IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1999 SESSION

STATE OF TENN ESSEE, ) )C.C.A. NO. W1999-01906-CCA-R3-CD Appellee, ) ) MADISON COUNTY VS. ) ) HON. FRANKLIN MURCHISON, LEE BELL, JR., ) JUDGE ) Appellant. ) (Revocati on of Com munity Corrections)

FOR THE APPE LLANT: FOR THE APPELLEE:
GEORGE GOOGE PAUL G. SUMMERS District Public Defender Attorney General & Repor ter VANESSA D. KING PATRICIA C. KUSSMA NN Asst. Public Defender Asst. Attorney General 227 West Baltimore St. Cordell Hull Bldg., 2nd Fl. Jackson, TN 38301 425 Fifth Ave., North Nashville, TN 37243-0493 C. MICHAEL ROBBINS 46 North Third St. JERRY WOODALL Suite 719 District Attorney General Memphis, TN 38103 (On Appeal) DONALD H. A LLEN Asst. District Attor

ney General Lowell Thomas S tate Office Bldg. Jackson, TN 38301

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge 

# FILED
December 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk2 

### O P I N I O N

The defendant pled guilty to thr ee counts of theft of property under five hundred dollars ($500), two counts of forger y, two counts of crimi nal impersonation, one count of aggravated crimi nal trespass, and was found guilty by a jur

y of one count of theft of property o ve r one thousand dollars ($1000). The defendant received an effect ive sentence ofeightyears with eleven months, twenty-nine days to be served in confinement and seven years and one day to be served in a community correc tions program. A petitio n was subse quently filed r equesting that the trial court revoke the defendant’s alternative sentence. After an evidentiary hearin g, the tr ial court removed the defendant from the community corrections p rogram and ordered that the defendant serve the remainder of his sentence in confinement. The def endant now appeals the trial court’s revocation of his sentence in the community corrections program. After a review of the record and applicable l aw, we find no merit to the defendant’s contentions and thus affirm the judgm ent of th e court be low.

The defendant first contends tha t the trial court’s order revoking his community

corrections sentence is void “as it is g roun de d on an illegal and void arrest warrant.” Specific ally, the defendant contends that the information provided by the affiant which was used

to justify the

defendant’s arrest was unsw orn. As such, the defendant argues, the warrant is vo id ab initio and any proc eedings based on the

warrant are void as well. This issue w

as not litigated at the tr ial level. In addition, the arrest warrant w as signed by the def endant’ s commun ity correct ions off icer unde r the sect ion title d “Affid avi t ” and the trial judge issued the warrant thereon. Any issue regarding a defect in the arrest warrant has been waived and cannot be considered on appeal. See State v. Lunati , 665 S.W.2d 739, 749 (Tenn. Crim. App. 1983).

The defendant next contends th at the t rial court abused its discretion in revoking his community corrections s entence and orderingthat he serve the remainder in confinement. The trial court has the discretion to rev oke a community correcti ons3

sentence upon a finding that the defendant has violated the conditions of his behavi oral contract. See State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). However, before a sentence may be revoked, the record must contain sufficient evidence to permit the tr ial court to make a n intellige nt and conscientious decisi on. Id. This Court will not disturb the trial court’s decis ion absent a finding that the tr ial court abused its discretion. Id. In order to find that the trial court abused its discretion, this Court must find that the record contains no substantial evidence t o support the trial court’s conclusionthat the defendant violated the terms of the communit y corrections prog ram. Id.

At the revocation hearing , the defendant’s community corr ection s officer, Clarence Fitzhugh, testified that although the defendant did sign up for the progr am and signed the behavioral contract , the defendant failed to report to anyone in the program as is required. In addition , the defendant failed to pay superv ision fees, court costs or fines. In his defense, thedefendant testified that he tried to report to the probation office but was told he was reporting to the wrong office. When he tried to report to the office to which he was dir

ec ted, he was ag ain instructed to report somewhere else. The defendant further testified t hat he did not pay his superv ision fees and court costs because he was paying chi ld support instead. In lig ht of the foregoing, the record amply supports the trial court’ s findings that the viol ations occurred.
Nevertheless, the defendant contends that he failed to follow the guidelines of the community

corrections program du e to a mental deficiency w hich wasnoted by the trial judge. At the revocati on hearing, the trial j udge stated that,

Although I would agree, [ th e defendant] seems to have a hard time und erst anding things . . . [the defendant] seems to have a difficult time getting things done and getting things done right. He reallydoes, but I th ink we’ve gone about as far as we can with him. He’s not ever goi ng to be a ble to successfully be on Community

Corrections or probati on. I’m goin g to send him to T DOC t o serve his sentence. . . . He’s violated . . . his Commun ity Correct ions progr am, in a su bstanti al way. We first note that, other than the trial court’s statements, there is absolutely no proof in the record supporting the defendant’s all egation that he is mentally deficient to such an extentthat he was unable to comply with the te rms o f his community correction s4

sentence. In any event, in the contex t of a probation violation, the majority view is that a mental defect may only be cons idered as mitigating e vidence. State v. Jeffrey D. Hunter , No. 01C01-9608-CC-00334, Williamson County (Tenn. Crim. App. filed October 30, 1997 , at Nashville). As such, the trial court met its obligation by specifically considering the defendant’s mental condition in mitigation of his failure to fol low the community

cor recti ons guidelines. How ever, the trial court

still concluded that the defendan t’s commu nity corrections sentence should be revoked. The record fully supports this decision.

The defendant further contends that the trial court erred in re voki ng his community corrections sentence on the basis of his failure to pay court costs and fees. The defendant argues that his child support obligations and other expenses prevented him from making the required payments. The defendant argues that, as a probationary sentence may not be revoked onthe naked proof of failure to pay re quired fees and there was no evidence that the defendant willfully refusedto make the payments, the trial court erred in revoking his community corrections sentence. However, the tria l court did not revoke thedefendant’s sentence solely on the basis of his failure to make the r equired payments. The t rial court emphasized the defendant’s failure to report to the program when making its decision to revoke the defendant’s sentence. The def endant’s failure to report is sufficient groun ds upon which the trial court could base its decision to revoke the defendant’s sentence. See T.C.A. § 40-35-311; Harkins , 811 S.W.2d at 82. As such, this issue is with out merit.

After a review of the record before us, we conclude that the r ecord contains sufficient proof to enable the trial court to mak e an intelligent and

conscientious decision. The trial court did not abuse its discretion in rev oking the defendant’ s commu nity corrections sentence. Acc ordingly, the judg ment of the trial court is affirmed.

______________________________ JOHN H. PEAY, Judge5

CONCUR:

______________________________ NORMA M. OGLE, Jud ge

______________________________ ALAN E. GLENN, Ju dge