State of Tennessee v. Marcus Terrell Johnson ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 27, 2012
STATE OF TENNESSEE v. MARCUS TERRELL JOHNSON
Appeal from the Criminal Court for Knox County
No. 94097 Steven W. Sword, Judge
No. E2012-00015-CCA-R3-CD - Filed August 27, 2012
Charged by the Knox County Criminal Court grand jury with the sale and delivery of
cocaine, a Schedule II controlled substance, the defendant, Marcus Terrell Johnson, pleaded
guilty to the sale of cocaine and agreed to a 10-year suspended sentence. The trial court
entered the judgment on April 7, 2011, but on May 6, 2011, the State obtained a probation
revocation warrant that alleged that the defendant had not reported for probation, that his
whereabouts were unknown, and, by a later-filed amendment, that he was arrested for theft
and did not report the arrest. Following a hearing, the trial court revoked the defendant’s
probation and ordered him to serve his sentence in confinement. In his timely appeal, the
defendant claims that the trial court erred by revoking the probation and ordering him into
confinement. Because the record supports the trial court’s order, we affirm.
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 N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.
Mark Stephens. District Public Defender; and Jamie Niland, Assistant Public Defender, for
the appellant, Marcus Terrell Johnson.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
In the revocation hearing, Robert Stuart, a “loss prevention” employee of
Walmart near the Knoxville Center Shopping Mall in Knox County testified that on
November 14, 2011, he saw the defendant shop-lift some merchandise. He saw the
defendant take four knives from a shelf, remove the bar codes, and hide the knives in a diaper
bag. The diaper bag lay in a store cart which the defendant pushed. He then saw the
defendant select a brush for an electric toothbrush, hide it beneath his coat, pass the diaper
bag off to female companions, and then leave the store without paying for the merchandise.
On cross-examination, Mr. Stuart testified that none of the Walmart security tapes recorded
the defendant’s concealment of the merchandise. One of the tapes recorded him selecting
the brush head from a shelf. Mr. Stuart testified that the brush head was one of the shop-
lifted items recovered from the defendant and his companions. Mr. Stuart reiterated that he
observed the defendant select the merchandise and then conceal it. He testified that, after
exiting the store, the defendant saw his companions being detained, threw the brush heads
into a cart he was pushing, and left the cart near the cart corral.
Dani Sosa, a probation officer, testified that she was assigned to supervise the
defendant’s probation on April 7, 2011, and that the defendant failed to keep his July 2011
supervision appointment. She testified that on August 2 the defendant attempted to falsify
a drug screen, explaining that a male officer discovered a small bottle of urine hidden
beneath the defendant’s shirt. The defendant failed to report after August 10, when he tested
positive for Benzodiazapine. Ms. Sosa also testified that the defendant changed his residence
“three times that [she was] aware of.” She testified that the defendant did not report his
November arrest as required by the terms of his probation. Ms. Sosa opined that the
defendant would benefit from mental health treatment.
The trial court determined that the defendant violated his probation by
changing his address without informing his probation officer, by failing to pass two drug
screens, by failing to pay probation fees and court costs, and by committing a theft at
Walmart.
The court reviewed the defendant’s criminal history, which not only included
a number of prior convictions but also a number of probation violations. The court
concluded that multiple attempts at putting the defendant on probation had failed and that the
defendant evinced “a serious lack of potential for rehabilitation.” Accordingly, the court
ordered the defendant to serve the balance of his sentence in confinement.
On appeal, the defendant posits that, unlike other probationers’ cases wherein
confinement orders had been affirmed, he had not committed violations before the filing of
the amended revocation warrant now under review; that he fulfilled the terms of his
probation in many respects; and that the court failed to consider less extreme alternatives
such as enhanced probation. The State responds that confinement is warranted in this case
because “[t]he defendant has blatantly violated the terms of his probation, as he has done on
many occasions in the past.” The record supports the State’s position, and accordingly, we
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affirm the order of the trial court.
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. Terry 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. The revoking court may extend the period of probation
supervision for a period not to exceed two years. Id. § 40-35-308(c).
In the present case, the trial court determined that the State established by a
preponderance of the evidence multiple violations of the terms of probation, and the record
supports these determinations. Therefore, revocation of probation was unquestionably
justified.
Furthermore, the court expressed concern that the defendant’s inability in the
past to fulfill a probationary term without violating the probation, coupled with his offending
while on the probation now under review, demonstrated his lack of amenability to
rehabilitation. The record supports these determinations, and we cannot conclude that the
trial court abused its discretion by ordering the defendant to serve his sentence in
confinement.
Accordingly, the order of the criminal court is affirmed.
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JAMES CURWOOD WITT, JR., JUDGE
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