### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Jul y 26, 200 5

STA TE OF TEN NES SEE v. PR ESTON MOR RIS K ISER

Appeal f romthe Cr im inal Cou rt for Sulli van Coun ty Nos. S47,486; S47,497; S47,541; S47,726 R. Jerry Be ck, Judge

No. E2004-02722-CC A-R3- CD - F iled Augu st 10, 2005

The De fenda nt, Preston Kiser, pled g uiltyto multiple counts of passing worthless chec ks, theft under $5 00 , th eft ov er $500 , f

or g e ry , r e c kle ss d ri vin g , a nddr ivi ng on a su sp e nd e d li c e ns e . F or

the se offe nses, the De fenda nt rec eived a n eff ective se ntence of t hree y ear s as a Rang e I , standard of fende r. The De fenda nt was o r d e r e d to serve his sente nce on c ommunitycorr ections. F ollowing a subsequent

revoc ation hearing, the Def endant’ s community corr ections sentenc e wa s revoke d and the tria l court order ed him to serve his sente nce in c onfinement. The Def endant now a

ppeals t h e t ri al court’s

revoc ation order . We affirm the judgme nts of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J., a ndJ.C. M C L IN , J ., joined.

Te rry Jord a n, As sis ta nt P ub lic De fe nd e r, B ou ntv ill e , T e nn e sse e , f or the app e lla nt, Pr e sto n M or ri s Kiser.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Da vidE. Coe ne n, As sis ta nt A tto rn e y Ge ne ra l; H. Gre eley

Wells, J r., District Attorney Gene ral; and J ames F. Goodwin, Assistant D istrict Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Following his guilty

pleas, the De fe n d ant was or dere d to serve his e ffe ctive thre e-y ear sent en ce in the residential c ommunitycorr ections prog ram known a s “Ha y House.” Mr. Stewart Canter testified at the revoc ation hearing that he was the Def endant’ s supervisor at Hay House. As the Def endant’ s supervisor, Mr. Cante r re viewed the written conditions of the De fenda nt’s sentenc e with him, a copy

of which the Def

endant signed and a copy of which was admitt ed int o evidenc e at the re vocation hea

ring

. One of the conditi ons of t he Defenda nt’s sentenc e wa s that he would “r eside at the John R . Hay

House Residential/Corre ctional T re at m en t Fa cility as spec ifically

direc ted by-2-

e ith e r the Cou rt , Pr ob a tio n O ff ic e r o r C ou ns e lor .” An oth e r c on dition wa s th a t th e De fe nd a nt w ou ld “follow a ll rules of the J ohn R. Hay House Residential/C orre ctional Treatment Facility and /or the Day Reporting Center.”

Mr. Canter te stified that the Def endant unde rstood that he was to r eside at the Hay House a nd didso a t th e c omm e nc e me nt o f h is s e nte nc e on Ma rc h 12, 20 04 . Mr. Ca nte r t e sti fi e d th a t, o n A pr il 6, 2004, the Def

endant wa s place d on the “Phase 2 nonresidential pha se” of the fa cil i t y

. During “Phase 2,” the Def

endant wa s no longe r re quired to re side at th e fa cility but was to report once a

wee k. The De fenda nt reporte d as re q u i re d during his first week of Phase 2, missed reporting the
next t wo wee ks, and then re ported a g ain the following week

. At t h at time, May 14, 2004, the Def endant wa s “orde red to re port bac k into residence .” The Def endant did so

. Mr. Canter sta ted that the file re flec ted no phone c alls from the Defe ndant during the two-we ek period that he did not report.

After

resuming residenc e at the Hay House, the Def endant signe d out to g o to work on May 25 , 2 00 4, bu t “ fa ile d to re turn ba c k to re sid e nc e .” Mr

. Ca nte r the n pu rs ue d a vio la tio n c ha rg e a g a ins t the De fe nd a nt. Mr. Canter stated that the Def endant called the fac ility twice on May 26th and was a dvised both times that he neede d to return immediately

. The Defenda nt did not do so. The De fenda nt had not been told that he c ould leave the fac ility

.

The De fenda nt testified. He state d that, during the two-we ek period that he failed to re port while on Phase 2, he called the fac ilityeac h wee k and reported his wher eabouts. The second w eek that he mis se d a

pe rs on a l r e po rt , h e wa s a t a ho sp ita l w ith his “ so on to b e ste p- so n, ” a ndwa s to ld over the phone that it was “ fine.” After he wa s order ed bac k into residence , he stay ed a w eek a nd then “wa s under the a ssumption t hat [he] was relea sed bac k on Phase 2, re porting back w eekly .”

The De fend an t maintained that, whe n he lef t the fac ilityon May

25th, he was unde r the assumption that he had bee n place d back on Phase 2 of the prog ram. The Def endant stated that he formed this assumption after a conve rsation he ha d with Mr. Canter. How ever, t he De fenda nt ackn o w le d g e d th a t, a f

te r h e le f t o n M a y 2 5 th
, h e d idn o t r e p o r t b a c k o n a w e e k ly b a s is a s w as

re qu ir e d u nd e r P ha se 2. I nd e e d, he did no t re vis it the fa c ili ty a ft e r h e le ft on Ma y 25 th u nti l hi s a

rr e st on Aug ust 19th for violating the terms of his re lease

.

The Def endant state d that he wa s self-e mploy ed in the construc tion business and that he had made f ull restitution on t he cha

rg es aga inst him. He a sked the trial c ourt to return him to some form of pr ob a tio n b e c a us e he ha d a fi a nc é a ndc hil dr e n to su pp ort.

Af te r h e ari ng thi s p roo f, th e tr ia l c ou rt fo un d th a t th e Sta te pr ov e d “ be y on d a re a so na ble doubt” that the De fenda nt had violated the terms of his sentence by failing to r eport a s require d. The court found the Def

endant’ s testimo n y n o t credible and orde red his probation revoked a nd the Def endant to ser ve his sentenc e in the De partment of Corr ection.-3-

Th e De fe nd a nt n ow app e a ls, arg uin g that th e tr ia l c ou rt abu se d it s d isc re tio n in re vo kin g his Com mun ity Cor

re c tio ns se nte nc e a nd or de ri ng him to se rv e the re ma ind e r of his sen ten ce in confine ment.

A trial court ha s the discre tion to revoke a community

corr ections sentenc e upon a f inding that the def

endant ha s violated the conditions of the a g ree ment. See Te nn. Code Ann. § 40-36-106( e)( 4); State v. Har kins, 811 S.W .2d 79, 82 (Tenn.1991)

. The court may then re sentenc e the def endant to any

appropriate sente ncing al t er n at ive, including incar cer ation, for a ny period of time up to the max imum provided for the of fense committed, less any time actually serve d in any communi t y -b ased alternative to inca rce ration. See Te nn. Code Ann. § 40-36- 106(e) (4); State v. Samuels, 44 S.W .3d 489, 493 (Tenn. 2001)

.

Th e pr oo f o f a

c omm un ity

c or re c tio ns vio la tio n n e e d n ot b e e sta bli sh e d b e y on d a

re a so na ble do ub t; i t is su ff

ic ie nt i f i t a llo ws the tr ia l c ou rt to m a ke a

c on sc ie nti ous and in tel lig e nt j ud g me nt. See Ha rkins, 811 S.W .2d at 82-83. When revoking a community corr ections sentenc e, the tria l court must plac e its finding s of fac t a nd the rea sons f or the revoc ation on the rec ord. See Gagn o n v. Scarpe lli, 411 U.S. 778, 786 (1973). Th e Te nn e sse e Sup re me Cou rt ha s hel d th at a n a

bu se of dis c re tio n s ta nd ardof

app e llate

re vie w s ho uldbe us e d to a dd re ss the re vo c a tio n o f a Com mun ity Cor

re c tio ns se nte nc e . See Ha rkins
, 811 S.W .2d at 82-83. B efor e a r eviewing court is warrante d in finding a n abuse of discretion in a Communi ty

Correc tions revocation, it m ust be established that the r ecor d contains no substantial evidenc e to support the conc lusion of the trial co u rt t h at the def endant violated the terms of the Communi ty

Correc tions progr am. See id.

We h a ve no dif

fi c ult y in c on c lud ing that the tr ia l c ou rt c omm itt e d no abu se of dis c re tio n in finding that the Def

endant violated the terms of his Communit y C o rr ec t ions sentence . The Def endant wa s awa

re of the Hay House requ i re m ents, both during the re sidential phase a nd the subsequent re port i n g p h as e, and he fa iled to abide by the terms of e ither phase . The De fenda nt

a c kn ow le dg e d th a t he “ sh ou ld h a ve ” re po rt e d a s r e qu ir e d, bu t the e vid e nc e is u nd isp ute d th a t he did not. The De fenda nt’s explanation was that he “assumed” certain conditions to be in place; howe ver, the Def endant f ailed to c omply

even w ith those assumed conditions. The De fenda nt expressed no

remorse at the revoc ation hearing for his r epeated violations, but contende d that he should a g ain be pla c e d o n s ome fo rm

of re le a se be c a us e he ha d ma de re sti tut ion a ndbe c a us e he ne e de d to wo rk to support himself and his fianc é and he r childre n. T h e trial court found the De fenda nt a less than

cre dible witness. The re cord supports the trial court’s de cis i o n t o re v oke the De fenda nt’s Communi ty

Correc tions sentence.

Upon re voking the Def

endant’ s place ment in the Communi ty Correc tions progr am, the trial court ha d to determine w hich sentenc ing a lternative w as a ppropriate for the D efe ndant. The tria l

cour td et er m i n ed t h at t h e D ef en d an ts h o u l d b e p l ac ed i n co n fi n em en twi t h t h e TennesseeDepa rtment of Cor re c tio n. We f

indno abu se of

dis c re tio n in thi s ruli ng . T he De fe nd a nt ha d d e mon str a te d h is

un w il li n g n e s s to c o mp ly w ith th e te r ms o f a s e n te n c e in v o lv in g r e le a s e in th e c o mm u n it y . The De fe nd a nt e xpre sse d n o r e mor se fo r h is r e pe a te d v iol a tio ns a nd , f urthe r, de mon str a te d h ims e lf to-4-

be a le ss tha n c re dible wi tne ss t o th e c ou rt . T he De fe nd a nt’ s c on du c t e nti tle d th e tr ia l c ou rt to conclude that the Def

endant’ s potential for rehabilitation was less than promising. Ac cording ly , we conclude that the trial court did not abuse its discretion in ordering the De fe n d an t to serve the

re ma ind e r o f h is s e nte nc e in c on fi ne me nt.

The judg ment of the trial c ourt is affirmed.

___________________________________ DAVID H. WEL LES, J UDGE