IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 11, 2015

STATE OF TENNESSEE v. DAVID MUANGKHOT

Appeal from the Circuit Court for Bedford County

Nos. 15656, 15657 Franklin L. Russell, Judge

No. M2014-01029-CCA-R3-CD - Filed March 19, 2015

In January 2005, David Muangkhot (“the Defendant”) pleaded guilty to one count of sale of

a Schedule I controlled substance and one count of possession of a Schedule I controlled

substance with the intent to sell. Pursuant to a plea agreement, the trial court imposed

concurrent, 10-year sentences and ordered the Defendant to serve his sentence in

confinement. Following the completion of a boot camp program, the Defendant wasreleased

and placed on supervised probation for the remainder of his sentence pursuant to Tennessee

Code Annotated section 40-20-206. In April 2014, the trial court issued a violation of

probation warrant and, following a hearing, revoked the Defendant’s probation and imposed

the Defendant’s original sentence. On appeal, the Defendant argues that the trial court

abused its discretion by ordering him to serve his sentence. Upon review, we affirm the

judgment of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and TIMOTHY L. EASTER, J., joined.

Donna L. Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant

District Public Defender, Shelbyville, Tennessee, for the appellant, David Muangkhot.

Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney

General; Robert Carter, District Attorney General; and Richard Aaron Cawley, Assistant

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

I. Facts

In November 2004, the Bedford County Grand Jury indicted the Defendant for one

count of sale of Schedule I controlled substance and one count of delivery of a Schedule I

controlled substance in case number 15656. In case number 15657, the grand jury indicted

the Defendant for one count each of possession of a Schedule I controlled substance with

intent to sell, possession of a Schedule I controlled substance with intent to deliver, and

unlawful carrying of a weapon. On January 20, 2005, the Defendant pleaded guilty, as a

Range I standard offender, to one count of sale of a Schedule I controlled substance and one

count of possession of a Schedule I controlled substance with intent to sell. The Defendant

received concurrent sentences of 10 years at 30% to serve on both counts. On August 16,

2005, the Defendant completed a boot camp program and was placed on supervised

probation for the remainder of his sentence.

On April 15, 2014, the trial court issued a violation of probation warrant based upon

allegations that the Defendant had tested positive for marijuana and cocaine. At a hearing

conducted on May 16, 2014, the Defendant admitted that he had violated the terms of his

probation. The Defendant testified that he lived with his parents in Murfreesboro. He was

engaged to be married and was working two jobs at the time of his arrest on the violation

warrant. The Defendant testified that he had no prior violations of probation. He had

reported to his probation officer as required, paid all fines, and passed all other drug screens

given to him since 2005. The Defendant further explained that, other than the underlying

convictions, he had no other criminal history.

Regarding the violation of probation, the Defendant testified that he smoked a

marijuana joint while attending a Super Bowl party on February 3, 2014. He explained that

he did not know the joint was laced with cocaine until he inhaled. As an explanation for his

use of drugs, the Defendant stated that he was under a lot of stress because he had lost his

sister that year and because his father was sick. The Defendant stated that he only smoked

one joint and he had thought that he could “beat the system.”

Following the Defendant’s testimony, defense counsel argued that there was no

excuse for the Defendant’s behavior but asked the trial court to “be gracious and consider

that . . . this was his first violation. And other than this one positive drug screen, he appears

to have done quite well on probation . . . .” At the conclusion of the hearing, the trial court

determined that the Defendant had violated the terms of his probation, and it revoked

probation and ordered the Defendant to serve his sentence. This timely appeal followed.

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II. Analysis

On appeal, the Defendant acknowledges that he violated the terms of his probation

by testing positive for controlled substances, but he argues that the trial court improperly

required him to serve the balance of his sentence. He asserts that the trial court should have

imposed a sentence of split confinement followed by inpatient drug rehabilitation. The State

responds that the trial court did not abuse its discretion by revoking the Defendant’s

probation and ordering his sentence into effect. We agree with the State.

Upon a finding by a preponderance of the evidence that a defendant has violated a

condition of his or her probation, a trial court may revoke probation and order the imposition

of the original judgment. Tenn. Code Ann. §§ 40-35-310, -311 (2014); State v. Kendrick,

178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810 S.W.2d 733, 735

(Tenn. Crim. App. 1991)). We will not disturb the trial court’s ruling on appeal absent an

abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State v.

Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse of discretion, a defendant

must show that there is “no substantial evidence” in the record to support the trial court’s

determination that a violation of probation has occurred. Id. Proof of a violation does not

need to be established beyond a reasonable doubt. State v. Milton, 673 S.W.2d 555, 557

(Tenn. Crim. App. 1984). Rather, if a trial court finds by a preponderance of the evidence

that a violation has occurred, the court may revoke the probation and suspension of the

sentence. Tenn. Code Ann. § 40-35-311(e) (2014).

Upon 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. 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.” Tenn. Code Ann. § 40-35-310. 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).

Upon review, we conclude that the trial court did not abuse its discretion by revoking

the Defendant’s probation and ordering the Defendant to serve his sentence. The Defendant

tested positive for using marijuana and cocaine and admitted that he was guilty of violating

his probation. Indeed, the Defendant does not challenge the revocation of his probation on

appeal. The Defendant’s sole issue concerns whether the trial court erred by failing to grant

him another alternative sentence after revoking his probation. He contends that the sentence

imposed by the trial court was “not deserved for the committed infraction of the rules of

probation” and was not the “least severe measure necessary” under the purposes and

principles of sentencing. See Tenn. Code Ann. § 40-35-103(2), (4) (2014).

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However, as we have stated, it was within the trial court’s authority to order the

Defendant to serve his original sentence upon revoking probation. See Tenn. Code Ann. §§

40-35-310 and -311(e); Mitchell, 810 S.W.2d at 735. Moreover, “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. 01C01-9711-CC-00504, 1999 WL 61065, at

*2 (Tenn. Crim. App. Feb. 10, 1999). Finally, when the Defendant entered his guilty plea

agreement, he accepted an effective 10-year sentence to serve. The Defendant cannot now

complain that his original, agreed-upon sentence was not in keeping with the purposes and

principles of sentencing. The Defendant is not entitled to relief.

III. Conclusion

For the aforementioned reasons, we affirm the judgment of the trial court.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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