State of Tennessee v. Barry Wayne Gossage ( 2017 )


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  •                                                                                         09/26/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs June 20, 2017
    STATE OF TENNESSEE v. BARRY WAYNE GOSSAGE
    Appeal from the Circuit Court for Hickman County
    No. 2010-CR-5130    Michael W. Binkley, Judge
    No. M2016-02264-CCA-R3-CD
    The Defendant, Barry Wayne Gossage, appeals the trial court’s revocation of his
    probation and reinstatement of his original sentence in confinement. On appeal, he
    argues that he should have been sentenced to a new term of community corrections or
    probation. Following our review, we affirm the judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
    MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.
    Richard Boehms, Hohenwald, Tennessee, for the appellant, Barry Wayne Gossage.
    Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
    Kim R. Helper, District Attorney General; and Kate Yeager Delk, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTS
    On December 21, 2010, the Defendant pled nolo contendere to aggravated robbery
    and theft of property under $1000. Pursuant to the plea agreement, the Defendant was
    sentenced to concurrent terms of ten years for the aggravated robbery conviction and one
    year for the theft conviction, with one year to be served in confinement and the remainder
    on community corrections.
    A community corrections violation warrant was issued on December 10, 2015,
    alleging that the Defendant had been untruthful about his court date in a Williamson
    County case, had not reported for a drug screen, and had violated his house arrest. The
    Defendant admitted the violations, and the trial court entered an order on March 9, 2016,
    revoking the community corrections sentence and transferring the Defendant to probation
    for the remainder of his sentence, with the conditions that he successfully complete the
    rehabilitation program at Hope Center Ministries and plead guilty in the Williamson
    County case.
    On June 14, 2016, a probation violation warrant was issued, alleging that the
    Defendant had been discharged from the Hope Center for noncompliance. At the
    probation violation hearing, Roy Stinson testified that he had been employed with
    community corrections since February 2013 and that the Defendant already had two
    violations in the system when Mr. Stinson took over his supervision from another case
    worker. Mr. Stinson testified regarding the Defendant’s conduct while on community
    corrections:
    [The Defendant] . . . would fail numerous drug test[s]. In addition to failing
    a drug test, he would be seen out without having permission to be out. . . .
    As I recall, I tried several things with [the Defendant] as far as moving him
    back to level one, having him come see me more often. That just didn’t
    seem to work. And in the very end right before I did the violations, there
    [were] . . . additional charges that he had received in – out of Williamson
    County, I think it was.
    Mr. Stinson said that the Defendant was dishonest about his Williamson County case.
    The Defendant’s community corrections sentence was revoked in March 2016, and he
    was allowed to enter the Hope Center program although Mr. Stinson was not in favor of
    that decision.
    Steven Paul with Hope Center Ministries testified that the Defendant entered the
    eight-month rehabilitation program on March 11, 2016. The Defendant agreed to all of
    the program’s rules and regulations and signed the policy and procedures form, which
    was admitted as an exhibit. Additionally, the rules were stressed to all of the residents
    each week during community meetings. The Defendant never indicated that he did not
    understand the rules.
    Mr. Paul said that about one month after the Defendant entered the program, the
    Defendant filled a prescription and distributed the medication to other residents. Despite
    this infraction, Mr. Paul allowed the Defendant to restart the program on April 22, 2016.
    However, the Defendant received numerous warnings and “write-up, after write-up, after
    write-up” for smoking violations, falling asleep during Bible study, and failing to
    2
    complete his chores and “book work.” The Defendant was subsequently terminated from
    the program on June 10, 2016.
    On cross-examination, Mr. Paul described one occasion where the Defendant had
    an entire weekend to complete his book work but played Monopoly instead. Because the
    Defendant reported that he had a bad back, he was placed on kitchen duty or other light
    work. Mr. Paul did not discuss any mental issues with the Defendant but said that the
    Defendant “had to go to some type of doctor.” He denied that the Defendant’s age was a
    factor in his termination from the program.
    The Defendant testified that he was discharged from the Hope Center because of
    his disability, explaining that his spine was broken in four places as a result of his falling
    from a twenty-foot ladder in 2006. He could not perform heavy lifting or manual labor
    and informed the staff at the Center of his disability prior to entering the program. He
    suffered a ruptured brain aneurysm in 2010 and underwent four surgeries, which affected
    his memory and caused reading and comprehension problems. Additionally, the
    Defendant had been diagnosed with bipolar disorder and was taking medications for that
    condition. He explained that, during a manic episode, he stayed up for two or three days
    without sleeping and then, when the episode ended, had trouble staying awake. The
    Defendant said that his chores at the Center included cooking, mowing the yard, and
    cleaning the church. The Defendant said that he injured his back while shoveling mulch
    at the church and that he was taken to a doctor. He was prescribed an anti-inflammatory
    medication, which was approved by the Center. The Defendant claimed that, on the day
    of his termination from the program, he was told the program was designed for younger
    people.
    On cross-examination, the Defendant acknowledged that he attended two
    programs in 1995 and 1997 for cocaine addiction and that he started using opiates in
    2006 when he injured his back. He admitted that he occasionally smoked marijuana and
    that he had a pending charge for drug paraphernalia in Williamson County. He said that
    charge was the result of his picking up a spoon in the parking lot of the pain clinic where
    he received treatment because he was afraid a child would pick it up. Regarding his
    conduct at Hope Center, the Defendant admitted that he received warnings “[a] few
    times” before receiving write-ups. He denied distributing his medication to other
    residents, claiming that one of the residents saw the medication in his locker and took
    some of it.
    Nicole Norman, the Defendant’s current probation officer, testified that she
    emailed Rick Owens at the Hope Center on April 13, 2016, inquiring about the
    Defendant’s progress. Mr. Owens responded that the Defendant was struggling with
    compliance with the Center’s policies and that the staff believed the Defendant was
    3
    “trying to sabotage his rehabilitation.” Mr. Owens said that the Defendant was given
    chores based on his weight limits due to his back injury. The emails exchanged between
    Ms. Norman and Mr. Owens were admitted as exhibits to the hearing.
    At the conclusion of the hearing, the trial court revoked the Defendant’s probation
    and ordered him to serve his original sentence in confinement.
    ANALYSIS
    The Defendant argues that the trial court erred in revoking his probation and
    should have sentenced him to “a new term of [c]ommunity [c]orrections or probation to
    include successful completion of another rehabilitation program.”1
    A trial court is granted broad authority to revoke a suspended sentence and to
    reinstate the original sentence if it finds by the preponderance of the evidence that the
    defendant has violated the terms of his or her probation and suspension of sentence.
    Tenn. Code Ann. §§ 40-35-310, -311 (2014). The revocation of probation lies within the
    sound discretion of the trial court. State v. Harkins, 
    811 S.W.2d 79
    , 82 (Tenn. 1991);
    State v. Stubblefield, 
    953 S.W.2d 223
    , 226 (Tenn. Crim. App. 1997); State v. Mitchell,
    
    810 S.W.2d 733
    , 735 (Tenn. Crim. App. 1991). To show an abuse of discretion in a
    probation revocation case, “a defendant must demonstrate ‘that the record contains no
    substantial evidence to support the conclusion of the trial judge that a violation of the
    conditions of probation has occurred.’” State v. Wall, 
    909 S.W.2d 8
    , 10 (Tenn. Crim.
    App. 1994) (quoting State v. Delp, 
    614 S.W.2d 395
    , 398 (Tenn. Crim. App. 1980)).
    At the conclusion of the probation violation hearing, the trial court stated it
    “doubt[ed]” the Defendant’s testimony, explaining, “[T]he thing that really ruined it for
    me, was this testimony about the spoon in the parking lot. And I was trying my best to
    think, . . . let’s just look at the good side of this and think whether or not that really makes
    any good sense. And to me frankly, it does not.” In revoking the Defendant’s probation,
    the trial court determined:
    [N]umerous opportunities have been provided to [the Defendant] to
    try to turn his life around. Each and every time, he has had difficulty
    following the rules. He has had difficulty doing what he is required to do to
    1
    It does not appear from the record that any of those involved in this matter realized that, since
    the Defendant pled guilty to aggravated robbery, he was not eligible for either probation or community
    corrections. See Tenn. Code Ann. § 40-35-303(a); State v. Denver L. Brown, III, No. E2007-02786-
    CCA-R3-CD, 
    2008 WL 4724685
    , at *1 (Tenn. Crim. App. Oct. 27, 2008). For the purpose of this appeal,
    that oversight is not of consequence because we conclude that the trial court did not err in ordering the
    Defendant to serve his ten-year sentence in confinement.
    4
    at least show some direction in trying to rehabilitate himself and to get
    himself off of the drugs to follow the rules and do really . . . simple things
    that need to be done to stay in a program.
    ....
    I think, based upon the testimony of all of the witnesses[,] the
    abundant proof of violations that have occurred in the past, the numerous
    opportunities that [the Defendant] has had for rehabilitation, that he has
    simply failed to take advantage of those opportunities. And it’s no one’s
    fault but his own. As much as I regret this, the facts speak for themselves.
    And based on all of the testimony, the standard of proof involved, his
    probation will be revoked and the sentence will be imposed.
    Upon a finding that a violation has occurred, the trial court may, in its discretion,
    either: (1) order incarceration; (2) cause execution of the judgment as it was originally
    entered; or (3) extend the probationary period by up to two years. See State v. Hunter, 
    1 S.W.3d 643
    , 644 (Tenn. 1999); see also Tenn. Code Ann. §§ 40-35-310, -311(e), -308(c)
    (2014). “[A]n 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), perm.
    app. denied (Tenn. June 28, 1999); see also State v. Markquitton Sanders, No. M2010-
    02212-CCA-R3-CD, 
    2011 WL 4529655
    , at *2 (Tenn. Crim. App. Sept. 29, 2011), perm.
    app. denied (Tenn. Nov. 17, 2011).
    The Defendant was sentenced to ten years, with one year to serve in confinement
    and the balance on community corrections. The Defendant violated the terms of his
    community corrections sentence, and it was revoked in March 2016. However, he was
    then granted probation with the condition that he successfully complete the rehabilitation
    program at Hope Center Ministries. Testimony at the probation violation hearing showed
    that the Defendant repeatedly violated the Center’s policies and rules even after being
    allowed to restart the program, which ultimately resulted in his termination from the
    program in June 2016. As noted by the trial court, the Defendant has been provided
    numerous opportunities for rehabilitation, but he has failed to succeed. Thus, we
    conclude that the trial court did not abuse its discretion in revoking the Defendant’s
    probation and ordering that he serve his sentence in confinement.
    5
    CONCLUSION
    Based on the foregoing authorities and reasoning, we affirm the sentencing
    decision of the trial court.
    _________________________________
    ALAN E. GLENN, JUDGE
    6
    

Document Info

Docket Number: M2016-02264-CCA-R3-CD

Judges: Judge Alan E. Glenn

Filed Date: 9/27/2017

Precedential Status: Precedential

Modified Date: 9/27/2017