Defendant said he “panicked” and fled to Georgia.

The Defendant testified that while in Georgia, he lived with an older couple, 

whom he helped with home repairs in lieu of paying rent. They introduced him to an 

electrician, who hired him, and the Defendant said he maintained employment while 

living in Georgia. The Defendant also spent weekends with his teenage daughter and 

testified about repairing his relationship with her. He admitted using methamphetamine 

and marijuana when he initially absconded but maintained that he had been sober for 

three or four months. 

The Defendant stated that he was arrested in Georgia while trying to repair a 

broken taillight on his boss’s vehicle in the parking lot of a fast food restaurant. He was 

unable to repair the taillight before dark and was afraid to leave the parking lot in the 

vehicle. As a result, restaurant employees called the police. The Defendant said he 

admitted his identity to the responding police officer and acknowledged that he had 

absconded from drug court. 

The Defendant testified that drug court personnel did not attempt to contact him 

after he fled, but he acknowledged that he never attempted to contact them either. He 

explained that he fled because he knew that the drug court would send him back to jail 

and that he was afraid. He denied fleeing to Georgia to avoid apprehension and stated 

that he could have easily made a fake identification card for himself but did not do so. 

He explained that he had always planned to surrender to authorities and that he had 

wanted to establish that he “was out there doing good and not bad.” 

On cross-examination, the Defendant testified that he had been released from jail 

for about one month when he was sanctioned for communicating with his co-defendant. 

He was sent to jail for five months and missed curfew within two days of his release. He 

stated that he panicked because he thought that the drug court would not believe that he 

wished to participate in the program. He also stated that prior to his arrest, he had been 

spending the summer with his daughter and that he planned to turn himself in to the 

police once his daughter was back in school. The Defendant acknowledged that he had 

the opportunity to contact drug personnel after he absconded but failed to do so.

The drug court entered an order making extensive findings and removing the 

Defendant from the drug court program. The drug court reviewed the Defendant’s 

history of non-compliance with the conditions of the program. The drug court noted that 

upon the Defendant’s return to the program following his initial sanction for contacting 

his co-defendant in violation of the rules, the Defendant immediately violated the rules 
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with respect to curfew. The drug court found that rather than discuss “these minor 

issues” with the court, the Defendant chose to abscond from the program for seven 

months until he was recaptured by law enforcement. The drug court found that the 

Defendant’s actions demonstrated “an unwillingness to participate in a treatment 

program” and that he failed to reflect “a sincere desire to actually and fully participate in 

the program on the program’s terms—rather than on his own terms and on his own 

timeline.” The drug court concluded that the basis for removal had been established by a 

preponderance of the evidence.

The drug court found that retaining the Defendant in the program would be 

detrimental to the program and would send a message to present and future participants 

that the drug court would “tolerate those who purposefully abscond and refuse to engage 

with the rehabilitative aspects of the program itself” and that the drug court “is not 

especially serious in its mission to help bring about changes in addiction-driven criminal 

behavior.” The drug court found by a preponderance of the evidence that the Defendant 

consistently failed to comply with the rules and conditions of the program and that the 

program was not effective for the Defendant. The drug court concluded that “removal 

from the program is the only viable alternative to remedy those issues and that other 

lesser remedies would not be effective.”

The drug court ordered the Defendant removed from the drug court program and 

rescinded his furlough. The drug court transferred the Defendant’s case to the trial court 

in order for the Defendant “to show cause why he should not serve his sentences, as 

originally agreed to do on August 1, 2018, as a consequence of his plea agreement and 

agreed revocation of probation.” The drug court noted that although it was unclear 

whether due process principles required such a hearing, the termination procedures of the 

drug court program offered a former participant an opportunity for such a hearing in the 

trial court. The drug court explained that such proceedings, in which a defendant would 

be represented by counsel, were requests to modify the judgment pursuant to Tennessee 

Rule of Criminal Procedure 35 and offered a defendant the opportunity to establish that 

the previously imposed sentences were no longer in the interests of justice due to the 

defendant’s conduct in the drug court program.1

 

1 We note that the Defendant filed a pro se motion pursuant to Tennessee Rule of Criminal 

Procedure 35 following the entry of his guilty plea and furlough to the drug court. We question the 

necessity of the local procedure requiring a defendant to file a Rule 35 motion upon his or her entry in the 

drug court program and then holding the motion in abeyance while the defendant is participating in the 

drug court program and whether such a hearing set forth by local procedure following a defendant’s 

removal from drug court fits within the confines of Rule 35. See State v. Christopher Allen Smith, No. 

E2019-01345-CCA-R3-CD, 2020 WL 1887836, at *4 (Tenn. Crim. App. Apr. 15, 2020) (providing that 

“[w]hen a defendant has entered a plea agreement with a specific, negotiated sentence, that sentence may 

only be modified pursuant to Rule 35(b) where unforeseen, post-sentencing developments would permit 
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The trial court subsequently held a hearing during which the defense presented the 

testimony of Mr. Monty Reeves, a peer recovery specialist who owned two sober living 

homes. Mr. Reeves testified that the residents of the sober living homes must be sober 

prior to entry, cannot have prior convictions of violent or sexual-related offenses, cannot 

use drugs, must attend three weekly faith-based meetings and a twelve-step program, 

must adhere to a curfew, and must maintain employment. Mr. Reeves stated that at the 

time of the hearing, he had two beds available in one of his facilities.

The Defendant testified that he was willing to participate in Mr. Reeves’s program 

and that he believed the program would be more effective for him than the drug court 

program. The Defendant stated that he also had been accepted into Life Changers 

Outreach, a Christian-based program. He said that the program needed help constructing 

buildings and that he had fifteen years of experience in construction. 

On cross-examination, the Defendant testified that he first violated the conditions 

of the drug court program twenty-six days after entering the program by contacting his 

co-defendant. The Defendant denied that he was prohibited from contacting his codefendant as a condition of the program and maintained that he understood he was not 

allowed to have a relationship with her. The Defendant denied having a relationship with 

his co-defendant and explained that they were only communicating via Facebook. He 

stated that following his release from jail due to the sanction, he was only fifteen minutes 

late for curfew and became afraid when drug court personnel told him that he would be 

required to address the drug court as a result. He acknowledged that he did not tell drug 

court personnel that he was going to Georgia and that he did not attempt to contact them 

during the seven months that he was in Georgia. He maintained that he intended to return 

following his daughter’s summer break. On redirect examination, the Defendant testified 

that he went to Georgia to visit his teenage daughter, whom he had not seen in three 

years, and that he believed he would not see her for eight more years once he turned 

himself in to the police.

The trial court found by a preponderance of the evidence that the Defendant had 

violated the conditions of the drug court program. The trial court noted that the 

Defendant had been afforded multiple opportunities to participate in the program but 

continued to violate the rules and conditions. The trial court found no extraordinary 

circumstances demonstrating that removal from the drug court program and incarceration 

were not appropriate. The trial court ordered the Defendant’s sentences into execution. 

The trial court subsequently entered an order revoking the Defendant’s probation and 

 

modification of a sentence in the interest of justice”) (quotation omitted). However, we need not address 

this issue because the Defendant does not challenge the denial of his Rule 35 motion on appeal.
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requiring him to serve his sentences in confinement. The Defendant filed a timely notice 

of appeal.

ANALYSIS

On appeal, the Defendant contends that the drug court erred in removing him from 

the drug court program and that the trial court erred in affirming the removal and 

ordering his sentences into execution. He argues that his initial violations were relatively 

minor and that his absconding to Georgia did not justify his removal from the program 

under the circumstances. The Defendant also argues that the record does not support the 

drug court’s findings that he was unwilling to work with the court and that removal from 

the program was the only viable option.

This court has addressed the propriety of a trial court’s lifting a stay of a sentence 

following the defendant’s removal from a drug court program under the standards set 

forth for the revocation of probation or a suspended sentence. See State v. Tonya Renee 

Mitchell, No. M2009-00902-CCA-R3-CD, 2009 WL 5125115, at *2-3 (Tenn. Crim. App. 

Dec. 21, 2009). A trial court may revoke a sentence of probation or a suspended sentence 

upon finding by a preponderance of the evidence that the defendant has violated the 

conditions of his release. T.C.A. § 40-35-311(e). An abuse of discretion in revoking a 

defendant’s probation occurs only where there is “no substantial evidence to support the 

conclusion of the trial court that a violation of the conditions of probation has occurred.” 

State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). In exercising its authority, a trial 

court has no obligation to provide a defendant already on probation “‘a second grant of 

probation or another form of alternative sentencing.’” State v. Tracy Arnold, No. 

W2018-00307-CCA-R3-CD, 2018 WL 6266279, at *1 (Tenn. Crim. App. Nov. 30, 

2018), (quoting State v. Jeffrey A. Warfield, 01C01-9711-CC-00504, 1999 WL 61065, at 

*2 (Tenn. Crim. App. Feb. 10, 1999)).

During the hearing before the drug court, the Defendant admitted to violating the 

rules and conditions of the program as alleged in the notice of removal. The record 

reflects that shortly after he entered the program, he violated the rules by contacting his 

co-defendant, another member of the program, and he was incarcerated for five months 

as a result. Despite the fact that the Defendant had been previously sanctioned, he 

continued to violate the rules and conditions of the program. Within one to two days of 

his release, the Defendant missed curfew at the sober living facility where he was housed 

and did not return to the facility. Once he learned that he would be required to go before 

the drug court as a result of his curfew violation, he fled to Georgia, where he remained 

for seven months until he was arrested and returned to Tennessee. The Defendant 

admitted to using drugs during a portion of the time period during which he was in 

Georgia. Given the Defendant’s history of noncompliance, we conclude that the drug 
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court did not abuse its discretion in removing the Defendant from the drug court program 

and that the trial court did not abuse its discretion in affirming the removal and ordering 

the Defendant’s sentences into execution.

The Defendant asserts that the procedures employed by the drug court in removing 

him from the program violated his due process rights because he “had a right to be heard 

before any sort of determination was made in his case.” However, the Defendant has 

waived this issue on appeal by failing to raise any claim of due process violations in the 

courts below. See Tenn. R. App. P. 36(a). Accordingly, the Defendant is not entitled to 

relief.

CONCLUSION

Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm 

the judgment of the trial court.

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE