IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 18, 2010

STATE OF TENNESSEE v. ARCHIE HILL, JR.

Direct Appeal from the Circuit Court for Franklin County

Nos. 18025 & 18364 Buddy D. Perry, Judge

No. M2010-00093-CCA-R3-CD - Filed November 2, 2010

The Defendant, Archie Hill, Jr., pled guilty to one count of aggravated burglary and one

count of burglary. The trial court sentenced him to seven years, with the Defendant to

serve eleven months and twenty-nine days in confinement and then be released to

probation. Soon after the Defendant began serving his probation sentence, a violation of

probation affidavit was filed against the Defendant. After a hearing, the trial court

revoked the Defendant’s probation sentence and ordered him to serve the remainder of his

sentence in confinement. The Defendant appeals, contending the trial court erred in

placing into effect his original sentence. After a thorough review of the record and

applicable law, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H.

WELLES and NORMA MCGEE OGLE, JJ., joined.

Robert G. Morgan (at trial and on appeal) and Philip A. Condra (on appeal), Jasper,

Tennessee, for the Appellant, Archie Hill, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor

General; Clarence E. Lutz, Assistant Attorney General; J. Michael Taylor, District

Attorney General; Steve Blount, Assistant District Attorney General, for the Appellee,

State of Tennessee.

OPINION

I. Facts
In April 2009, the Defendant pled guilty to the burglary of a Franklin County

church and the aggravated burglary of a private residence. The trial court sentenced him

to seven years, with eleven months and twenty-nine days to be served in confinement and

the balance on probation. The trial court placed the Defendant on furlough from jail and

ordered him, as a “strict requirement of his sentence and probation,” to complete the

residential program with the Transformation Project. The trial court also ordered the

Defendant to “stay away from the [church’s] property at all times.”

In September 2009, the trial court issued a warrant for the Defendant’s arrest based

upon a violation of probation affidavit, which alleged the Defendant violated his

probation by abandoning the Transformation Project rehabilitation program. The

Transformation Project president, Wayne Keylon, submitted a “NOTICE OF FAILURE

TO COMPLY” with the trial court, describing the Defendant’s participation in the

Transformation Project:

At first [the Defendant] seemed to be completely embracing the

opportunity to be in our program rather than serving his sentence in prison.

However, within 4 days he was combative with House of Refuge staff

members. [The Defendant] has failed to comply numerous [times] but has

seemed to be able to regain his focus to continue with out program

partnership. However, on September 11, 2009, [the Defendant], upon being

notified that he would be going back to jail, left the program property,

effectively going AWOL.

The trial court held a revocation hearing. At the commencement of the hearing,

the parties announced a stipulation about the testimony of two witnesses, Joel Davenport

and Sheriff Fuller. They stipulated that, were Davenport, the director of the

Transformation Project, to have testified, he would have confirmed that, within the first

week of the Defendant’s enrollment in the Transformation Project, the Defendant had

considerable difficulty complying with certain terms of the program. Program directors

considered sending the Defendant back to jail. They allowed the Defendant, however, to

remain in the program, but more problems soon arose. Drug use occurred among

members of the program, including the Defendant. The Defendant soon thereafter left the

Transformation Project without completing the program. According to Davenport,

though the Defendant did not complete the program, his behavior had improved.

Davenport cited the Defendant’s immediate notification of the Franklin County Sheriff’s

Department that he left the Transformation Project and returned to Franklin County as

evidence the Defendant was increasingly rule-abiding. The parties stipulated that Sheriff

Fuller would have confirmed that the Defendant telephoned him, saying he would turn

himself in if the Sheriff’s Department received a warrant for his arrest.

2
Wayne Keylon, president of the Transformation Project, testified that, during the

Petitioner’s enrollment in the Transformation Project, the Petitioner lived in a residential

facility, House of Refuge, which provides transitional housing to some of the

Transformation Project participants. Keylon received a phone call from the director of

the Transformation Project, who reported that the Petitioner was not complying with the

rules of the transitional home. The rule the Petitioner had the most difficulty with was a

prohibition against indoor smoking. The director said the Petitioner in general was a

“non-conformist” because he resisted most of the house rules. The director informed

Keylon the House of Refuge had decided to dismiss the Petitioner from the house.

Keylon explained that, when a court-ordered participant in his residential program

is dismissed from either the transitional home or the rehabilitation program, he is obliged

to deliver the participant to the Sheriff’s Department of the county that sentenced the

participant. Accordingly, when the Petitioner was dismissed from the House of Refuge,

Keylon phoned the Petitioner on a Friday and instructed him to wait at the transitional

house until the following Monday, when he would pick the Petitioner up and transport

him back to the Franklin County Sheriff’s Department. When Keylon arrived on

Monday, however, he was informed the Petitioner had returned on his own to Franklin

County over the weekend.

On cross-examination, Keylon confirmed that the Defendant’s compliance issues

stemmed from his enrollment in the House of Refuge and not from his participation in the

Transformation Project. He said he did not know whether illegal drugs were being used

at the House of Refuge, as the Defendant had reported. On redirect examination, he

confirmed that, as a condition of his probation, the Defendant was required to stay in a

transitional house while completing the Transformation Project.

The Defendant testified that he was one of ten children raised in Norfolk, Virginia,

by parents with drug abuse issues. He began using drugs at age twelve and committed

various misdemeanors and felonies, which resulted in his being jailed and imprisoned.

As an adult living with his girlfriend in Tullahoma, Tennessee, he won a lottery prize of

$50,000. At some point before this, the Defendant had ceased abusing drugs, and this

money soon led him back to drug abuse. Thereafter, he was arrested, and his girlfriend

obtained an order of protection against him. Unable to return to the home he had shared

with his girlfriend, once he was released from jail he was homeless and began abusing

crack cocaine. To feed his drug habit, he burglarized a church and a private residence.

Authorities apprehended and charged the Defendant for these burglaries, and the

conviction and probation sentence the Defendant received for this conduct underlie the

present appeal.

3
While enrolled in the Transformation Project, the Defendant worked two jobs and

joined a steel workers’ union. The Defendant soon began to take issue with several

things that were happening at the House of Refuge, the transitional house in which he was

living. He communicated his concerns to Keylon over the telephone. The Defendant

testified that he never abused drugs while living at the House of Refuge and only once

drank a beer during a Fourth of July celebration. Having had enough of the House of

Refuge, he telephoned Keylon and told him he planned to leave Chattanooga and return to

Tullahoma. According to the Defendant, Keylon discouraged him from doing so but said

he could leave as long as he stayed in contact. The Defendant denied that Keylon told

him to wait in Chattanooga in order for Keylon to pick him up on Monday.

Having caught wind of the Defendant’s plans to leave, several of the program

directors of the Project and the transitional home met with the Defendant and told him

they disapproved of his leaving. The Defendant left anyway, collecting money from

friends to pay for his transportation to Tullahoma. Before he left, he called the Franklin

County Sheriff's Department, advising them he planned to return from the rehabilitation

house. When he arrived in Tullahoma, he checked into a hotel and notified the Sheriff's

Department that he could be found at the hotel in the event they obtained a warrant for his

arrest. That Sunday, he attended the church he burglarized, and he apologized for having

burglarized the church The next day, officers arrested the Defendant at the hotel for

violation of his probation.

On cross-examination, the Defendant confirmed he understood when he pled guilty

and received a probation sentence that he would live in a halfway house, where he would

live with several other people with substance abuse issues. He confirmed he had never

successfully completed a term of probation, but he said he did not feel he had “failed” at

completing the probation sentence at issue. He explained that, because he would

eventually have resumed using drugs had he stayed at the House of Refuge, he was

justified in leaving and returning to Tullahoma. He explained that he did not ask his

attorney to petition the court to allow him to complete rehabilitation elsewhere because he

did not understand this was an option. He also said he did not know how to contact his

attorney.

Based upon this evidence, the trial court found that the Defendant violated his

probation and placed his original sentence into effect. It is from this judgment that the

Defendant now appeals.

II. Analysis

4
On appeal, the Defendant contends the trial court erred when it revoked his

probation because it failed to support its revocation with a finding that the Defendant

absconded from his mandatory treatment program, and the Defendant argues the record

does not support such a finding. He argues that, though he left the treatment program, he

did so under circumstances that did not amount to “absconding.” Finally, the Defendant,

relying upon State v. Laura June Mays, argues that the trial court should have supported

its revocation with findings concerning the Defendant’s reason for leaving the treatment

program. No. W2007-00319-CCA-R3-CD, 2008 WL 1700227 (Tenn. Crim. App., at

Jackson, Apr. 8, 2008), affirmed upon remand State v. Mays, No. W2008-02144-CCAR3-CD, 2010 WL 271269 (Tenn. Crim. App., at Jackson, Jan. 25, 2010).

The State responds that, due to the Defendant’s admission that he left without

completing the treatment program, the trial court was within its discretion to revoke the

Defendant’s probation and order him to serve the remainder of his sentence in

confinement.

When a trial court determines by a preponderance of the evidence that a

probationer has violated the conditions of his or her probation, the trial court has the

authority to revoke probation. T.C.A. § 40-35-311(e) (2006). Upon finding that the

defendant has violated the conditions of probation, the trial court may revoke probation

and either: (1) order incarceration; (2) order the original probationary period to

commence anew; or (3) extend the remaining probationary period for up to two additional

years. State v. Hunter, 1 S.W.3d 643, 644 (Tenn. 1999); see T.C.A. § 40-35-308, -310, -

311 (2006). The defendant has the right to appeal the revocation of his probation and

entry of his original sentence. T.C.A. § 40-35-311(e). After finding a violation, the trial

court is vested with the statutory authority to “revoke the probation and suspension of

sentence and cause the defendant to commence the execution of the judgment as

originally entered . . . .” Id.; accord Hunter, 1 S.W.3d at 646 (holding that the trial court

retains the discretionary authority to order the defendant to serve his or her original

sentence in confinement). Furthermore, when probation is revoked, “the original

judgment so rendered by the trial judge shall be in full force and effect from the date of

the revocation of such suspension . . . .” T.C.A. § 40-35-310 (2006).

The decision to revoke probation is in the sound discretion of the trial judge. State

v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); State v. Mitchell, 810

S.W.2d 733, 735 (Tenn. Crim. App. 1991). This Court will uphold a trial court’s

judgment to revoke probation unless the trial court abused its discretion. State v. Harkins,

811 S.W.2d 79, 82 (Tenn. 1991). To find an abuse of discretion in a probation revocation

case, the record must be void of any substantial evidence that would support the trial

court’s decision that a violation of the conditions of probation occurred. Id.; State v.

5
Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn.

Crim. App. 1980).

In this case, at the conclusion of the revocation hearing, the trial court read the

Defendant’s criminal history from the probation report. The Defendant was convicted of

several burglaries in 1989 and 1991. He was granted parole in October 1994, but this

parole was revoked in April 1995. He was again granted parole in April 1996, but he

absconded from supervision in January 2000, so his parole was again revoked, and he

served the remainder of his sentence in confinement. The trial court acknowledged that

the Defendant sent several letters to the trial court requesting not to be returned to jail.

The trial court noted that the letters demonstrated the Defendant had considerable talent,

which the trial court hoped the Defendant would cultivate when it previously ordered the

Defendant to complete rehabilitation. It explained that, because the Defendant again

violated probation, it had “no choice” but to revoke his probation and order him to serve

the remainder of his sentence in confinement.

We first note that, contrary to the Defendant’s assertion, the trial court had no

obligation to justify its revocation of the Defendant’s probation by finding that the

Defendant “wilfully” abandoned the rehabilitation program. The rule of law requiring a

finding of wilfulness to accompany each probation revocation based upon a defendant’s

failure to pay court fines or costs has no application here. The completion of a residential

rehabilitation program was a “strict requirement” of the Defendant’s probation, and any

failure to meet that requirement placed the Defendant in violation of his probation.

The evidence in this case shows that, as a condition of his probation, the

Defendant was ordered to complete the residential treatment program with the

Transformation Project in Chattanooga. He also was ordered to stay away from the

Franklin County church he burglarized. Almost from the outset, however, the Defendant

resisted the rules of the transitional home in which he lived as a condition of his

participation in the Transformation Project. The Defendant soon became “combative”

with house management, who concluded the Defendant should be dismissed from the

house. The Defendant’s dismissal from the residential home placed him in violation of

the terms of his probation sentence. Thus, Keylon was obliged to return the Defendant to

the Franklin County Jail. After Keylon informed the Defendant that in three days he

would pick the Defendant up from Chattanooga and transport him to Franklin County, the

Defendant preempted Keylon and returned to Franklin County on his own. The

Defendant notified the Franklin County Sheriff’s Department of his return. On Sunday,

the Defendant visited a service of the church he had burglarized, and he apologized for

his conduct.

6
We conclude the record contains substantial evidence that the Defendant violated

the terms of his probation, not only by failing to complete the residential rehabilitation

program at the Transformation Project. Thus, the evidence does not preponderate against

the trial court’s finding that the Defendant violated his probation. See T.C.A. § 40-35-

311(e). We conclude that, because the evidence that the Defendant violated his probation

was abundant, the trial court did not abuse its discretion when it revoked the Defendant’s

probation. See Harkins, 811 S.W.2d at 82. The Defendant is not entitled to relief.

III. Conclusion

Based on the foregoing reasoning and authorities, we affirm the judgment of the

trial court.

________________________________

ROBERT W. WEDEMEYER, JUDGE

7