IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs on April 26, 2011

STATE OF TENNESSEE v. JEREMY LIEUTENANT FUQUA

Direct Appeal from the Criminal Court for Hamilton County

No. 261746 & 261820 Rebecca J. Stern, Judge

No. E2010-02148-CCA-R3-CD - Filed November 22, 2011

In May, 2007, Defendant, Jeremy Lieutenant Fuqua, pled guilty to various offenses,

including three counts of aggravated burglary, a Class C felony, and one count of Class C

felony theft. He received a sentence of four years for each conviction of aggravated burglary

and a sentence of three years for the theft conviction, with all sentences to be served

consecutively with each other for an effective sentence of fifteen years. Defendant was given

the opportunity to serve the entire sentence on probation. Subsequently, there were three

separate probation violation proceedings, but ultimately none resulted in revocation of the

entire probation sentence. The fourth probation violation proceeding, which is the subject

of this appeal, was filed based upon new criminal charges, failure to report arrests, and

various technical violations. After a hearing the trial court revoked Defendant’s probation

and ordered the entire effective sentence of fifteen years to be served by incarceration. On

appeal, Defendant does not challenge the findings that he violated his probation; he does

insist that he should not have been ordered to serve his entire sentence. We affirm the

judgments of the trial court in each conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS, J., joined. DAVID H. WELLES, SP.J., not participating.

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee, Assistant Public

Defender; and Blake Murchison, Assistant Public Defender,Chattanooga, Tennessee, for the

appellant, Jeremy Lieutenant Fuqua.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; William H. Cox, III, District Attorney General; and Brian Finlay, Assistant District

Attorney General, for the appellee, the State of Tennessee.
OPINION

Background

Defendant’s conduct on various occasions pertinent to this case (his fourth probation

violation proceeding) caused five separate probation violation reports to be issued. Our

review of the record shows that the most egregious of the violations occurred while

Defendant wasin custody pending the hearing of this probation violation warrant. According

to the violation report,

On or about 2/24/10, [Defendant] was arrested for [a]ggravated [a]ssault.

According to the affidavit of complaint compiled by CCA Investigator

Michele Johnson, on 2/24/10 inmate [Defendant] assaulted Correctional

Officer Robert Woods. Officer Woods was performing his duties at the

Silverdale Correctional Facility. Officer Woods was beaten unconscious

and required immediate outside medical treatment via ambulance.

Defendant’s probation officer, Jennifer Laferry, was the only witness who testified

at the probation violation hearing. Including some convictions which occurred early in his

probation and did not result in revocation, Defendant had been convicted of the following

offenses while on probation: public intoxication, criminal trespassing, selling alcohol to a

minor, vandalism, theft, assault, and aggravated assault. The assault conviction resulted from

the incident with the correctional officer, and the aggravated assault conviction, which was

from a guilty plea the week prior to his revocation hearing, was after Defendant “beat

somebody in the head with some kind of blunt object” in Bledsoe County. Defendant was

in Bledsoe County without the permission of his probation officer.

Analysis

If a trial court finds that a defendant “has violated the conditions of probation and

suspension by a preponderance of the evidence, the trial judge shall have the right . . . to

revoke the probation and suspension of the sentence and [c]ause the defendant to commence

the execution of the judgment as originally entered, or otherwise, in accordance with § 40-

35-310.” Tenn. Code Ann. § 40-35-311(e). The revocation of probation lies within the

sound discretion of the trial court. Tenn. Code Ann. § 40-35-310; State v. Harkins, 811

S.W.2d 79, 82 (Tenn. 1991); State v. Subblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App.

1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). The trial judge

must, however, adduce sufficient evidence during the probation revocation hearing to allow

him to her to make an intelligent decision. See Mitchell, 810 S.W.2d at 735.

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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 the suspension.” Tenn. Code

Ann. § 40-35-310. Thus, the trial court retains the discretionary authority to order the

defendant to serve the original sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn.

Crim. App. 1995). As this Court has repeatedly noted, a trial court has but two options when

a probation violation has been found by a preponderance of the evidence: (1) cause execution

of the original judgment as it was originally entered, or (2) modify the defendant’s conditions

of supervision, including extending the defendant’s probationary period for up to two years.

See Tenn. Code Ann. §§ 40-35-308, 310, 311; State v. Bowling, 958 S.W.2d 362, 363 (Tenn.

Crim. App. 1997).

When a probation revocation is challenged, the appellate courts have a limited scope

of review. For an appellate court to be warranted in finding that a trial judge abused his or

her discretion by revoking probation, it must be established that the record contains no

substantial evidence to support the trial judge’s conclusion that a probation violation

occurred and that because of the violation, probation should be revoked. See Harkins, 811

S.W.2d at 82; Stubble field, 953 S.W.2d at 226. The proof of a probation violation need not

be established beyond a reasonable doubt, but it is sufficient if it allows the trial court to

make a conscientious and intelligent judgment. Harkins, 811 S.W.2d at 82 (citing State v.

Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)).

Defendant’s argument on appeal is limited. He asserts that this Court should reverse

the trial court and order “some other remedy other [than] full service of the sentence in the

[Tennessee Department of Correction].” The State disagrees. We agree with the State.

The following transpired at the conclusion of the revocation hearing:

THE COURT: Is the defendant offering any proof?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: Anybody want to be heard further? I mean, I

know you’re asking to just have him back on

probation, but.

[DEFENSE COUNSEL]: Well, Your Honor, this is a very lengthy term

that [Defendant] is facing. It’s a 15-year –

THE COURT: And he has a very lengthy record, too.

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[DEFENSE COUNSEL]: And I understand that, Your Honor, and

[Defendant] understands that as well. That

aggravated assault that was mentioned was

actually just pled last week. It was a three-year

sentence which was going to run consecutive

to whatever happens here today. [Defendant]

has certainly had some opportunity before you,

but given the length of time that he will be

serving, he would request the Court to some

lenience as far as what would be required of

him to serve. He does expect that he will have

to serve something, but.

THE COURT: Well, I think that’s why he kept getting the

breaks that he didn’t take advantage of because

no one wanted to make him go serve that much

time. I’m sure that’s why, but time’s up.

Sorry. He’s blown it this time. He’s been

given so many opportunities it’s unbelievable.

Eight new convictions. Some of them for

assaults. Going out of town to Bledsoe County

without permission, not paying his restitution,

not being full time employed. Petition to

revoke is sustained. His sentence is ordered

into execution. He will be given credit for

time served.

Our review of the record leads us to conclude that the trial court’s ruling is soundly

based. Defendant is not entitled to relief in this appeal.

CONCLUSION

The trial court’s judgments revoking probation are affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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