State of Tennessee v. Derrick Keith Walker ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 25, 2012
STATE OF TENNESSEE v. DERRICK KEITH WALKER
Appeal from the Criminal Court for Hamilton County
No. 272440 Don W. Poole, Judge
No. E2012-00287-CCA-R3-CD - Filed July 31, 2012
The Hamilton County Criminal Court grand jury charged the defendant, Derrick Keith
Walker, with one count of attempt to commit the premeditated first degree murder of the
victim, Charles Vandergriff, and one count of the aggravated assault of the victim. The
defendant and the State entered into a plea agreement calling for dismissal of the attempted
murder count and a plea of guilty to aggravated assault, a Class C felony, with a six-year
Range I sentence to be served as 11 months and 29 days in confinement followed by
supervised probation. The agreement provided for the defendant to pay $13,000 in restitution
at the rate of $175 per month beginning on March 15, 2010. On December 17, 2009, the trial
court entered a judgment that implemented the terms of the plea agreement. In August 2011,
the State obtained a probation violation warrant claiming that the defendant garnered new
arrests and had failed to pay restitution. Following a revocation hearing, the trial court
revoked the defendant’s probation and ordered him into confinement to serve the balance of
his sentence. In this appeal, the defendant claims that the trial court erred by revoking the
probation and by ordering him to fully serve his original sentence. Because the record
supports the order of the trial court, we affirm the order.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.
Ardena J. Garth, District Public Defender; and Richard Kenneth Mabee and Anna Protano-
Biggs, Assistant District Public Defenders, for the appellant, Derrick Keith Walker.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Cameron Williams, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
In the revocation hearing, the defendant’s counsel conceded that the defendant
violated the terms of his probation, agreeing that the defendant had pleaded guilty in
Kentucky to burglary and that the defendant had not paid restitution as ordered by the trial
court.
The defendant testified that he violated his probation by “catching two new
felonies and a misdemeanor and fail[ing] to pay [his] restitution.” He testified that his ability
to pay restitution was compromised by his living expenses, including rent and “gas to go to
school.” He said that he relied upon a “temporary agency” for employment and that he
obtained work only two or three days a week. He testified that he had obtained a graduate
equivalency diploma and had some carpentry skills but that he had “very little job history.”
He admitted that he had a “drug problem there for a long time” and that his drug habit
contributed to his offense in Kentucky. He testified that he had never completed a treatment
program but had attended Alcoholics Anonymous meetings. The defendant expressed a need
for help with his drug problem and professed a late understanding “not to go about the quick
and easy way to get things out, [that] all good things take time.”
The defendant introduced into evidence a letter from his mother, who did not
allow drugs in her home and who affirmed in the letter her willingness to allow the defendant
to live in her residence.
On cross-examination, the defendant testified that he had paid two installments
toward the court-ordered restitution. He admitted that his conviction offense in Tennessee
involved his assaulting the victim with a baseball bat and that the subsequent burglary
offense in Kentucky emanated from his being caught trying to steal copper tubing from an
abandoned house at a time when he was using “liquid hydro codeine” laced with marijuana
and “straight, alcohol.”
Following the argument of counsel, the trial court found that “overwhelming
evidence” established that the defendant violated the terms of his probation, and the court
expressed its reliance primarily upon his re-offending in Kentucky while on probation. The
court indicated that it could discern no appropriate sanction for the violation other than to
order the defendant to serve the balance of his sentence in confinement.
On appeal, the defendant argues that because his offenses are related to his
drug problem and because he has not received any treatment for the problem, the court
should have pursued a remedial program in lieu of incarceration. Because the record
supports the trial court’s discretionary ruling to impose confinement, we agree with the State
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that the order of revocation and confinement should be affirmed.
The accepted appellate standard of review of a probation revocation is abuse
of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[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). The
1989 Sentencing Act expresses a burden of proof for revocation cases: “If the trial judge
finds that the defendant has violated the conditions of probation and suspension by a
preponderance of the evidence, the trial judge shall have the right by order duly entered upon
the minutes of the court to revoke the probation and suspension of sentence. . . .” T.C.A. §
40-35-311(e)(1).
Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation and
“[c]ause the defendant to commence the execution of the judgment as originally entered, or
otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614 S.W.2d 71,
73 (Tenn. Crim. App. 1980). Following a revocation, “the original judgment so rendered by
the trial judge shall be in full force and effect from the date of the revocation of such
suspension.” Id. § 40-35-310.
In the present case, the evidence established that the defendant violated the
terms of his probation, and the defendant does not contend otherwise. Additionally, the trial
court did not abuse its discretion by imposing confinement for the remainder of the sentence.
After receiving the largess of probation as part of a split-confinement sentence, the defendant
in short order went to Kentucky and committed at least one felony offense. Based upon this
fact alone, we cannot say that the trial court abused its discretion in ordering confinement.
Accordingly, the order of the trial court is affirmed.
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JAMES CURWOOD WITT, JR., JUDGE
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