State of Tennessee v. Robert N. Rogers ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 23, 2001
STATE OF TENNESSEE v. ROBERT N. ROGERS
Appeal from the Circuit Court for Blount County
No. C-10499, 10500 D. Kelly Thomas, Jr., Judge
No. E2000-00866-CCA-R3-CD
March 19, 2001
The defendant contends that the trial court erroneously ordered service of his original sentences upon
the revocation of his probation. We affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JAMES
CURWOOD WITT, JR., J., joined.
Julie A. Rice, Knoxville, Tennessee (on appeal), Raymond Mack Garner, District Public Defender,
and Shawn G. Graham, Assistant Public Defender (at trial), for the appellant, Robert N. Rogers.
Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; Michael
L. Flynn, District Attorney General; and John Anderson Bobo, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
The defendant, Robert N. Rogers, appeals as of right from the Blount County Circuit Court’s
revocation of his probation. The defendant pled guilty to possession of morphine with intent to
deliver or sell, a Class B felony, and possession of cocaine with intent to deliver or sell, a Class B
felony. The trial court sentenced the defendant as a Range I, standard offender and imposed the
agreed, concurrent eight-year sentences. The court ordered the defendant to serve one hundred
twenty days in the Blount County jail, three years on supervised probation, and seven years on
unsupervised probation. The defendant received eighty hours of community service and a two-
thousand-dollar fine for each conviction. He contends that the trial court erred in ordering the
service of the original sentences upon revoking his probation. We affirm the judgment of the trial
court revoking probation and ordering service of the original sentences.
On February 15, 2000, a probation violation warrant issued alleging that the defendant was
arrested on February 5, 2000, for theft of over ten thousand dollars and driving on a revoked license
and that he failed to report the arrest to his probation officer. On March 28, 2000, the trial court
ordered the warrant to be amended to include the following violations: The defendant tested positive
for cocaine and opiates in October 1999, he failed to pay any costs or fines, and he performed no
community service work. At the revocation hearing, Mike Lane of the Probation Department
testified that the defendant’s probation officer was on extended sick leave but that the defendant’s
file reflected the following: On February 5, 2000, the defendant was arrested for theft of over ten
thousand dollars and driving on a revoked license. On February 11, 2000, the defendant was arrested
for shoplifting. The defendant did not report either of these arrests to his probation officer. Also,
the defendant failed to report to his probation officer in December 1999 but had reported every other
month, including January 2000.
Mr. Lane testified as follows: The defendant tested positive for cocaine and opiates in
October 1999. At that time, he was sent for a drug and alcohol evaluation by the CAPP Program.
The evaluation revealed that he had a serious drug abuse problem, and in-patient treatment was
recommended. The defendant was referred to Center Point and evaluated by John Mott, who also
recommended in-patient treatment. The defendant instead chose to participate in a methadone clinic.
Although the defendant had never paid any court costs or fines, the defendant’s file contained a
payment agreement signed on January 12, 2000, which required the defendant to pay forty dollars
a month beginning on February 5, 2000. The defendant had not performed any community service,
and the file contained no agreement regarding the defendant’s community service hours.
At the hearing, the defendant admitted that while on probation, he used cocaine three or four
times per month until he began attending the methadone clinic following his positive drug screen
in October 1999. He said that he was disabled due to back problems and that before his
incarceration, he was working part-time instructing others on how to seal swimming pools, a job he
had held for ten years. He stated that John Mott had mentioned the methadone clinic and that the
defendant thought that it would be the best option because of his job. He said that he went to the
clinic every day for one to two hours and that, in addition to methadone, he received counseling and
attended meetings there. He stated that while in this program, he was tested for drug use once or
twice monthly and that all the tests were negative.
The defendant testified that he did not report his arrests to his probation officer because
within a couple of days of his release from his first arrest in Knox County, he was arrested in Blount
County. He said that he agreed to pay forty dollars per month toward his costs and fines beginning
on February 5, 2000, but that he could not make that payment because he was arrested on that day.
He stated that if he were released, he could catch up on the missed payments. He said that he had
not performed any community service work because his probation officer told him that there was no
hurry and that she would have to find something that involved light work because of his disability.
He said that he did not remember why he had failed to report to his probation officer in December
1999. The trial court revoked his probation and ordered service of the original sentence.
The defendant contends that the trial court should have imposed an alternative sentence rather
than incarceration after it revoked his probation. Although he maintains that the evidence presented
at the hearing did not support the trial court’s finding that he failed to pay fines and costs, he
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concedes that he violated his probation by failing a drug test, getting arrested, failing to report his
arrests, and failing to report to his probation officer in December 1999. He contends that in ordering
service of his original sentence, the trial court ignored several positive factors such as his success
in the methadone program, the fact that he maintained part-time employment, and the absence of any
evidence that his subsequent arrests involved drugs. He argues that the trial court has violated the
legislature’s mandate to keep offenders with rehabilitative potential out of Tennessee prisons. The
state contends that the trial court was not required to reconsider sentencing principles before ordering
service of the original sentence.
The decision to revoke probation is within the discretion of the trial court. State v. Grear,
568 S.W.2d 285, 286 (Tenn. 1978). Upon revoking probation, the trial court has the discretion to
order the original sentence to be served. See Tenn. Code Ann. § 40-35-310, -311(d). An abuse of
discretion may be found only if the record contains no substantial evidence to support the conclusion
of the trial court. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Once the trial court
determines that the defendant has violated probation, “it is not required at this stage to reconsider
the principles of sentencing” before ordering service of the original sentence. State v. Troy
McLemore, No. 03C01-9709-CC-00406, Blount County, slip op. 4-5 (Tenn. Crim. App. July 28,
1998). The defendant has failed to demonstrate that the trial court abused its discretion by ordering
him to serve his original sentence. The defendant’s inability to abide by the terms of his probation,
including his repeated drug use, supports the trial court’s decision.
Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court
revoking probation and ordering service of the original sentence.
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JOSEPH M. TIPTON, JUDGE
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