State of Tennessee v. Larry D. McGuire ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 19, 2012
STATE OF TENNESSEE v. LARRY D. MCGUIRE
Appeal from the Circuit Court for Maury County
No. 17481 Robert L. Jones, Judge
No. M2011-02070-CCA-R3-CD - Filed September 4, 2012
Appellant, Larry D. McGuire, was indicted by the Maury County Grand Jury for felon in
possession of a handgun. After a guilty plea, Appellant was sentenced to two years in
incarceration as a Range II, multiple offender. After several months in incarceration,
Appellant was granted determinate release. Subsequently, a probation violation warrant was
filed. Appellant’s probation was partially revoked for time served and Appellant was
reinstated to a new, two-year term of probation. A second probation violation warrant was
filed. After a hearing, Appellant’s probation was revoked. The trial court ordered him to
serve his sentence in confinement. Appellant appeals, claiming that the trial court erred in
determining that he violated his probation and ordering that he serve the sentence in
incarceration. After a review of the record and authorities, we conclude that the trial court
did not abuse its discretion in revoking Appellant’s probation. Consequently, the judgment
of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
D ONALD P. H ARRIS , S P. J., delivered the opinion of the court, in which T HOMAS T.
W OODALL, and JOHN E VERETT W ILLIAMS, JJ. , joined.
Michelle W. Vanderee, Assistant Public Defender, Columbia, Tennessee, for the appellant,
Larry D. McGuire.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Mike Bottoms, District Attorney General; and Brent A. Cooper, Assistant District
Attorney General, for the appellant, State of Tennessee.
OPINION
Factual Background
Appellant was indicted on November 20, 2007, by the Maury County Grand Jury for
possessing a handgun after being convicted of a felony, a violation of Tennessee Code
Annotated section 39-17-1307.
On September 3, 2008, Appellant pled guilty in exchange for a two-year sentence as
a Range II, multiple offender. Appellant was released on a determinate release on March 25,
2009.
On September 2, 2009, a probation violation warrant was filed against Appellant,
alleging that Appellant had violated several of the terms and conditions of his probation. On
March 22, 2010, Appellant’s probation was partially revoked. Appellant was given credit
for time served and reinstated to a new two-year term of probation.
On June 1, 2011, a second probation violation warrant was issued against Appellant.
This warrant alleged that Appellant had a “New Arrest” on May 25, 2011, for possession of
crack cocaine for resale in a drug-free zone, possession of drug paraphernalia, and simple
possession. The warrant alleged that Appellant had violated the following rules of probation:
(1) I will obey the laws of the United States, or any State in which I may be,
as well as any municipal ordinances.
...
(8) I will not use intoxicants (beer, whiskey, wine, etc) of any kind, to excess,
or use or have in my possession any narcotic drugs or marijuana. I will not
enter an establishment whose prime purpose is to sell alcoholic beverages
(bars, taverns, clubs, etc.). I will submit to random drug screens as directed.
The trial court held a hearing on the matter. At the hearing, Chris Hill, the probation
officer for Appellant’s case, testified. According to Mr. Hill, the warrant was issued after
Appellant was arrested for possession of crack cocaine for resale in a drug-free zone,
possession of drug paraphernalia, and simple possession.
Officer Brad Ribley of the Columbia Police Department testified that he executed a
search warrant at 108 Sycamore Street in Columbia, Tennessee on May 25, 2011. The
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warrant was procured after someone in the Narcotics and Vice Department had purchased
cocaine from the residence. The purpose of the warrant was to locate “crack cocaine,
paraphernalia and the proceeds from the sale of crack cocaine.” When the warrant was
executed, Appellant was in the residence with his fourteen-year-old son.
Officers found a pack of Newport cigarettes in the master bedroom in the top dresser
drawer. Inside the cigarette pack there was a plastic bag that contained crack cocaine.
Officer also found a small amount of marijuana as well as “some razor blades with white
residue.” Appellant’s identification card was found in the drawer with the crack cocaine.
Officer Ribley opined that the razor blades were used to cut the cocaine rocks for
personal use or resale. The marijuana that was found was “kind of a bud that was all
together” in the drawer. When weighed at the scene by Officer Ribley, the crack cocaine
weighed 1.5 grams. Officer Ribley testified at the hearing that he was not going to charge
Appellant with the sale of cocaine.
After being advised of his rights, Appellant informed the officers that he lived at the
house. He told them that his girlfriend did not know “anything” and anything they found
belonged to him, not his girlfriend.
Appellant testified at the hearing. He claimed he was “caught up” in an illegal search
and seizure by the Drug Task Force. Appellant stated that his girlfriend had just gotten out
of the hospital from getting a brain tumor removed. Further, Appellant claimed that he does
not sell cocaine but that he smokes it and is, in fact, addicted to cocaine. The cocaine found
was for his “personal use” but he did not pay for it, claiming instead that it was given to him
by someone else. Appellant acknowledged that smoking crack cocaine was a violation of his
probation but explained he did not know that he was doing something wrong because he was
“high.”
Appellant insisted that he had worked for two months during his probation. This
information was not independently verified.
At the conclusion of the hearing, the trial court determined that Appellant had violated
the terms of his probation. The trial court fully revoked Appellant’s probation and ordered
him to serve his original sentence of two years, giving Appellant credit for time served.
Appellant filed a timely notice of appeal, challenging the revocation of probation.
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Analysis
On appeal, Appellant insists that the trial court abused its discretion in revoking his
probation. Specifically, he claims that the evidence used to show he committed new offenses
was insufficient. In the alternative, Appellant argues that his clear need for alcohol and drug
treatment should have resulted in “alternative discretionary sentencing options such as in-
patient treatment with a split-confinement or extension of probation.” The State argues that
probation was properly revoked after Appellant admitted to the violation.
A trial court may revoke probation and order the imposition of the original sentence
upon a finding by a preponderance of the evidence that the person has violated a condition
of probation. T.C.A. §§ 40-35-310 & -311. After finding a violation of probation and
determining that probation should be revoked, a trial judge can: (1) order the defendant to
serve the sentence in incarceration; (2) cause execution of the judgment as it was originally
entered, or, in other words, begin the probationary sentence anew; or (3) extend the
probationary period for up to two years. See T.C.A. §§ 40-35-308(c) & -311(e); State v.
Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). The decision to revoke probation rests within
the sound discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim.
App. 1991). Revocation of probation and a community corrections sentence is subject to an
abuse of discretion standard of review, rather than a de novo standard. State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown if the record is devoid of
substantial evidence to support the conclusion that a violation of probation has occurred. Id.
The evidence at the revocation hearing need only show that the trial court exercised a
conscientious and intelligent judgment in making its decision. State v. Leach, 914 S.W.2d
104, 106 (Tenn. Crim. App. 1995).
We have reviewed the record on appeal and find ample evidence to support the trial
court’s conclusion that a violation of probation occurred. Appellant himself testified that he
had violated the terms of his probation by using cocaine. When a trial court has determined
that a defendant has violated the terms of his probation, the trial court may choose to order
the defendant to serve the remainder of his sentence in incarceration as originally ordered.
In the case at hand, the trial court decided to do so. That decision is supported by the fact
Appellant had previously violated his probation in the same case. Based on the record before
us, we find no abuse of discretion in ordering Appellant to serve his sentence in
incarceration.
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CONCLUSION
For the foregoing reasons, we affirm the decision of the trial court.
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DONALD P. HARRIS, SPECIAL JUDGE
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