State of Tennessee v. Anthony Lee Smith ( 2020 )

09/08/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 29, 2020
STATE OF TENNESSEE v. ANTHONY LEE SMITH
Appeal from the Criminal Court for Hamilton County
Nos. 293256, 293680 Tom Greenholtz, Judge
No. E2019-02085-CCA-R3-CD
The defendant, Anthony Lee Smith, appeals the Hamilton County Criminal Court’s order
revoking his probation and ordering him to serve the 10-year sentence imposed for his theft
conviction in confinement. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and D. KELLY THOMAS, JR., JJ., joined.
John G. McDougal, Chattanooga, Tennessee, for the appellant, Anthony Lee Smith.
Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant
Attorney General; Neal Pinkston, District Attorney General; and Jason Demastus,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In July 2016, the defendant pleaded guilty to one count of theft of property
valued at $1,000 or more but less than $10,000 in case number 293256 and one count of
burglary of an automobile in case number 293680. The trial court imposed the negotiated
sentences of 10 years of supervised probation for the theft conviction and six years of
supervised probation for the burglary conviction and aligned the sentences consecutively.
As a condition of probation, the defendant was ordered to complete Mental Health Court.
On May 22, 2017, a probation violation warrant issued, alleging that the
defendant had violated the terms of his probation by garnering new charges. The defendant
conceded the violation, and the trial court revoked his probation and returned him to
supervised probation with the condition that he continue with the Mental Health Court. On
May 7, 2018, a second probation violation warrant issued, alleging that the defendant had
violated the terms of his probation by violating the rules of the Mental Health Court, and
on June 19, 2018, the trial court removed the defendant from the Mental Health Court. On
August 27, 2018, a third probation violation warrant issued, alleging that the defendant had
again garnered new charges and had failed to report those new charges to his probation
officer. On November 7, 2018, the trial court dismissed the probation revocation and
returned the defendant to supervised probation. On December 21, 2018, a fourth probation
violation warrant issued, alleging that the defendant had absconded, and an addendum to
the violation report alleged that the defendant had also garnered a new charge. On February
20, 2019, the trial court again dismissed the probation revocation and returned the
defendant to supervised probation.
On April 3, 2019, yet another a probation violation warrant issued, alleging
that the defendant had violated the terms of his probation by failing to report, failing to
respond for home visits, and failing to provide his current address and contact information.
The trial court held a revocation hearing in October 2019, which hearing is the subject of
this appeal.
Leo Franklin Stewart, a probation manager and officer with the Mental
Health Court, testified that he began supervising the defendant’s case while the defendant
was in custody on the December 2018 violation warrant. Following his release on February
20, 2019, the defendant failed to report as he had been instructed. On March 11, Mr.
Stewart visited the defendant’s home, but the defendant was not there. Mr. Stewart left his
contact information and instructions for the defendant to report with the defendant’s
“significant other” at the residence. On March 13, Mr. Stewart returned to the defendant’s
home and again left his contact information and instructions for the defendant to report.
On March 18, Mr. Stewart mailed the defendant a letter to the address in the defendant’s
record, instructing the defendant to report on March 22. That same day, Mr. Stewart
“conducted a third home visit,” but, again, the defendant was not home. The defendant
also failed to report as instructed on March 22. Mr. Stewart filed a violation report on
March 29 based on the defendant’s failure to report. Mr. Stewart noted that the defendant’s
probation had twice been revoked before Mr. Stewart began supervising him, and at some
point, the defendant was removed from Mental Health Court.
During cross-examination, Mr. Stewart stated that he did not receive any
messages from the defendant on his office or cellular telephone after he left his contact
information at the defendant’s residence. During Mr. Stewart’s March 13 visit to the
defendant’s house, the defendant’s girlfriend told him that she had passed on Mr. Stewart’s
message to the defendant. During the March 18 visit, she told Mr. Stewart that the
defendant “was off hanging with his friends” and that she “last saw him the day prior.” On
March 18, Mr. Stewart went to the defendant’s house at 1:30 p.m. and again sometime later
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that evening. Mr. Stewart acknowledged that the defendant had not incurred any new
charges in this instance and that his violation was only for failing to report.
Upon questioning by the trial court, Mr. Stewart stated that the contact
information he gave to the defendant’s girlfriend included his cellular and office telephone
numbers. He clarified that he could receive messages on his cellular telephone but that his
office telephone was temporarily unable to receive voice messages. He stated that the
receptionist at his office could take a message for him if he was out, but he acknowledged
that his office telephone would not automatically transfer to the reception telephone. Mr.
Stewart stated that, although he could not receive messages on his office telephone, he
would regularly review the numbers on the call log when he returned to his office.
The defendant testified that he was at work each time that Mr. Stewart came
by his house and that he called Mr. Stewart, leaving a message on his answering machine.
He denied that he ever received a letter from Mr. Stewart. He acknowledged that he did
not go to the probation office but stated that he had been working and was “trying to make
my ends meet.” He also stated that his prior probation officer would conduct his visits at
the defendant’s workplace, which allowed him to keep working. He acknowledged that he
“made a mistake” and apologized for his failure but reiterated that he “just kept on
working,” trying to “make my money where I can” and “stay in the house that I’m living
in.” He stated that he was behind on rent and was trying to work enough to pay his bills.
He maintained that he attempted to call Mr. Stewart at the telephone number provided on
the contact card. The defendant stated that, if the court returned him to supervised
probation, he would report as instructed.
During cross-examination, the defendant acknowledged that he had not been
to the probation office since his case was assigned to Mr. Stewart. He asserted that he did
not know that Mr. Stewart had been assigned as his probation supervisor despite Mr.
Stewart’s leaving his contact information for the defendant.
At the close of the hearing, the trial court took the matter under advisement.
In its November 4, 2019 written order, the trial court found that the defendant violated the
terms of his probation by failing to report to his probation officer. Upon revoking the
defendant’s probation, the trial court ordered the defendant to serve the balance of his 10-
year sentence in case number 293256 in confinement and to serve the consecutive six-year
sentence in case number 293680 on supervised probation.
In this timely appeal, the defendant argues that the trial court erred by
revoking his probation and ordering him to execute his 10-year sentence. The State
contends that the trial court did not err.
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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 trial judge may
order the original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension, and that it be executed accordingly.” T.C.A. § 40-35-310(a).
In other words, “[t]he trial judge retains the discretionary authority to order the defendant
to serve the original sentence.” Reams, 265 S.W.3d at 430 (citing State v. Duke, 902
S.W.2d 424, 427 (Tenn. Crim. App. 1995)).
Here, the record supports the trial court’s revocation of the defendant’s
probation. Although the defendant contends that he failed to report to his probation
supervisor because he was working, he acknowledged that he knew that he was required to
report and that he failed to do so. Mr. Stewart testified that he made multiple and varied
attempts to contact the defendant to no avail. This evidence is sufficient to establish the
defendant’s probation violation by a preponderance of the evidence. Furthermore, the law
is well-settled that the trial court does not abuse its discretion by choosing incarceration
from among the options available after finding that the defendant has violated the terms of
his probation.
Accordingly, the judgment of the trial court is affirmed.
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JAMES CURWOOD WITT, JR., JUDGE
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