# FILED May 28, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE FEBRUARY 1999 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9801-CC-00017 Appellee, ) ) Blount County v. ) ) Honorable D. Kel ly Thomas, Jr., Ju dge LOWELL CLAYTON GREDIG, JR., ) ) (Probation Revocation) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Natalee S. Hurley John Knox Walkup Assistant Public Defender Attorney General & Repor ter 419 High Street 425 Fifth Avenue North Maryville, TN 37804 Nashville, TN 37243-0493 (At Trial) Michael J. Fahey, II Gerald L. Gulley Assistant Attorney Gener al P. O. Box 1708 425 Fifth Avenue North Knoxville, TN 37901- 1708 Nashville, TN 37243-0493 (On Appeal) Michael L. Flynn District Attorney General 363 Court Street Maryville, TN 37804-5906 Lisa McKenzie Assistant District A

ttorney General 363 Court Street Maryville, TN 37804-5906

OPINION FILED: ____________________________

_________ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE-2- 

### O P I N I O N
The appellant, Lowell Cla yton Gredig, Jr., ap peals as of right from the rev ocation of his probation. The appellant challenges both the revocation and the deni al of an alternat ive sentence, insisting that the trial court er red in revok ing his probation and in sentencing him to incarceration in l ieu of imposing an alternativ e sentence. After a careful review of the entire record, briefs and arguments of the parties, and applic able law, we affirm the trial court’s judg ment.

I. PROCEDURAL BACKGROUND

On December 5, 1994, the Blount County grand jury indicted the appellant in Cause No
. 8668 for statutory rape, occurring in November,1994. On October 1, 1996, th e appellantentered a plea of guilty to statutory

rape and was sentenced to ei ghteen months in the Blount County Jail. The sentence was suspended, and the appellant was placed on immediate supervised probation. Special conditions of probati on were imposed by the tr ial court.
On February 11, 1997, the tr ial court issued a

violation of probationwarrant for the appellant. The warrant was pr emised upon the appellant’s failur e t o notify his probation officer of his arrests for

assault and public intox ication on February 7 and 10, 1997; failure to maintain employment; failure to notify his probation officer of his change of ad dress; a violation of court imposed curfew; failure to attend AA or GED classes as instructed; and failure to pay court costs. On April 8, 1997, the appell ant stipulated to the viol ations. The trial court revokedthe appellant’s probation and or dered the appellant

to serve ni nety days in the Blount County Jail and then be released to intensiv e probation for the balance of the sentence.

On April 28, 1997, the Blount Cou nty grand jury i ndicted the appellant for assau lt in Cause No. 10214. On Augu st 1, 1997, the appellant pled g uilty to assault and w as-3-

sentenced to eleven months and twenty-nine days, to run consecutively to the statutory rape convicti on in Cause N o. 8668. Th e trial co urt suspended the sentence and plac ed the appellanton immediate supervised probation. The trial court entered a supplemental probation order enlarging on the special conditions of probati on to be performed by the appellant.

On May 27, 1997, the trial court issued a warrant for violation of probation, Cause No. 8668, b y the appellan t based upon his arrest for si mple assault on May 26, 1997. Again, the appellant stipulated to the v iol ation of probation. The trial cour t revoked probation, requiring t he appel lant to se rve ninety d ays and th en be re-r eleased on inten sive probation. Addition ally, the trial court ordered the appellant to reside in a halfway house for a minimum of six months as a condi tion of probation.

On November 21, 1997, the trial court issued another warrant for the appel lant for violation of probation in Cause Nos. 8668 an d 10214. The warrant alleged the appellant was arrested on November 7, 1997, for public intoxicati on a nd resisting arrest; failed to advise his probation officer about his residence or e m ployment; used alcohol; failed to reside at a halfway house; failed to report to his probation officer since November 4, 1997; and failed to pay court costs
.
After the conclusion of a revocati on procee d ing, the trial court e ntered orders on both causes on January 9, 1998. The trial court revo ked the appellant’s probation in Cause No. 8668, allowing the appellant 236 days jail credit. In Cause No. 10214, the trial court revoked the appellant’s probation for assault, modifyin g the judgment to elev e n mon ths and tw enty-nine days in j ail, fifty percent release eligibility pr ior to release on probation, and zero percent release eligibility i n al l other areas . The court allowed the appellant 62 days jail credit.

II. VIOLATION OF PROBATION-4- First, the appellant argues the tri al co urt erred in revoki ng his probation on the grounds there was no

substantial evidence to s upport the trial court’s decision to revoke probation, and the trial court consi dered only the n ature and character of the offense, thereby constitu ting “too n arrow a view” of the relevant factors. The state submits there is ample evidence in the r ecord to support the trial court’s decision.

A trial court may

revoke probation and order the imposition of the original sentence upo n a finding by a preponderance of the evi dence that a person has viol ated the conditionsof probation. Tenn. Code Ann. § 40-35-311 . The judgment of the trial court will not be disturbed on appeal, unless it appears that there has been an abuse of discretion. For an appellate court to be warranted in finding an abuse of discretion in a probation case, it must be established that the rec ord contains no substantial e vidence to support the conclusion of the trial judge that a violation of the conditions of proba tio n has occ urred. State v. Harkins, 811 S.W.2d 79, 82 (T enn. 1991). The evidence at the revocation hearing need onlysho w that the trial court exercised a conscientious and intelligent judgment in makin g its decision to revok e probation. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

A. Revocation Proceeding

Marcus Miller, probation officer,testified th at the appellant began probationary supervision on October 1, 1996, with Probatio n Offic er Carolyn Brewe r. The appellant violated this period of probation by bein g arrested for new offenses, assault and public intoxication. The appellant’s probation was thereafter r evoked, and he rec eived a nin etyday sentence in jail along with i ntensive probation. Shortly thereafter, the appe llant was arrested for simple assault. Followi ng a hearin g, the app ellant was ordered t o serve another period of ninety days and was released on intensive probation, with the sp e cial condition that he enter a halfway house for

six months. The appellant fail ed to comply with this special condition. Miller also testified that the appellant failed to pay his court costs,1 This child w as born w

hile the appella nt was s

erving one of the ninet y-day sentences. -5- failed to attend the Anger Management Progr am, and failed to report since Octobe r, 1997. During the appellant’s second perio d of intensive probation, the appellant had three new arrests.

Miller testified that the appellant was arrested twic e forpublic intoxication a nd resisting arrest in November, 1997. In December, 1997, the appellant was con vi cted of theft of property over $500 for t aking his mother’s c ar and wrecking the same. He was sentenced to eleven months and twenty -nine days. Miller agreed he had not contacted any halfway houses to determine the appellant’ s attendance or lack thereof. The ap p ellant informed Miller he had been denied acceptance at Stepp s House for failure to pay back rent.

The appellant testified he is marr ied and has a four-month-old chil d. 1 Prior tohis arrest, the appellant was employed with Burri s Wood Company, making hardwood floors. The appellant described his income “as not much.” Upon release for his secon d intensi ve probation period, the appellant attempted to enter Cornerstone,a halfway house, but his bed had been given away . The appellant then contacted S tepps House, which told him he could sleep on a couch if there was no bed available. However, Stepps Hou se refused to honor this commitment and denied hi m acceptance for non-payment of back r ent.

As to failure to report, the appellant testified that he knew he was in violation for not entering a halfway house and was too scared to r

ep ort. The appellant admitted he w as arrested in November, 1997, for publi c intoxication and resi sting arrest. This incident arose over an argument withhis mother-in-law. As to the theft of his mother’s car, the appellant testified he was drinking, got the car keys from his mothe r, went looking for his wife, blacked out and wrecked the car, overturningit three times. The appellant testified he is an al c oholic and cannot control his drinking, although he attempted treatment in 1993. During the appellant’s many arrests, he has nev er been sober.-6- In revo king the appellant’s prob ation, the trial court found cl ear evidence that th e appellantviolated the terms of probation. The trial court found the appellant continued t o engage in the same criminal activity since October, 1996, theoriginal probation ter m. In commenting on the appellant’s prior revocations, the trial court held, “Ther e’s no question that alcohol is a problem in M r. Gredig’s life, but the other problem is that nothing can be done about that if he won’t cooperat e and keeps violating the law. And that’ s what h e does.”

We find there is substantial ev idence i n this record to support the trial court’s revocation of the appellant’s probation. There is no merit to this issue.

B. Alternativ

e Sentence

The appellant contends the trial court was in error for not c onsideri ng an alte rnative sentence, such as community corrections program or split co nfi nement. Further, the appellantcontends the trial court made no findings regarding

the suitability of

alternat ive sentencing. Th e state d oes not s pecific ally a ddress this is

sue in its brie

f.

The dilemma in this cause, as to this issue, is the r ecord of th e revocation proceedings does not reflect that the issue to the appropriatene ss of an altern a tive sentence was

ever addressed to the tr ial court. The record does not contain arguments of the parties as to whether the trial court should consider such remedy, nor does thetrial court address any question of the viability of an alternative sentence in its ruling. Thus, this issue has been waivedby the appellant. Tenn. R. App. P. 27 (a)(7); State v. David Glen Haynes, No. 03C01-9602-CC-00075, 1998 WL 125560 (T enn. Crim. App., Knoxvi lle, March 23, 1998).
The trial court’s judgment is affirmed.-7- _________________

________________

______ _ L. T. LAFFERTY, SENIOR JU DGE CONCUR:

___________________________________ JERRY L. SMITH, JUD GE

___________________________________ THOMAS T. WOODALL, JUDGE