State of Tennessee v. Sharris Nicole Thompson ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 10, 2016
STATE OF TENNESSEE v. SHARRIS NICOLE THOMPSON
Direct Appeal from the Circuit Court for Lawrence County
Nos. 28118, 28187, 28188, 28189 Stella Hargrove, Judge
No. M2015-02014-CCA-R3-CD – Filed July 20, 2016
The appellant, Sharris Nicole Thompson, pled guilty in the Lawrence County Circuit
Court to theft of property valued $1,000 or more but less than $10,000; misappropriation
of rental property valued $1,000 or more but less than $10,000; three counts of theft of
property valued $500 or less; and one count of misappropriation of rental property valued
$500 or less and ultimately received an effective four-year sentence to be served on
probation. Subsequently, the trial court revoked probation and ordered that the appellant
serve her effective sentence in confinement. On appeal, the appellant contends that the
trial court abused its discretion by denying her request for alternative sentencing. Based
upon the record and the parties’ briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.
Brandon E. White (on appeal), Columbia, Tennessee, and R.H. Stovall, Jr. (at trial),
Pulaski, Tennessee, for the appellant, Sharris Nicole Thompson.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Brent A. Cooper, District Attorney General; and Christi Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In November 2009, the appellant pled guilty to theft of property valued $1,000 or
more but less than $10,000, a Class D felony; misappropriation of rental property valued
$1,000 or more but less than $10,000, a Class D felony; three counts of theft of property
valued $500 or less, a Class A misdemeanor; and one count of misappropriation of rental
property valued $500 or less, a Class A misdemeanor. Pursuant to the plea agreement,
she was to receive two-year sentences for the felonies, to be served consecutively, and
sentences of eleven months, twenty-nine days for the misdemeanors, to be served
concurrently with each other and the felonies, for a total effective sentence of four years.
The trial court granted the appellant’s request for judicial diversion and placed her on
probation for four years.
In September 2010, a probation violation report was filed, alleging that the
appellant violated probation by being arrested for possession of marijuana, leaving
Lawrence County and Tennessee without her probation officer’s permission, failing to
report on September 8, 2010, and failing to pay court costs. In April 2011, the trial court
found that the appellant had violated probation, revoked judicial diversion, and imposed
the effective four-year sentence to be served on supervised probation. In January 2012, a
second probation violation report was filed, alleging that the appellant violated probation
by failing to obtain employment, failing to report to her probation officer in December
2011, failing to attend an Administrative Case Review on January 11, 2012, and failing to
make a payment to the court in December 2011.
The appellant was not arrested for the probation violation until August 6, 2015. At
the probation revocation hearing in September 2015, Beth Ladner of the Board of
Probation and Parole testified that the appellant violated probation by failing to obtain
employment, failing to report in December 2011, failing to report as scheduled for an
Administrative Case Review hearing, and failing to make payments toward her fines and
costs. Ms. Ladner acknowledged that she never supervised the appellant, that she had no
personal knowledge about the alleged violations, and that she was basing her testimony
on the probation violation report. Ms. Ladner said she recognized the appellant and
identified her in the courtroom.
On cross-examination, Ms. Ladner testified that she had not seen or heard from the
appellant in almost four years. She did not know why the appellant stopped reporting to
the appellant’s probation officer.
The appellant acknowledged that she had not reported to her probation officer
since December 2011 and testified that she had “no excuses for not reporting.” She
stated that for the past three years, she had been living in Ohio, trying to “get [her] life
straight and get away from people.” During that time, the appellant had eight
miscarriages and one stillbirth. However, she gave birth to twins in June 2015. The
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appellant was arrested for the second probation violation in August 2015 and waived
extradition to Tennessee. At the time of the revocation hearing, the twins were living
with her parents in Tennessee.
The appellant acknowledged that she violated probation but requested
“community corrections even with an ankle monitor, or house arrest at [her] parents’
house.” She said that she wanted to raise her children and that her parents would help her
pay for the ankle monitor. She said she was doing well on probation in 2011 until she
became involved with the wrong people and the wrong friends. The appellant’s husband
passed away in 2008, and she “O.D’d” on drugs in 2012. However, after the overdose,
she “kind of straightened up.” She stated that she wanted to be with her children and
watch them grow up and that she would report to her probation officer every day if
necessary.
On cross-examination, the appellant testified that she was thirty-one years old and
worked at Summit of Lawrenceburg for nine years. However, after her husband died, “it
all went downhill.” She said that she had not worked since 2008 or 2009 but that she had
filled out applications for employment and that she was applying for disability based
upon degenerative bones in her back. She stated that she was separated from the father of
her twins and that she would work cleaning houses if released from confinement. She
said that although she was disabled, she had been told she was too young to receive
disability benefits. She said that she was trying to earn her GED in jail and that she
would rather work than receive disability payments.
Upon being questioned by the trial court, the appellant testified that the court
revoked judicial diversion because she went to Alabama without permission. Judicial
diversion also was revoked because she was charged with possession of marijuana. She
acknowledged that she “didn’t even make it a year” before the trial court revoked judicial
diversion.
Shawna Insgo, the appellant’s mother, testified that in the past three years, the
appellant had had ten miscarriages. Four of those occurred in Tennessee before the
appellant moved to Ohio. In June 2015, the appellant had twins, a boy and a girl. Ms.
Insgo was fifty-one years old and had custody of the children. She said that she could get
the appellant a job cleaning houses, that the appellant would earn $75 to $100 per week,
and that the appellant could use all of the money to pay for probation. She stated that the
appellant needed a third chance so that the appellant could be with her children.
On cross-examination, Ms. Insgo testified that the appellant had not lived with her
since the appellant left Tennessee and that she did not know who the appellant lived with
in Ohio. She stated that the appellant was a responsible mother, that the appellant loved
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her children, and that the children had changed the appellant. She acknowledged that the
appellant only had custody of the twins for one and one-half months before the appellant
was arrested and that she did not know how the appellant supported herself during that
time.
At the conclusion of the hearing, the trial court noted that the appellant served
only nine months on probation before the court revoked judicial diversion. She was then
sentenced to probation, and a second probation violation report was filed. The trial court
found that the appellant was “an absconder big time,” having failed to report to her
probation officer since December 2011. The court revoked her probation and ordered
that she serve her effective four-year sentence in confinement with credit for time served.
II. Analysis
The appellant contends that the trial court should have granted her request for
alternative sentencing by “returning her to probation on modified conditions or extending
her remaining probationary period for a period not to exceed two years.” Upon finding
by a preponderance of the evidence that the appellant has violated the terms of his
probation, a trial court is authorized to order an appellant to serve the balance of his or
her original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310, -311(e); State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests in the sound
discretion of the trial court and will not be overturned by this court absent an abuse of
that discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); see State
v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013) (concluding that abuse of discretion with a
presumption of reasonableness is the appropriate standard of appellate review for all
sentencing decisions). “A trial court abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous
assessment of the proof, or applies reasoning that causes an injustice to the complaining
party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).
Here, the appellant acknowledges that she violated probation but contends that the
trial court erred by ordering that she serve her effective four-year sentence in
confinement because her life “fell apart” after her husband passed away in 2008, she
endured numerous miscarriages and one stillbirth, and she moved to Ohio “to try to start
her life anew.” The appellant argues that the trial court should have granted her request
for alternative sentencing because she does not have a lengthy criminal record,
confinement is not necessary to avoid depreciating the seriousness of her crimes, and she
would be cleaning houses and caring for her twins if the trial court had not ordered
confinement. However, this court has repeatedly cautioned that “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,
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at *2 (Tenn. Crim. App. at Nashville, Feb. 10, 1999); see State v. Timothy A. Johnson,
No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim. App. at
Nashville, Feb. 11, 2002). Thus, the trial court did not err by ordering that the appellant
serve her effective four-year sentence in confinement.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.
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NORMA MCGEE OGLE, JUDGE
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