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### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT NAS HVILLE A ssi gne d on Br ie fs O ct obe r 26, 200 5

TON Y D UA NE WAD E v. S TAT E OF TEN NES SEE

Appeal f romthe Circ uit Court for Montgom ery C ounty Nos. 40400676, 40400558 & 40400613 John H. Gasaway, II I, Jud ge

No. M2005- 00617-CCA -R3-C D - F iled Dece m ber 12, 2005

I n three separ ate case s, the Def endant, Tony

Duane Wade, pled g uiltyto two counts of forg ery and two counts of ag g ravated burg lary . I n acc ordanc e with a plea ag ree ment, the trial court sentence d the De fe nd a nt to an ef

fe c tiv e se nte nc e of

te n y e ars , to be se rv e d o n c omm un ity c or re c tio ns

. Subsequently , the trial court found t hat t he Defenda nt had viol ated his community corr ections and order ed him to serve te n y ear s. The De fenda nt now appea ls contending that the trial court abused its discretion when it r evoked his c ommunity corr ections sentenc e. Finding no reve rsible er ror, we aff irm the judg ment of the trial c ourt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and J A M ES C UR WO OD W I TT , J R ., J J ., joined.

Patrick G. Frog g e (on appea l), Nashville, Tennessee, Coll ier Goodle tt (at g uiltyplea he aring ) for the Appellant, Tony

DuaneWade.

Paul G. Summers, Attorney Gene ral a nd Reporter ; Sophia S. L ee, Assistant Attorney Gene ral;John W. Carne y , J r., District Attorney Gene ral; J ohn E. Finklea
, Assistant District Attorney Gene ral, for the Appellee , State of Tenne ssee.

OP IN ION I. F acts

The De fenda nt pled g uiltyto: t wo counts of f org ery in case number 40400676; one c ount of a g g r a v a t e d b u r g l ar y i n c a s e n u m b e r 4 0 4 0 0 5 5 8 ; a n d o n e c o u n t o f a g g r a v a t e d b u r g l ar y in c a se number 40400613. The trial court sentence d him in accor dance with a plea a g ree ment to four y ear s for e ach of

the forg ery

convictions and ten y ear s for e ach of the ag g ravated burg lary

convictions, and2

it o rd e re d th a t th os e se nte nc e s run c on c ur re ntl y to ea c h othe r fo r an e ff e c tiv e se nte nc e of

te n y e ars

. On No ve mbe r 4, 2 00 4, the tr ia l c ou rt or de re d th a t th e De fe nd a nt’ s se nte nc e be se rv e d o n c omm un ity

corr ections. On De cembe r 8, 2004, the trial c ourt issued a war rant alleg ing that the Def

endant ha d violated the terms of his c ommunitycorr ections. At a he aring on this iss ue, the f ollowing oc curr ed:

Ge ne L e wi s, a

se nio r c a se of

fi c e r f or the Mo nt gomer y , Rob e rt so n Co un ty Com mun ity Cor r e c ti o nPr o g ram, testified tha t he re quested a violation of the Def

endant’ s communitycorr ections sentenc e. He said that during a re cords c heck his off ice discove red tha t, on Dec ember 5, 2004, the Def endant wa s arr ested for

theft an d ev ad i ng arr est. L ewis provided a certified copy

of the conviction on that ar

rest, which showed that the Def endant pled g uilty to, a nd was c onvicted of, the ft on Fe bruary

15, 2005, and he was sentenced to eleve n months and twenty -nine da y s for that off ense.

The De fenda nt testified that he wa s out of jail for approxi mately one month when he “took

so me dr ug s. ” He sa id that he co uld no t fin d emp loyme nt, wh ic h ups e t him. He sa id tha t he fi na lly g ot a job, working for the light department where he was previously employ ed, and, when he was hir e d, he tho ug ht tha t he ow e d it to h ims e lf

to c e le br a te . H e sa id tha t he we nt b a c k to doin g the sa me thi ng s th a t g ot h im i n tr ou ble or ig ina lly , a ndtho se thi ng s led to his arr e st fo r the ft a nde va din g arr e st. The De fenda nt said that he g ot hired and was supposed to being working on Monday , but he was

arr ested on Sunday

night a nd never

went to work.

The Def endant testified that he was thirty -five y ear s old a nd was living with his g randmother

. He sa id that he did not pay her a ny rent, but he did pa y for his upke ep. The Def endant testified that he ha d f o u n d G o d a n d
, i f

t h e t r i a l j u d g e a l l o w e d h i mt o s t a y o n c o m m u n i t y

c o rr e c t i o n s , h e wo uld prea ch the wor d to every

body . He also said that he ha d been to prison before for f our y ear s, and he had bee n using dr

ug s and alcohol befor e he went to prison. He said that he rec eived some drug and alcohol counse ling, but it was not helpful. The Def endant testified that, when he w as y oung er, he

wa s in a “ bo y s’ ho me ” fo r a tot a l of app ro xima te ly thr e e y e ars . T he De fe nd a nt s a id tha t a ll o f h is

c ha rg e s w e re stric tly

dr ug a nda lc oh ol r e la te d o ff e ns e s.

On cross-e x amination, the Def endant said that, when he pled g uilty in November of 2004, the trial judg e told him that he was fa cing twenty -eig ht y ear s in prison. He conc eded that he was out of jail le ss tha n th irty

da y s b e fo re he wa s a

rr e ste d, bu t he sa id tha t he wa s “ po we rl e ss o ve r [h is] addiction.”

Ba sed upon this evidence , the trial court found:

The Court finds by

a preponde ranc e of the e vidence that [t he De fenda nt] violated the terms and c onditions of the community corr ection sentences in that he was convic ted of the c rime of misdemeanor theft of pr operty and that by

his own admission he used ill e g a l dr ug s w hil e he wa s o n a

re le a se status

.

T h e h i s t o r y o f

[ t h e D e f e n d a n t ] h a s –a l t h o u g h i th a s n o t b e e n p r e s e n t e d t o d a y, the fa c t th a t he is a

ra ng e tw o mu lti ple of

fe nd e r s pe aks fo r i tse lf

that he ha s a3

sufficie nt criminal history to war rant that classification; and the fac t that his criminal activity , by

his ow n admission, g oes back to w hen he was a juvenile mea ns that [t he Def enda n t ]
, who’s now 35, has time and time ag ain, over a cour se of time, commencing when he was a juvenile, has c ontinued to violate the law.

An d a lmo st t o th e da y

a mon th a ft e r h e e nte re d a

ple a of g uil ty a nd wa s se nte nc e d to the se terms of . . . c ommunitycorr ection, which if restruc tured c oul d am o u n t t o as much a s 28 y ear s of

c on fi ne me nt at th e De pa

rt me nt o f C or

re c tio n, he g oe s o ut a ndc omm its a no ther c ri me a ndus e s a
c on tr oll e d s ub sta nc e s th a t is

. . . il le g a l.

To believe that if place d on a release status ag ain he somehow i s g oing to be a law a biding c itiz en is just sim ply not cred i b l e. Tha t belief would just be

unwar rante d.

I ’m not g oing to r estructur e his sentenc es, but he is orde red t o serve the eff ective te n y ear

sentenc e in conf

inement at the De partment of Corr ection. . . .

I t is from this order that the De fenda nt appea ls.

II. Ana lys is

On appe al, the De fenda nt contends that the trial court abused its discretion when it revoke d his communitycorr ections sentenc e. Revoca tion of probation or a community corr ections sentenc e is subject to an abuse of discre tion standard of r eview, r ather than a de novo standard. State v. Har kins, 811 S.W .2d 79, 82 (Tenn. 19 9 1 ). Di s cr etion is abused only if the re cord c ontains no substantial evidence to support t h e conclusion of the trial court that a violation of probation or community corr ection sentenc e has occur red. I d.; State v. Gre g ory , 946 S.W .2d 829, 83 2 (Tenn. Crim. App. 1997). Proof of a violation need not be established bey ond a re asonable doubt, and the evidenc e nee d only

show that the trial j u d ge ex er cised a conscie ntious and intelligent judg ment rathe r than act i n g ar b i t rarily . Gre g ory , 946 S.W .2d at 832; State v. L eac h, 914 S.W .2d 104, 106 (T e nn . Crim. Ap p. 19 95 ). F urthe r, up on fi nd ing a vio la tio n, the tr ia l c ou rt ha s the aut ho ri ty to revoke community

corr ection and “ rese ntence the def endant to any

appropriate sente ncing alternative, including inc arc eration, for any period of time up to the maximum s entenc e provide d for the of fe ns e c omm itt e d, le ss a ny tim e a c tua lly

se rv e d in a ny com mu nit y -b a se d a lte rn a tiv e to incar cer ation.” Te nn. Code Ann. § 40-36- 106(d)( 1).

On appe al, the De fenda nt in this case does not de ny that he violated the terms and c ondition of his c omm un ity

c or re c tio ns se nte nc e , b ut h e c onten ds th at the tr ia l c ou rt ne ith e r p ro pe rl y considere d the sentenc ing principles articulated in Tenne ssee Code A nnotated sec tion 40-35-103(1) nor provided a dequate fac tual finding s when it order ed that the De fenda nt’s community corr ections sentenc e be r evoked. We cannot ag ree

. Tenne ssee Code A nnotated sec tion 40-35-103(1) sta tes that

se nte nc e s in vo lvi ng c on fi ne me nt s ho uldbe ba se d o n a fi nd ing that c on fi ne me nt: (1 ) i s n e c e ssa ry to protec t society

by restra ining a defe ndant with a long history of criminal conduct; (2) is nec essary4

to avoid depre ciating the seriousne ss of the off ense; or ( 3) bec ause othe r less re strictive meas ures have r ece ntly

been a pplied unsucce ssfully to the Def endant. I n this case, the trial court found that the Defenda nt violated hi s community corr ections by being arr ested for theft, a c rime to which he later pled g uilty
, and by using illeg al drug s. The trial c ourt noted the De fenda nt’s previous criminal history , which wa s sufficient to make him a Rang e I I offe nder, a nd he noted that this criminal history dated back to the t ime that the Defenda nt was a juvenile. The trial c ourt found that the De fenda nt had only been on c ommunity

corr ections for

thirty day s when he violated his sentenc e by committing theft.

We c on c lud e that th e tr ia l c ou rt a de qu a te ly art ic ulate d it s f

ind ing s o n th e re c or d a ndthat it didno t a bu se its dis c re tio n w he n it or de re d th a t th e De fe nd a nt s e rv e the ba la nc e of his se nte nc e in prison. The De fenda nt is not entit led to relief on this iss ue.

III. Conclusi on

I n acc ordanc e with t h e foreg oing a uthorities and re asoning , we a ffirm the tria l court’s jud g me nt.

____________________________________ ROBERT W. WEDEMEYER, J UDGE