State of Tennessee v. Alex C. Nolan ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 13, 2011
STATE OF TENNESSEE v. ALEX C. NOLAN
Direct Appeal from the Circuit Court for Bedford County
No. 15717 Robert Crigler, Judge
No. M2011-01569-CCA-R3-CD - Filed March 12, 2012
The defendant, Alex C. Nolan, appeals the sentence of incarceration he received following
the revocation of his probation by the Bedford County Circuit Court. He was convicted of
possession of cocaine with the intent to sell and sentenced to eleven years of incarceration.
However, the defendant was released onto probation by the Department of Correction
through the boot camp program. Thereafter, a probation violation warrant was issued,
charging the defendant with multiple violations of the terms and conditions of his probation.
The defendant pled guilty to violating those terms, but he now contends that the trial erred
by ordering the remainder of his sentence be served in incarceration. After review, we
conclude that the defendant has not shown that the trial court abused its discretion in ordering
the revocation or in imposing a sentence of incarceration. Therefore, the judgment of the
trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.
Donna Orr Hargrove, District Attorney General, and A. Jackson Dearing, III, Assistant
Public Defender, for the appellant, Alex C. Nolan.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Charles Frank Crawford, Jr., Attorney General and Reporter; and Michael D.
Randles, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural History
In 2005, the defendant was found guilty of possession of cocaine with the intent to
sell and sentenced to a term of eleven years in the Department of Correction. However, the
defendant was allowed by the Department of Correction to participate in the boot camp
program. Following its completion, the defendant was released onto supervised probation
for the duration of his sentence. However, on January 5, 2009, a probation violation warrant
was issued against the defendant charging multiple violations of his probation, including an
arrest for new charges, failure to report and pay costs or fees, a failed drug screen, and
moving without permission or notification to his probation officer.
The probation violation report also contained notes regarding an incident in September
2008. It was at this point that the defendant tested positive for drugs and was behind on his
fees and costs. The defendant was given the opportunity to again comply with the terms of
probation, rather than having a violation warrant immediately issued. As part of that
compliance, he was to complete a drug and alcohol program, as well as follow a payment
schedule to bring his payments current. However, the defendant failed to comply with these
conditions and incurred additional violations. As a result, the violation warrant was issued.
At the probation violation hearing, the defendant pled guilty and acknowledged to the
court that he had violated the terms and conditions of his probation. He specifically
acknowledged that he had tested positive for marijuana and cocaine, that he had incurred new
charges and was convicted of driving on a revoked license, and that he had failed to meet
with his probation officer since October 2008. He further acknowledged that he had failed
to attend all the required meetings of the alcohol and drug program to which he had been
ordered. He testified that he had enrolled in the program and had attended a few classes, but
he then lost his job and was unable to afford the twenty-dollar fee required to attend. He
admitted that he had been dropped from the program.
The defendant further testified that, while serving this probation, he was also arrested
in Hamilton County for child support arrearage. While serving that sentence, he attended a
drug and alcohol education class, an anger management class, a parenting class, and was
accepted into a job training program. The defendant asked the court to return him to
probation so he could seek further drug and alcohol treatment. He stated that he was living
with his sister and was currently “drug free.” He believed that he could get a job and agreed
to take random drug screens if he was given an alternative sentence. The defendant’s sister
also testified, stating that the defendant could continue living with her and that she would be
the one to make the “first call” if the defendant violated the terms of his alternative sentence.
After hearing the evidence presented and reviewing the evidence in the record, the
trial court revoked the defendant’s probation after determining that he had violated the terms
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of his probation. Thereafter, the court determined that the defendant was not a proper
candidate for an alternative sentence and ordered that the balance of his sentence be served
in the Department of Correction. The defendant has now timely appealed that decision.
Analysis
On appeal, the defendant contends that the trial court improperly required him to serve
the balance of his sentence following the revocation of probation. He does not contest the
trial court’s finding that a violation occurred or the subsequent revocation. Rather, according
to his argument in the brief, the defendant violated the terms and conditions of probation only
by testing positive for a controlled substance, specifically stating that he “did not violate in
any other fashion other than testing positive.” Based upon that assertion, he urges that the
trial court should have based its sentencing determination upon how the defendant violated
probation, asserting that “split confinement followed by mandatory inpatient drug
rehabilitation” is the proper sentence. In other words, the defendant urges that the court
should have looked to the reason for the violation, i.e., drug use, and tailored a sentence
which addressed “the heart of the problem.”
If a trial court finds that a defendant “has violated the condition of probation and
suspension by a preponderance of the evidence, the trial judge shall have the right . . . to
revoke the probation and suspension of sentence and cause the defendant to commence the
execution of the judgment as originally entered or otherwise in accordance with [section] 40-
35-310.” T.C.A. § 40-35-311(e) (2010). When probation is revoked, “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.” T.C.A. § 40-35-310. Thus, the trial court retains the discretionary
authority to order the defendant to serve the original sentence. State v. Duke, 902 S.W.2d
424, 427 (Tenn. Crim. App. 1995). As this court has repeatedly noted, a trial court has but
two options when a probation violation has been found by a preponderance of the evidence:
(1) cause execution of the original judgment as it was originally entered or (2) modify the
defendant’s conditions of supervision, including extending the defendant’s probationary
period for up to two years. See T.C.A. §§ 40-35-308, -310, -311; State v. Bowling, 958
S.W.2d 362, 363 (Tenn. Crim. App. 1997).
A trial court may revoke probation upon a finding by a preponderance of the evidence
that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e) (2010).
The revocation of probation lies within the sound discretion of the trial court. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order to show that a trial judge abused his or
her discretion by revoking probation, the defendant must show that the record lacks
substantial evidence preponderating against the trial judge’s conclusion that a probation
violation occurred and that, because of the violation, probation should be revoked. Id.
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In ordering a sentence of incarceration following the revocation, the trial court made
several findings and conclusions on the record. The court noted that the defendant had a
“pretty good bit of a record,” which included convictions for possession of marijuana,
domestic assault, possession of a Schedule II controlled substance, possession of a weapon
with intent to go armed, a weapons conviction, “bail jumping,” driving on a suspended
license, public intoxication, two counts of assault, two convictions for driving under the
influence conviction, and three convictions for criminal trespass. The court then continued:
Then of course you have got this conviction, felony conviction, here
[eleven]-year sentence. Then even - - [did not] have to serve that, even though
that was my decision in the case. Th[ey] put you in the boot camp instead.
Then even after that when you had a violation the probation [officer]
in Hamilton County diverted violation without bringing it to my attention,
which my rule here is I am supposed - - my probation officers are supposed to
let me know when there is a violation.
But they gave you an ACRC without reporting it for violations.
Then again after that you still have violations for being convicted of
revoked drivers license; failing a drug screen; past due supervision fees; and
failure to report for a couple of months where they said you [did not] respond
to letters, phone calls; whereabouts were unknown.
....
I am going to order you to serve the balance of the sentence.
Again, we note that the defendant is not contesting the revocation of probation, which
would be futile in light of the fact that the defendant pled guilty to those violations. He only
contests the determination that the sentence be served in incarceration. Initially, we must
note that the argument put forth in the defendant’s brief is flawed in that it appears to rely on
the fact that the defendant violated probation only by using drugs. From our reading of the
record before us, that is not the case. Indeed, the trial court identified, and the defendant
admitted to, multiple violations of the terms and conditions of probation.
Regardless, the defendant has simply failed to show that the trial court’s determination
was in error. Upon a finding that a violation had occurred, the court was statutorily
authorized to reimpose the sentence as originally entered. The trial court stated that, because
of the defendant’s criminal record and his failure to comply with the release despite multiple
chances, he was simply not an appropriate candidate for alternative sentencing. Nothing in
the record before us indicates that the finding was an abuse of discretion as the defendant has
failed to establish evidence which preponderates against the court’s finding. Thus, the
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defendant is not entitled to relief.
CONCLUSION
After concluding that there was no abuse of discretion, we affirm the determination
made by the trial court.
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JOHN EVERETT WILLIAMS, JUDGE
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