State of Tennessee v. John Wesley Cantrell, Jr. ( 2018 )

05/24/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 13, 2017
STATE OF TENNESSEE v. JOHN WESLEY CANTRELL, JR.
Appeal from the Criminal Court for Davidson County
No. 2012-A-660 Cheryl A. Blackburn, Judge
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No. M2017-00842-CCA-R3-CD
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The Appellant, John Wesley Cantrell, Jr., pled guilty in the Davidson County Criminal
Court to possessing one-half gram or more of cocaine with intent to sell and selling less
than one-half gram of cocaine and received ten- and three-year sentences, respectively, to
be served on supervised probation. Subsequently, the trial court revoked his probation.
On appeal, the Appellant contends that the trial court erred by ordering that he serve his
ten-year sentence in confinement. Based upon the record and the parties’ briefs, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.
Emma Rae Tennent (on appeal) and Julia Bigsby (at hearing), Nashville, Tennessee, for
the appellant, John Wesley Cantrell, Jr.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; Glenn R. Funk, District Attorney General; and Leandra Justus Varney, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In March 2012, the Davidson County Grand Jury filed a nine-count indictment,
charging the Appellant with various drug offenses and tampering with evidence. On June
21, 2012, the Appellant pled guilty to one count of possessing one-half gram or more of
cocaine with intent to sell, a Class B felony, and one count of selling less than one-half
gram of cocaine, a Class C felony, and the State dismissed the remaining charges.
Pursuant to the plea agreement, the Appellant received a ten-year sentence for possessing
cocaine with intent to sell and a three-year sentence for selling cocaine. The Appellant
was to serve the sentences concurrently on supervised probation.
The Appellant violated the terms of his probation three times between July 2012
and August 2016. For each violation, the trial court reinstated the Appellant’s probation.
On March 3, 2017, the Appellant’s probation supervisor signed an affidavit for
violation of probation, alleging that the Appellant violated his probation by being charged
with gambling and numerous violations of the liquor laws, including seven counts of
unlawful sale of alcohol and four counts of unauthorized storage of alcohol for sale. At
the Appellant’s April 5, 2017 revocation hearing, he acknowledged that he “picked up”
the new charges at “the Mission” and that he pled guilty to “a few” of the charges.
Defense counsel instructed the Appellant to tell the trial court “what was going on with
the alcohol and the poker and being at the Mission,” and the Appellant stated as follows:
Unfortunately a lot of guys that I graduated high school
[their] lives has turned bad, and they live at the Mission.
And, you know, we’ve been good since high school, so I go
down there and we play cards. And, you know, of course,
they like to drink liquor. I’m not a big liquor drinker, but
they like to drink liquor. So some guys from the Mission had
been stealing from the big liquor store Frugal MacDoogal, so
they won’t let the Mission people walk in and buy. So they
asked me would I go get liquor -- could they make a list and,
you know, I go get liquor. And then they don’t have to get
someone to go to the liquor store and all that. So, of course,
they’re my buddies, and I agreed to it. And I’m wrong for
that, but I agreed to it because they’re my buddies.
....
They would pay me up front, and I would go pay for the
liquor. It would just be in my truck, and they would get it as
they needed it, as they wanted it.
The police were watching the Appellant, and he sold some alcohol to an undercover
police officer. The Appellant also played spades. He said that “we don’t bet any money
and stuff like that,” but he was charged with gambling. The Appellant pled guilty to
misdemeanors and served ten days in confinement. He acknowledged that he violated his
probation.
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The Appellant testified that if the trial court reinstated his probation, he would live
with his sister and stay away from the Mission. He acknowledged that every time he
went to the Mission, he got into trouble. He said he had a truck, a driver’s license, and a
job working for Trojan Labor and asked that the trial court place him back on probation
because “I’m a good man” and “I really mean well.” He advised the court that “I’ll do
my best to finish this probation without violating again.” At that point, the following
colloquy occurred:
THE COURT: . . . . [A] police officer testified last
year on your last series of charges that he had stopped you,
been watching you, you were staying with your car down
there, all that. My recollection is I told you to stay away from
the Mission. But, I mean, why are you surprised that they
caught you? Mr. Cantrell, you’ve been down there doing
your business for [some time]. I mean, like I said, the police
officer -- they know you, they know your car. Why are you
surprised that they caught you?
THE WITNESS: I’m not surprised.
THE COURT: You’re not surprised. I didn’t think
you were.
THE WITNESS: No, ma’am.
The trial court found that the Appellant violated his probation. The court noted
that this was the Appellant’s fourth violation and stated that it had “bent over backwards”
for the Appellant and that “I can’t do it anymore.” The trial court ordered that the
Appellant serve his ten-year sentence in the Tennessee Department of Correction with
credit for time served in jail.1
II. Analysis
On appeal, the Appellant acknowledges that he violated his probation but argues
that the trial court “did not exercise conscientious judgment” when it ordered that he
serve his ten-year sentence in confinement and that the court should have placed him
back on probation or ordered split confinement. We conclude that the trial court did not
err.
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The Appellant’s three-year sentence had expired.
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Upon finding by a preponderance of the evidence that the appellant has violated
the terms of his probation, a trial court is authorized to order an appellant to serve the
balance of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310, -
311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests in
the sound discretion of the trial court and will not be overturned by this court absent an
abuse of that discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995);
see State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013) (concluding that abuse of
discretion with a presumption of reasonableness is the appropriate standard of appellate
review for all sentencing decisions). “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 Appellant acknowledges that he violated his probation. Therefore, the trial
court did not abuse its discretion by revoking his probation. Moreover, this court has
repeatedly cautioned that “an accused, already on probation, is not entitled to a second
grant of probation or another form of alternative sentencing.” State v. Jeffrey A.
Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. at
Nashville, Feb. 10, 1999); see State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-
CD, 2002 WL 242351, at *2 (Tenn. Crim. App. at Nashville, Feb. 11, 2002). This is the
Appellant’s fourth probation violation, and the trial court has been more than patient with
him. Thus, we have no hesitation in concluding that the trial court did not err by ordering
that he serve his ten-year sentence in confinement.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court
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NORMA MCGEE OGLE, JUDGE
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