State of Tennessee v. Blake O. Swann ( 2019 )

11/08/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 25, 2019 Session
STATE OF TENNESSEE v. BLAKE O. SWANN
Appeal from the Criminal Court for Washington County
No. 42893 Stacy L. Street, Judge
No. E2018-00354-CCA-R3-CD
The Defendant, Blake O. Swann, appeals the Washington County Criminal Court’s order
revoking his probation for his aggravated assault conviction and ordering him to begin anew
his four-year sentence on community corrections. The Defendant contends that the trial
court abused its discretion by revoking his probation. We affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.
Brennan M. Wingerter (on appeal), Knoxville, Tennessee, and Misty Buck (revocation
hearing), Elizabethton, Tennessee, for the appellant, Blake O. Swann.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Ken C. Baldwin, District Attorney General; and Fred Lance, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
On January 29, 2018, the Defendant entered a best interest guilty plea, pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970), to aggravated assault, and he received a Range
I sentence of four years’ probation. The State’s recitation of the facts at the guilty plea
hearing reflects that
officers responded [and] . . . made contact with Jeremy Castillo. He had stated
that there had been a physical altercation with Mr. Swann. Mr. Swann became
angry with the victim for using the dumpster. They had argued and then Mr.
Swann took brass knuckles out of his pocket and then hit the victim, Jeremy
Castillo. There would have been a neighbor who would have also
corroborated the victim’s statement in that.
On March 15, 2018, a probation violation warrant was issued, after the Defendant’s
probation officer alleged that he engaged in assaultive, abusive, threatening or intimidating
behavior. The probation officer alleged that the Defendant sent two emails to the officer in
which the Defendant referred to the officer as a “b----, fool, and a------” and in which the
Defendant made threatening statements that the Defendant was “going to win,” “good luck,”
and “no one will stop me.”
At the probation revocation hearing, the Defendant conceded that he had violated the
terms of his probation. Based upon the agreement of the parties, the trial court revoked the
Defendant’s probation and placed him on community corrections for four years. The court
admonished the Defendant to treat his probation officer and court personnel with respect, and
the Defendant stated he understood. The court’s written order reflects that the Defendant
engaged in assaultive, abusive, threatening, or intimidating behavior and that the Defendant
was to begin anew his four-year sentence on community corrections. This appeal followed.
The Defendant contends that the trial court erred by revoking his probation because
the record does not contain evidence that he engaged in assaultive, abusive, threatening, or
intimidating behavior. He, likewise, asserts the record does not reflect that he engaged in
gang-related activity or other conduct posing a threat to others and that similar conduct had
resulted in probation revocations in other cases. The State responds that the trial court did
not err by revoking the Defendant’s probation. We agree with the State.
Our supreme court has concluded that a trial court’s decision to revoke a defendant’s
probation “will not be disturbed on appeal unless . . . there has been an abuse of discretion.”
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (citing State v. Williamson, 619 S.W.2d
145, 146 (Tenn. Crim. App. 1981)). An abuse of discretion has been established when 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. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980); see State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v.
Grear, 568 S.W.2d 285, 286 (Tenn. 1978). When a trial court finds by a preponderance of
the evidence that a defendant has violated the conditions of probation, the court “shall have
the right . . . to revoke the probation.” T.C.A. § 40-35-311(e)(1) (2014). After revoking a
defendant’s probation, the trial court may return a defendant to probation with modified
conditions as necessary, extend the period of probation by no more than two years, order a
period of confinement, or order the defendant’s sentence into execution as originally entered.
T.C.A. §§ 40-35-308(a), (c) (2014), -310 (2014). “In probation revocation hearings, the
credibility of witnesses is for the determination of the trial judge.” Carver v. State, 570
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S.W.2d 872, 875 (Tenn. Crim. App. 1978) (citing Bledsoe v. State, 378 S.W.2d 811, 814
(Tenn. 1965)).
The record reflects that the Defendant was accused of engaging in assaultive, abusive,
intimidating, or threatening behavior based upon language he used in two emails addressed
to his probation officer. This was the only allegation contained in the probation violation
warrant. At the revocation hearing, the Defendant admitted that he had violated the
conditions of his release. See State v. Ross Pruitt, No. E2015-01494-CCA-R3-CD, 2016 WL
3342356, at *4 (Tenn. Crim. App. June 8, 2016) (“The Defendant’s admission that he
violated the terms of his probation, alone constitutes substantial evidence to support the
revocation.”); State v. Daniel Earl Gentry, No. E2018-01010-CCA-R3-CD, 2019 WL
1224637, at *2 (Tenn. Crim. App. Mar. 15, 2019) (“[T]he defendant stipulated to violating
the terms of his probation, establishing an adequate basis for the trial court’s revocation of
his probation.”). As a result, the record supports the trial court’s finding that the Defendant
violated the conditions of his release.
Because we have concluded that the record supports the trial court’s finding that the
Defendant violated the conditions of his probation, we likewise conclude that the court did
not abuse its discretion by revoking the Defendant’s probation, which we note was agreed
upon by the parties. See T.C.A. § 40-35-311(e)(1). Once the court revoked the Defendant’s
probation, it had the authority to resentence the Defendant to serve his four-year sentence on
community corrections. See id. §§ 40-35-308(a), (c), -310. The Defendant is not entitled to
relief.
Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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