IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 12, 2015

STATE OF TENNESSEE v. ASHLEY MARIE PRETZER

Appeal from the Circuit Court for Bedford County

No. 17489 Franklin Lee Russell, Judge

No. M2014-02127-CCA-R3-CD – Filed September 29, 2015

The trial court granted judicial diversion for the Defendant, Ashley Marie Pretzer, on 

several drug-related charges in an eighteen-count indictment. The Defendant agreed to 

be on supervised probation for a period of eight years. Two years later, the Defendant‟s 

probation officer filed an affidavit with the trial court alleging that the Defendant had 

violated the terms of her probation by failing a drug screen. The trial court issued a 

probation violation warrant, and, thereafter, the police arrested the Defendant for driving 

under the influence, failing to prove financial responsibility, and possessing drug 

paraphernalia. The Defendant‟s probation officer amended his affidavit to include these 

new charges. The trial court held a hearing on the Defendant‟s alleged probation 

violations during which she admitted to the violations. The trial court revoked the 

Defendant‟s judicial diversion and sentenced her to serve a sentence of eight years in 

confinement. On appeal, she contends that the trial court improperly required her to 

serve the balance of her sentence rather than reinstate her sentence of probation. After a 

thorough review of the record, 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 NORMA 

MCGEE OGLE and CAMILLE R. MCMULLEN, JJ. joined.

Donna Orr Hargrove, District Public Defender; Michael Jonothan Collins, Assistant 

District Public Defender, for the appellant, Ashley Marie Pretzer.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;

Robert Carter, District Attorney General; and Michael David Randles and Richard A. 

Cawley, Assistant District Attorneys General, for the appellee, State of Tennessee.
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OPINION

I. Facts

This case arises from the Defendant‟s admitted probation violation of her 

judicially diverted convictions. On November 16, 2012, the trial court judicially diverted 

the Defendant‟s guilty pleas to two counts of possession of a schedule II drug for resale, a 

Class C felony, one count of possession of a schedule III drug, and two counts of forgery 

in the amount of $500 or less, a Class E felony. The parties agreed to an effective 

sentence of eight years, to be served at thirty percent. The trial court judicially diverted 

her convictions conditioned upon her successful completion of eight years of supervised 

probation. In accordance with the plea, the trial court entered orders dismissing eleven 

additional counts. 

The transcript of the guilty plea submission hearing is not included in the record. 

In the record, however, is a handwritten statement that the Defendant gave to police in 

which she admitted that she had been involved in picking up prescription pills for four 

months. She said that a man, K.H., had approached her and offered her the opportunity 

to make some extra money. He said that he would pay her $100 if she agreed to drop off 

and pick up a prescription. She said that she had also picked up a “couple of Lortab 

prescriptions at CVS.” The Defendant said that she never sold any of the pills. Also 

included in the record are copies of prescriptions written to the Defendant for Oxycodone
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and copies of receipts from CVS listing the Defendant as the patient and the prescribed 

drug as Hydrocodone. Also included in the record are transcripts from text messages 

presumably from the Defendant to another woman during which the other woman asks 

the Defendant for two “dubs” and, on another occasion, “Quake.” Other text 

conversations exchanged from the Defendant‟s phone refer to “21 on oxy” and appear to 

be conversations about where and when to purchase prescription drugs.

On August 7, 2014, the trial court issued a warrant for the Defendant‟s arrest 

based upon an alleged probation violation. The Defendant‟s probation officer‟s affidavit, 

which was attached to the warrant, alleged that the Defendant had tested positive on July 

8, 2014, for THC (marijuana) in a random drug screen. The trial court issued another 

warrant on October 9, 2014, based upon an amended affidavit, which alleged that the 

Defendant had been arrested on October 6, 2014, for DUI, failure to prove financial 

responsibility, and possession of drug paraphernalia. 

The trial court held a hearing on October 24, 2014, during which the parties 

presented the following evidence: The Defendant agreed that she had violated one or 

more of the terms of her judicial diversion. She said that she only wanted to be heard 

about the disposition of her punishment. During further questioning, the Defendant 

agreed that she had violated her probation by testing positive for marijuana and by being 

charged with new offenses, which were still pending. She stated that she had made a 
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“stupid mistake” when she had used marijuana, in part because she was “hanging around 

the wrong person and was convinced into joining them in smoking marijuana.” The 

Defendant stated that she was employed and worked six days per week as a nail 

technician. 

During cross-examination, the Defendant stated that the drug paraphernalia that 

she allegedly possessed was a “grinder,” which was often used for marijuana or tobacco. 

She further stated that her DUI was based upon a blood test, but she said that she did not 

know the results. The Defendant agreed that her positive marijuana test was from July 8, 

2014, and that the only other times she had been drug tested were in February 2013 and 

November 2012. She stated that the only time that she had used drugs within that time 

period was the time that she tested positive in July 2014. 

Based upon this evidence, the trial court found:

Well, I think because of her demeanor and her obvious intelligence, it 

makes it hard to do what I have to do in this case. Why you go two years 

behaving yourself – assuming we know that. Of course, here‟s the 

problem, when someone‟s convicted on drug charges, they don‟t need to be 

tested just every other Christmas. They need to be tested regularly and 

randomly so we know early on when they‟ve slid off the, off the path, but 

anyway, I‟ve made that speech plenty of times, so I won‟t do it again.

But driving under these circumstances, and with the grinder back 

there, and positive for marijuana, I just don‟t feel that I have any choice but 

to set aside her diversion and sentence her to the sentence that she took 

previously . . . .
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The trial court entered a written order confirming its judgment. It then entered 

judgments of conviction for the Defendant for each of the diverted offenses. It is from 

these judgments that the Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that the trial court erred when it ordered her to 

serve the balance of her sentence in confinement. The State counters that the Defendant 

has failed to show that the trial court erred. We agree with the State.

“Judicial diversion is legislative largess whereby a defendant adjudicated guilty 

may, upon successful completion of a diversion program, receive an expungement from 

all „official records‟ any recordation relating to „arrest, indictment or information, trial, 

finding of guilty, and dismissal and discharge‟ pursuant to the diversion statute.” State v. 

Schindler, 986 S.W.2d 209, 211 (Tenn. 1999) (quoting T.C.A. § 40-35-313(b)). The 

State may seek to revoke a defendant‟s judicial diversion if the defendant violates the 

terms of his or her probation. See Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App.

2002). “[T]he trial court should follow the same procedures as those used for ordinary 

probation revocations” when addressing allegations that a defendant violated the terms of 

judicial diversion. Id. “If the trial court determines by a preponderance of the evidence 
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that the defendant has violated probation,” the trial court may terminate judicial diversion 

and proceed to sentence the defendant. See State v. Johnson, 15 S.W.3d 515, 519 (Tenn.

Crim. App. 1999).

A trial court‟s authority to revoke a suspended sentence is derived from Tennessee 

Code Annotated section 40-35-310 (2014), which provides that the trial court possesses 

the power “at any time within the maximum time which was directed and ordered by the 

court for such suspension, . . . to revoke . . . such suspension” and cause the original 

judgment to be put into effect. A trial court may revoke probation upon its finding by a 

preponderance of the evidence that a violation of the conditions of probation has 

occurred. T.C.A. § 40-35-311(e) (2014). “In probation revocation hearings, the 

credibility of witnesses is to be determined by the trial judge.” State v. Mitchell, 810 

S.W.2d 733, 735 (Tenn. Crim. App. 1991). If a trial court revokes a defendant‟s 

probation, options include ordering confinement, ordering the sentence into execution as 

originally entered, returning the defendant to probation on modified conditions as 

appropriate, or extending the defendant‟s period of probation by up to two years. T.C.A. 

§ 40-35-308(a), (c), -310 (2014); see State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999).

The judgment of the trial court in a revocation proceeding will not be disturbed on 

appeal unless there has been an abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 

554 (Tenn. 2001); State v. Smith, 909 S.W.2d 471, 473 (Tenn. Crim. App. 1995). In 
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order for this Court to find an abuse of discretion, “there must be no substantial evidence 

to support the conclusion of the trial court that a violation of the conditions of probation 

has occurred.” Shaffer, 45 S.W.3d at 554. Further, a finding of abuse of discretion 

“„reflects that the trial court‟s logic and reasoning was improper when viewed in light of 

the factual circumstances and relevant legal principles involved in a particular case.‟” Id.

at 555 (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

In the case before us, the Defendant admitted she had violated her probation and 

waived her right to challenge the allegations at a hearing. The Defendant‟s admission, as 

well as the record, provided substantial evidence to support the trial court‟s revocation of 

probation. After the trial court accepted the Defendant‟s admission, it retained 

discretionary authority, pursuant to Tennessee Code Annotated section 40-35-310(b), to

order the Defendant to serve her sentence in incarceration.

The determination of the proper consequence of a probation violation embodies a 

separate exercise of discretion. Hunter, 1 S.W.3d at 647. Case law establishes that an 

accused, already on probation, is not entitled to a second grant of probation or another 

form of alternative sentencing. State v. Jeffrey A. Warfield, No. 01C019711-CC-00504, 

1999 WL 61065, at *2 (Tenn. Crim. App., at Nashville, Feb. 10, 1999), perm. app. 

denied (Tenn. June 28, 1999).
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The record clearly reflects that the Defendant violated the terms of her probation 

by testing positive for marijuana. She also received additional charges for DUI, based 

upon a blood test, and for having drug paraphernalia, a “grinder,” in her vehicle. 

Accordingly, the trial court was justified in revoking the Defendant‟s judicial diversion.

Further, it was within the trial court‟s authority to order the Defendant to serve her

original sentence upon revoking the Defendant‟s judicial diversion. We conclude that the 

trial court did not err when it ordered the Defendant to serve her eight year sentence in 

incarceration. The Defendant is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the 

trial court‟s judgments.

_________________________________

ROBERT W. WEDEMEYER, JUDGE