### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Marc h 27
, 200 7

STA TE OF TEN NES SEE V


### . TRIS HA PLEMMONS

Direc t Appeal from the Circ uit Court for Blou nt County No. C-13419 D . Ke lly Th om as, Jr., Judge

No. E2006-01144-CC A-R3- CD 

### - F ile d M ay 3 1, 200 7

The De fenda

nt, Trisha Plemmons, appeals the r evocation of her c ommunity corr ections sentenc e. Finding no err or on the pa rt of the tria l court, we aff irm.

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 cour t, in which J A M ES C UR WO OD W I TT , J R ., and J.C. M C L IN , J J ., joined.

Stacey Nordquist (at he aring ), Mar y ville, Tennesse e, and J. L iddell Kirk (on appe al), Knoxvill e, Te nn e sse e , f

or the Ap pe lla

nt, Tr ish a Ple mmo ns

. Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; J ennife r L

. Bl ed s o e, Assistant Attorney Gene ral; Mike F ly

nn, District Attorney

Gen era l; and Mike Galleg os, Assistant District Attorney Gene ral, for

the Appellee , the State of Te nnessee

.
OP IN ION I. F acts

Th e De fe nd ant ple d g uil ty to fa c ili tatio n of ag g ra vate d rob be ry in 200 1. She re c e ive d a six y ear sentenc e with nine ty day s in ja il, a nd the rema inder was to be serve d on probation. In 2002, she

w a s f o u n d t o h a v e v i o l a t e d

h e r p r o b a t i o n an d w a s o r d e r e d t o s e r v e s i x t y d ays i n j a i l
, f

o l l o w e d b y a return to pr obation. I n 2004, the Def endant wa s ag ain found to have violated the conditions of her pr ob a tio n, and

sh e wa s tr ans fe rr e d to c omm un ity c or re c tio ns

. F ina lly , in

20 06 , tw o c omm

un ity

c or re c tio ns vio latio n w arr ants we re iss ue d a lle g ingthe Defe nd ant f a ile d to make c ourt

c os ts pa y me nts , f a ile d to a bid e by he r c ur fe w, fa ile d to att end and pa rt ic ipate in a

tr e a tme nt p ro g ra

m, failed to c arr

y out orders g iven to her by the East Tenne ssee Huma n Resource Ag ency

(“ET HRA”), and fa ile d to ob ta in t

he c on se nt o f h e r E TH RA of fi c e r b e fo re c ha

ng ingre sid e nc e or

e mpl oy me nt. Following a hea

ring , the trial cour

t revoke d the Def

en d an t ’s comm unity

corr ections sentenc e and

or de re d h e r t o s e rv e the re ma ind e r o f h e r s e nte nce i n c on fi ne me nt. Th e De fe nd ant a pp e a ls this decision.-2-

Th e fo llo wi nge vid e nc e wa s p re se nte d at th e c omm un ity c or re c tio n s r e v oc a tio n h e ari ng : L isa S k i l es , the Def

endant’ s ETHRA Communit y Correc tions Office r, testified that she c alled the Def endant on F ebrua

ry 24, 2006, for a

random drugscre en. The person who a nswere d th e phone st ate d th at th e De fe nd ant w a s o ut w ithfr ie nd s, and sh e did no t kn owwh e n th e De fe nd ant w ou ld return. Skiles stated that if a probationer does not take a drugtest when he r off ice c alls for a

random drugscre en it is a

utomatically counted a s a positive result. Additionally , beca use the phone call wa s
ma de a t 10 :30 p. m., a ft e r t he De fe nd ant’ s 1 0:0 0 p .m. c ur fe w, sh e wa s in vio latio n of he r c omm

un ity

corr ections contra ct. Skiles also testified that the Defenda nt did not pay

her c ourt costs and fe es on time.

Skiles further testified that the Def endant wa s admitted into the Ag ape H alfwa y House on Marc h 29, 2006, and she le ft the house on Apr il 8, 2006, a fter she told the halfwa y house that her probation off

icer had g iven her

permission to leave. H oweve r, t he Defenda nt did not have any

other probation off

icer s besides Skiles
, an d Skiles denied g iving the D efe ndant per mission t o leave

. Additionally , the Def

endant did not keep Skiles a pprised of whe re she was living , also in violation of the c onditions of her rele ase. I t w ould a dditionally be a violation if the Def endant did not aler

t Ski le s to any

c ha ng e s in he r e mpl oy

ment . Skile s ta lke d w iththe De fe nd ant o n Apr il 1 0, 20 06 , to inf or m he r that a war

ra nt wa s bei ng iss ue d, and , altho ug h the De fe nd ant s tate d s he wo uld tur n h e rs e lf in, sh e ne ve r d id. F ina lly , th e De fe nd ant n e ve r c omp le te d a dr ugand a lc oh ol t reatme nt p ro g ra

m, also a violation of her

conditions of rele ase.

On cr o s s -e x am i n at i o n , S k i l es s t at eds h e d i s cu s s edwi t h t h e D ef en d an tthe episode c oncer

ning he r v iol a tio n o f c ur fe w a

nd he r f a ilure to s ub mit

to t he dr ugte st. She state d that the De fe nd ant t old her she actua lly

was at home that night, a nd she did not know why her mother

would say

she wa s not. Skiles admitted all the Def endant’ s previous drugscre ens we re ne g ative and stated that one of the re qu ir e me nts of

tr e a tme nt at A g a

pe is that the pe rs on no t w or k f or the fi rs t tw o to thr e e we e ks

. The De fenda

nt told her that she lef

t Ag ape be cause they

wer e g oing to make her quit her job.

Marc ie P ierc e, the g ener al m anag er at the W endy ’s where the Def endant wor

ked, testified that the Def

endant wor

ked ther e for approximately six months. Pierce stated that the Def endant wa s vital to her oper ations, she worke d forty hours a week, was trained to be a shift manag er, a nd she wa s on her w ay

to assistant manag er.

On cr oss-examination, P ierc e testified that she wanted to ke ep t h e Defendant on at her Wendy ’s, but she could not do so while the De fenda nt was at Ag ape. T he De fenda nt, however
, c ou ld h a ve po te nti a lly

wo rk e d at a

dif fe re nt loc a tio n, bu t th a t lo c a tio n c ou ld o nly of fe r h e r t hir ty to thi rt y -f ive ho ur s a

we e k. Ag a

pe re qu ir e d h e r t o h a ve a fu ll- tim e job , w hic h w a s th e re fo re imp os sib le with Wendy ’s. Pierce admitted she could have re hired the Def endant a fter she completed Ag ape.

The Def endant’ s mother, Donna McCullogh, testified that the Def endant wa s order ed to live with her a s a p re v i o us condition of her pr obation. McCullough state d that she and the Def endant-3-

attempted to enr oll the Defe ndant in treatment, but the Def endant pr efe rre d outpatient over inpatient treatment beca

use of he r childre n. Two other wome n lived at McCullough’ s house at that point, and both of them knew the Def endant was on probation. She said that whoeve r ans we re d t h e p hone when Skiles ca lled must have not known t hat t he Defenda nt was actually in bed asleep at that time. The two wome n did not keep up with the Def endant’ s schedule beca

use the De fenda

nt sometimes

wo rk e d n ig hts a t We nd

y ’s . O n c ro ss- e xami natio n, Mc Cul lou g h a dmi tte d th a t a pic tur e , en te re d in to evidenc e, wa s of her

and the De fenda

nt at a bar and that the De fenda

nt pr obably drank a lcohol the night they wer e ther e.

The De fenda

nt testified that the picture shown to he r mother was of her on N ew Ye ar’ s Eve. Be cause of this picture, the D efe ndant was ord er ed t o attend Ag ape. I n Marc h, when Skiles

or ig ina lly c a lle d a bo ut a ra nd om d ru g te st, the De fe nd ant wa s a sle e p in he r be d a t he r m oth e r’ s h ou se beca use she ne eded to be at work e arly the next morning. Afte r she wa s made a war e of the situation, she and Skiles wer e in c ontact, and they discussed the situation. A war rant wa s filed, on which she made bond. She wa s then instructed to at tend a f acility for he r alc ohol and drugtreatment. She pref err ed Corner stone bec ause it wa s an outpatient fa cility
, but Skiles require d her to attend Ag ape, an inpatient fa cility . Howeve r, Ag ape r equire d h er to maintain full-time e mploy ment, which she could not do at the Wendy ’s location near Ag ape. She could not f ind a suitable place of employ ment so she left Ag ape afte r eleve n day s. After war ds, she contac ted Skiles, who was ver y rude, a nd she

a tte mpt e d to re so lve the sit uatio n. Ski le s st a te d th a t a wa rr ant wa s ou t f

or he r a rr e st, and sh e sh ou ld turn herse lf in. The De fenda nt called the ja il fo r fo u r s t ra i gh t day s, but those at the jail said they

ne ve r r e c e ive d a

wa rr ant. So, the De fe nd ant s imp ly de te rm ine d sh e wo uld wa it f or he r c ourt date to arrive

. Skiles ne ver attempted to contac t her a fter tha t. The De fenda

nt testified she had not used drug s since August of 2005.

On cr oss-examination, the Defe ndant admitted this was her third violation. She admitted she had proble ms with her pre vious probation office rs and that she had pre viously tested positive for methamphetamine and marijuana

. She has not been r ece ntly working ; her husband, who works at AJ’ s b ar, too k c are of

he r. Th e De fe nd ant s tate d th a t so me of he r c hil dr e n a

re c ur re ntl y re sid ingwi th her e x -mother- in-law, who ha s custody of them. The Def

en dant admitted there would be no problems deter

mining who would care for he r childre n if she wa s incarc erated. The D efe ndant stated that she di d not call back S kiles afte r t heir c onversation about the war rant be cause she thoug ht she

wa s b e ing tr e a te d unf

a ir ly . The De fe nd ant a lso a dmi tte d th a t it wa s h e r d e c isi on

to l e a ve Ag a

pe so she would not lose her job a t Wendy ’s. Howeve r, she only worke d at Wendy ’s one day befor e she felt it was “g etting too he ated” for he r to work ther e. On r e-dire ct examination, the Defe ndant stated that she wa s simply

trying to ke ep her job, a require ment of her conditions of rele ase, w hen she le ft Ag ape. O n re- cross e x amination, the Def endant maintaine d she did not work at AJ’s Ba r.

The De fenda

nt’s husband, James Caldwell, testified that he wor ked at AJ’s, and there was no Trisha Caldwe ll who worked there. He was with the Defenda nt when she called Skiles the thre e times after

she left Ag ape. Ca ldwell testified that Skiles acte d as t h o u g h there was no hope of

re co n ci l i n g t h e s i tu at i o n

. On cr o s s -e x am i n at i o n , C al dwe l l s t at edt h at h e me t t h e D ef en d an tt h ro u gh

an ac quaintance of his from AJ’s. The Def endant f elt she was doing the r ight thing by maintaining-4-

her e mploy

ment at Wendy ’s, which wa s specific ally require d of her

by the trial cour

t.

L i s a S k iles testified on rebuttal that the pic ture that ha d been e ntere d into evidence was actua lly taped to her

door in November 2005, befor e the witnesses t estified the episode took plac e, on New Y ear ’s of 2006. Additionally , Skiles did not know the De fenda nt was marr ied until the De fe nd ant h a d te sti fi e d. Th is w a s als o a viol a tio n of he r co nd iti on s: the De fe nd ant w a s r e qu ir e d to inform Skiles of any

marria g es.

On cr oss-examination, S kiles testified that the main problem with Corner stone treatment for the Def endant wa s its cost. Skiles did not fee l the Def endant c ould affor d the treatment, considering sh e c ou ld n ot p ay

he r f ine s o r c ourt

c os ts. Ad dit ion a lly
, ou tpatie nt fa c ili tie s are g e ne ra lly fo r p e op le wh o h a ve a lr e a dy

a tte nd e d in

patie nt f a c ili tie s, wh ic h the Defen dant ha d n ot d on e . Sk ile s f e lt Cor ne rs ton e wa s in a

pp ro pr iate fo r t

he De fe nd ant, wh ic h is why the De fe ndant was dir e c te d to Ag ape. Skil es did not put much weig ht on the fac t that the Def endant ha d a stea dy

place of employ ment beca

use she ke pt rec eiving calls plac ing the Def endant at AJ ’s and Red’ s Ba r.

On this evidence
, the trial court found the Def endant violated the terms and conditions of her community corr ections sentenc e, and it de termined the Def endant should not rec eive another chanc e
a t p r o b a ti o n

. A s s u c h
, th e tr ia l c o u rt d ir e c te d th e D e f e n d an t to s e r

v e h e r s e n te n c e , revoking her

c omm un ity c or re c tio ns se nte nc e . I t is fr om t his de c isi on

that th e De fe nd ant n owa pp e a ls.

II. Ana lys is

On a pp e a l, t he De fe nd ant c ha lle ng e s th e tr ia l c ourt ’s d eci sio n to re vo ke he r c omm un ity

corr ections sentenc e, sente ncing her to serve the re mainder of her or igina l sentence in incarc eration. We reviewrevocat i o n s o f alt ernative sentenc es with an a buse of discr etion standard. State v. Har kins, 811 S.W .2d 79, 82 (Tenn. 1991). I n order to establish an abuse of discre tion, a defe ndant must show that t h er e i s no substantial evidence to support the finding of the trial c ourt. I d. T ennessee Code Annotated section 40-36-106( e)( 4) g ives the trial court the power to r evoke a de fe nd ant’ s c omm

un ity c or re c tio ns se nte nc e . T hat se c tio n s tate s:

Th e c ourt shal l als o posse ss t

he po we r t o r e vo ke the se nte nc e imp os e d at any tim e due to the conduc t of the def endant or the termination or modification of the prog ram to which the de fenda

nt has bee n sentenc ed, and the court may rese ntence the defe ndant to any

appropr iate sente ncing alternative, including incarc eration, for a ny pe ri od of tim e up to the ma ximumse nte nc e pr ov ide d f or the of fe ns e c omm itt e d, le ss any time actually

serve d in any

community

based a lternative to inca

rce ration.
T.C.A. § 40-36-106( e)( 4) (2006)

. This de cision to r evoke may be made upon a finding by a mer e p re p o n d er an ce of

the evidenc e. T.C.A. § 40-35- 311(e) (2006); Ha rkins, 811 S.W .2d at 82. Ad dit ion a lly , “ Th e pr oo f o f a pr ob a tio n v iol a tio n n e e d n ot be e sta bli sh e d b e y on d a

re a so na ble do ub t, but it is sufficie nt if it allows the trial judg e to make a conscie ntious and intelligent judg ment.” Har kins, 811 S.W .2d at 82. The de cision to revoke pr obation is within t he sound discre tion of the-5-

tr ia l c ourt , St a te v. Ke nd

ri c k, 17 8 S.W. 3d 73 4, 73 8 (T e nn

. Cr im. Ap p. 20 05 ), bu t a tr ia l c ourt

mus t make a conscie ntious judg ment as to whethe r the De fenda nt violated the probation and as to what the appr opriate dispositi on should be
, State v. Steven Kelly Fr aze, No. M2005-01213- CCA-R3-CD, 2006 WL 618300, at *9 (Tenn. Crim. App., a t Nashville, Mar. 13, 2006)
, perm. app. de nied (Tenn. Aug . 21, 2006).

I n the prese nt c ase, the Def endant twice violated the ter ms of her pr obation, for whic h she was fina lly

order ed to serve her se ntence in a community corr ections prog ram

. The B ehavior al C o n t ra ct an d

C o n d i t i o n s o f S en t en ce s et o u tt h e r eq u i re m en t s fo r D ef en d an t , i n cl u d i n g:
(1) Curf ew at 10:00 p.m.; (2) “ Submit to and complete a ny and all tre atment dee med nec essar y by the ET HR A O ff ic e r; ” (3 ) “ Carr y ou t a ll o rd e rs g ive n b y

the ET HR

A O ff ic e r whe the r o ra l or

wr itt e n;” (4 ) A bs ta in f ro m us inga lc oh ol a

nd dr ug s; (5 ) S u b m i tt o ra n d o m al co h o l an d dru g t es t i n g, (6) Obta in consent of the E THRA Off icer befor e cha

ng ing r esidenc es; and (7) Inform ETHRA O ffice r bef ore g etting ma

rried.

Ad dit ion a lly , the fo llo wi ng sp e c ia l con dit ion wa s add e d: “T he de fe nd ant s ha ll e nte r a nd c omp le te an appr oved tre atment prog ram.”

The e vidence showed that the De fe n d ant admitted drinking on New Y ear ’s, of whic h she informed Skiles
, h er E T HRA Off icer . There was some discr epanc y , howeve r, betwe en the photogr aph, which Skiles cla imed was plac ed on her door bef ore N ew Yea

r’s, and the De fenda

nt’s testimony . That discre pancy led to the conc lusion that the Defe ndant had in fa ct consumed a lcohol on at least one more occasion. Fur ther, there was evidenc e that the De fenda nt was out past cur few
, and she failed to take a random drug test. Fur thermore , the Def

endant wa s place d at Ag ape, w hich she l eft after eleven day s. There is ample evide nce to support the de cision of the trial c ourt revoking the Def endant’ s community corr ections sentenc e and order ing the Def endant to ser

ve the r emainder of he r s e nte nc e inc arc e rate d. Ac c or din g ly
, we c on c lud e the De fe nd a nt is no t e nti tle d to re lie f on thi s issue.

III

. Conclusion

I n acc ordanc e with the for eg oing r easoningand author ities, we af firm the judg ment of t he trial court.

___________________________________ ROBERT W. WEDEMEYER, J UDGE