# FILED
July 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION
STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C

01-9708-CC-00358 Appellee, ) ) MAURY COUNTY VS. ) (Nos . 868 5, 9089, 9

583 B elow) ) DERRICK BURKEEN ) The Hon. William B. Cai n ) Appellant. ) (Probation Revocation)

FOR THE APPELLANT : FOR THE APPELLEE : WILLIAM C. BRIGHT JOHN KNOX WALKUP Assistant Public Defender Attorney General and Repor ter 22nd Judicial District 128 North 2nd Street JANIS L. TURNER P.O. Box 1208 Assistant Attorney Gener al Pulaski, TN 38478 Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General JESSE DURHAM Assistant District A

ttorney General P.O. Box 459 Lawrenceburg, TN 38464

OPINION FILED _______________________
AFFIRMED CURWOOD WITT, JUDGE-1- O P I N I O N

The appellant, Derrick Burkeen, appeals as of right from the trial court’s revocation of his probation sentence. He c ontends that the trial court erred in revoking his probation and in failing to consider sentencing alt ernatives other than inc arceration. We affirm the judgment.

On May 8, 1995, the appellant pled gui lty to the sale of cocaine and wa s sentenced as a Range I, Standard Offender, to four years in the Department of Correction, all of which was suspended except for 30 days. The appellant was placed on s upervised probation for the remainder of his s entence.
Thereafter, the appellant was indicted for the sale of cocaine, and a petiti on to revoke probation was filed. The appellant’s p robation was revoked on December 29, 1995, and he pled guilty t o the sale ofover .5 grams of cocaine on January 5, 1996. He
was sentenced to eight years in the Departmen t of Correction as a Range I, Standard Offender, and was fined $2000. Upon the trial cour t’s recommendation, the appellant was sent to Wayne County boot camp. On June 19, 1996, th e appe ll ant was released from boot camp and placed on probation. Subsequently, on Augus t 8, 1996, the appellant was indicted for the sale of over .5 grams of cocaine. He pled guilty on Nov ember 1, 1996, and was sentenced to eight years, all of which was suspended. He wa s placed on probation to run concurrently with the sentences from his two prior convictions.

On March 12, 1997, the trial court issued a probation re vocation warrant, an d
a hearing was held on July17, 1997. At the revocation hearing , the appellant’s probation officer testified that the appellant w as supposed to report to the probati on office twice a month, however, the appellant never reported more than once a month. Mo re over, the appellant tested positive for cocaine on October 25, 1996, and signed an admission that he was using

cocaine. The

last time the appellant reported was on December 10, 1996. The appellant testified that he had a problem with cocaine an d was going to have to stay away from the people he normally “h ung out with.” He pl anned t o go to the Veteran’s-2-

Administration Hospital for rehab ilitati on and to get a seasonal job r aising tobacco. The appellantadmitted that he was not ready to seek help with his drug problem until faced with the possibility of incar

ceration. Instead, he quit reporting to probation bec ause he was afraid he would fail the drug t ests. Based on the pr oof, the trial court revo ked the appellant’s probation in all three cases and or dered thatthe appellant serve the r emainder of his sentences in confinement.

The revocation of probation is committed to the sound discreti on of the trial court. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). An appellate court will not find that a tr i al court has abused its dis cretion unless the record contains no substantial evidence to support the t rial court's conclusi on that the probation should be revoked. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. Crim. App. 1981). The ev idence at the revocation hearing need only show that the tr ial court exercised a cons cientious and intelligent

judgment in making the deci sion to revok e probation. State v. Leach , 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

In revoking probation, the trial court made the following findings:

Mr. Burkeen has an eight-year sentence; really a duel eight- year sentences. He went through the boot camp. He was put back onprobation. He has had ample opportunity in these past monthsto seek treatment for his addict ion. But his answer to it is not to report to his probation officer, because he will test positiv

e. He tells us it’s the people he hangs around with . The di fficulty, Mr. Burkeen, is that yo u have to understand that y ou are not hanging around with the wrong c rowd. You are ver y much a part of the wrong crowd. If I gave Mr. Burkeen any further chance, th en everyb ody that is on probation who does nothing to comply with the rules of probation is entitled to another chance. He wants

drug treatment, now that he is facing the penitentiary, but he had ample opportunity for drug treatment, voluntar ily, all of this peri od of time. And yet

he has done nothing, except continue the same pattern that got him in trouble in the fir st place. Probation has done him no good. Boot camp did him no good. He comple tely disr egarded his obligations . The last time he reported to th e probation officer was last December. Why did he not report? Because he would flunk a drug scr

een. Nothing works with Mr. Burkeen. The Court sadly has no alternativ e,-3- so he will go to the Department of Correction , and let’s see if they can help him. He’s goin g to learn the hard way that nobody

can help him, until he is willing to help hi mself, and he’s not.

The appellant contends that the trial court erred in ordering his entire sentence be served in the Department o f Correction without considering other alternatives. This argument is misplaced. If the trial court finds by

a preponderance of the evidence that
a probationer violates a conditi on of his p robation, it is wit hin the court's discreti on to revoke probation and cause execution of the judgment as i t was originally

entered. T.C.A. §§ 40-35-310,-311(d); State v. Ha rkins , 811 S.W.2d 79, 82. If the record contains substantial evidence to support t he trial court's conclusion that the appellant violated a condition of his probation, no abus e of discretion will be found. Id

.

In this case, the record cont ains overw helming evidence to suppor t the appellant's probation rev ocation, including his own admissions. The appellant hasbeen provided sentencing alternativ es, including probation a nd the "bo ot camp" program. These alternatives to incar

ceration have not succeeded.

Accordin gly, based upon a reading of the entire record , the briefs of the parties, and the applicable law, this Court finds that the judgment of the trial court should be affirmed.

________________________________ CURWOOD WITT, JUDGE
CONCUR:

________________________________ JOE G. RILEY, JUDGE

________________________________ LEE MOORE, SPECIAL JUDGE