State of Tennessee v. Jeremy W. Alexander ( 2021 )

08/06/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 1, 2021
STATE OF TENNESSEE v. JEREMY W. ALEXANDER
Appeal from the Circuit Court for Henderson County
No. 18-222-3 Kyle C. Atkins, Judge
No. W2020-00953-CCA-R3-CD
The Defendant, Jeremy W. Alexander, appeals as of right from the Henderson County
Circuit Court’s revocation of his probation and reinstatement of his effective twenty-seven-
year sentence in the Department of Correction for his three guilty-pleaded convictions for
sale of 0.5 grams or more of methamphetamine. On appeal, the Defendant contends that
the trial court abused its discretion by fully revoking his sentence and that an alternative to
full incarceration should have been imposed to allow him to seek treatment for his
methamphetamine addiction. Following our review, we affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.
Samuel W. Hinson, Lexington, Tennessee, for the appellant, Jeremy W. Alexander.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Jody S. Pickens, District Attorney General; and Chadwick R.
Wood, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On October 1, 2018, a Henderson County grand jury indicted the Defendant for
three counts of sale of 0.5 grams or more of methamphetamine and, as an alternate theory
of the same crime, for three counts of delivery of 0.5 grams or more of methamphetamine
based upon three separate transactions occurring on September 23, September 26, and
September 30 of 2016. See Tenn. Code Ann. § 39-17-434. Following his arrest, the
Defendant was released after he posted a $25,000 bond. Thereafter, on April 18, 2019, the
Defendant entered an open guilty plea to all six counts, with the agreement that the
respective sale and delivery counts would merge into one Class B felony conviction for
each of the three transactions. See Tenn. Code Ann. § 39-17-417 (providing classification
for the offense).
A sentencing hearing was held on August 15, 2019. At the hearing, the trial court
sentenced the Defendant to nine years as a Range I, standard offender for each of his three
Class B felonies. The trial court ordered that the sentences were to be served consecutively
to one another, resulting in an effective twenty-seven-year sentence. The trial court further
ordered the Defendant to serve 120 days before being placed on probation to be supervised
by community corrections.1 The Defendant was released from the Henderson County Jail
“on or about” October 16, 2019.
Thereafter, in November 2019, Madison County Community Corrections
(“MCCC”) Officer Blake Mayfield filed a violation affidavit and warrant against the
Defendant. In the affidavit, it was alleged that the Defendant violated the terms of his
sentence in the following ways: (1) failed to obey the law by committing the offense of
falsifying a drug screen in the MCCC office on November 20, 2019, for which the
Defendant was arrested in the office that same day; (2) failure to remain drug free due to a
positive drug screen on November 20, 2019, including an admission from the Defendant
on that occasion that he had used methamphetamine; and (3) failure to complete alcohol
and drug assessment. The trial court signed the warrant on November 25, 2019.
At the outset of the revocation hearing that took place on June 12, 2020, defense
counsel noted that the Defendant was admitting to the violations about a new charge and
drug use on November 20, 2019, but that the Defendant was not admitting to the underlying
facts supporting the charge of falsifying a drug screen. The Defendant then called his
mother, Patsy Alexander, to testify.
Ms. Alexander acknowledged that her son suffered from a “long history” of
methamphetamine addiction. Ms. Alexander indicated that the Defendant had been
working at a furniture store following his release on probation in this case and that,
typically, he stayed employed when not in jail. She further indicated that the Defendant
had graduated “with honors” from Nashville Auto Diesel College.
According to Ms. Alexander, about ten years ago, the Defendant tried inpatient drug
rehabilitation treatment for twenty-eight days, but he was unable to stay off drugs
thereafter. Ms. Alexander believed the Defendant needed more intensive treatment, and
1
Neither a transcript of the guilty plea hearing nor the sentencing hearing is included in the record on
appeal.
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she wanted him to get some help. Though Ms. Alexander acknowledged that the Defendant
had been in jail multiple times, she submitted that his being held in jail had not helped him
with his drug problem. She stated her belief that the Defendant wanted to get better, that
he could do so with the proper treatment for his drug addiction, and that he was “a good
person” when not on drugs.
On cross-examination, Ms. Alexander acknowledged that the Defendant had sold
drugs before, but she asserted that he deserved “a chance” to change. She was aware of
the Defendant’s new charge for falsifying a drug screen and agreed that the Defendant’s
new charge showed a lack of acceptance and responsibility for his drug use.
The State then called the Defendant’s supervising officer. Mr. Mayfield testified
about the Defendant’s supervision history, which lasted for only about a month starting
from the Defendant’s release from jail in October 2019 until his arrest at the MCCC office
in November 2019. According to Mr. Mayfield, the Defendant’s supervision was “rocky.”
Mr. Mayfield characterized the Defendant as respectful, but he was concerned because the
Defendant’s behavior was suspicious. Mr. Mayfield explained that the Defendant would
call to reschedule appointments on the day of the appointment, which was “a red flag” to
Officer Mayfield.
Officer Mayfield said that he was on “high alert” on November 20, 2019, the day of
the Defendant’s appointment, because it had already been rescheduled. They were
scheduled to complete the Defendant’s alcohol and drug assessment that day, but when the
Defendant arrived at the office, he was told he first needed to take a drug screen. Officer
Mayfield explained the drug screen procedure, stating that it involved having the individual
go into a mirrored bathroom and that the officer’s job was to observe to make sure that the
screen was legitimate. According to Officer Mayfield, during the procedure, he saw that
the Defendant was wearing a device called a “whizzinator,” which was a fake penis that
contained someone else’s urine. Officer Mayfield told the Defendant to remove the device,
and after the Defendant complied, they proceeded with a legitimate drug screen. The drug
screen was positive for methamphetamine, and Officer Mayfield indicated that the
Defendant admitted that he had used. The Defendant was thereafter arrested at the MCCC
office for falsifying a drug screen.
In making a concluding argument, defense counsel noted that though the Defendant
had sold drugs in the past, the Defendant’s offenses were non-violent in nature. Defense
counsel asserted that drug offenders did not receive adequate help while in jail, that jail
was not an effective deterrent to others in such circumstances, and that the Defendant did
not belong in jail for an additional twenty-five years. Defense counsel requested for the
trial court to impose partial revocation of the Defendant’s sentence and for the trial court
to order the Defendant to enter a rehabilitation program upon his release to deal with his
methamphetamine addiction.
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The State argued for full revocation, noting that the Defendant had sold over ten
grams of methamphetamine on these three occasions. The State further noted that the
Defendant had a prior felony conviction for drugs and that the Defendant tested positive
for methamphetamine use on his sentencing date, which formed the basis for the “shock
incarceration” initially ordered by the trial court.
Following the conclusion of the proof and arguments, the trial court fully revoked
the Defendant’s probation, finding that the Defendant was “in violation of his probation in
a substantial way, based upon both his admission and a preponderance of the evidence.”
The trial court then noted additional information regarding the Defendant’s supervision
history, indicating that originally in November 2018, before the Defendant entered his open
guilty plea, the Defendant was allowed out on bond and given a curfew and ordered to
report for drug testing. According to the trial court, when the Defendant failed to report
for testing as ordered, his bond was revoked. The trial court recalled that the Defendant
was later placed on bond again, this time including the additional requirement that he wear
an ankle monitor. The trial court believed that the Defendant also “didn’t make that bond.”
The trial court also noted the Defendant’s positive drug screen at the sentencing hearing,
which was almost four months after his guilty plea was accepted and that despite his failed
drug screen, the Defendant was given another chance on release. The trial court
commented that there existed “a connotation to what [the Defendant was] charged with
that makes it a violent offense because of what it does to the rest of society and people who
are selling this poison in [the] community.”
Accordingly, the Defendant was ordered to serve the balance of his twenty-seven-
year sentence in confinement. The Defendant filed a timely notice of appeal.
ANALYSIS
The Defendant contends that the trial court abused its discretion by fully revoking
his twenty-seven-year sentence for non-violent drug crimes and that the trial court should
have imposed some alternative to full revocation that included treatment at a substance
abuse rehabilitation program to treat his methamphetamine addiction. The State responds
that the trial court properly exercised its discretion by ordering the Defendant to serve the
balance of his sentence in confinement.
A trial court may revoke a sentence of probation upon finding by a preponderance
of the evidence that the defendant has violated the conditions of his release. Tenn. Code
Ann. § 40-35-311(e). If the trial court revokes the probation, it has the right to “extend the
defendant’s period of probation supervision for any period not in excess of two (2) years,”
“commence the execution of the judgment as originally entered,” or “[r]esentence the
defendant for the remainder of the unexpired term to any community-based alternative to
incarceration.” Tenn. Code Ann. §§ 40-35-308(c), -35-311(e). Furthermore, the decision
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to revoke probation is in the sound discretion of the trial judge and will not be overturned
absent an abuse of the discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State
v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005). To find an abuse of discretion
in a probation revocation case, “it must be established that the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the
conditions of probation has occurred.” Harkins, 811 S.W.2d at 82 (citing State v. Grear,
568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App.
1980)); see also State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim. App. 2011).
We note that following the Defendant’s release from the jail, he was placed on
probation to be supervised by community corrections. Though the Defendant was never
transferred to Community Corrections Program as an eligible offender as defined in
Tennessee Code Annotated 40-36-106(a), the Defendant was being supervised by a
community corrections officer at the time of the violation. Accordingly, we feel
constrained to observe that the same principles that apply in the revocation of probation
also apply in the revocation of a community corrections sentence. Harkins, 811 S.W.2d at
83; see also Tenn. Code Ann. § 40-36-106(e)(4).
Here, Officer Mayfield testified that the Defendant admitted to methamphetamine
use following his positive drug screen at the MCCC office on November 20, 2019.
Moreover, the Defendant, through his attorney, admitted to the drug use resulting in the
positive drug screen on November 20, 2019, though the Defendant declined to admit to the
underlying facts supporting the new charge of falsifying a drug screen. As this court has
recognized, “[a d]efendant’s admission that he violated the terms of his probation, alone,
constitutes substantial evidence to support the revocation of probation.” State v. Ross
Pruitt, No. E2015-01494-CCA-R3-CD, 2016 WL 3342356, at *4 (Tenn. Crim. App. June
8, 2016) (citing State v. Christopher Nathaniel Richardson, No. M2006-01060-CCA-R3-
CD, 2007 WL 776876, at *4 (Tenn. Crim. App. Mar. 15, 2007)); see State v. Johnson, 15
S.W.3d 515, 518 (Tenn. Crim. App. 1999).
In order to establish a violation of a suspended sentence based on the commission
of a new offense, the State must offer proof by a preponderance of the evidence showing
that a defendant violated the law. See State v. Catherin Vaughn, No. M2009-01166-CCA-
R3-CD, 2010 WL 2432008, at *3 (Tenn. Crim. App. June 14, 2010) (noting that proof of
a conviction is not necessary). The State “must present sufficient facts at the revocation
hearing to enable the trial court to ‘make a conscientious and intelligent judgment as to
whether the conduct in question violated the law.’” State v. Jason L. Holley, No. M2003-
01429-CCA-R3-CD, 2005 WL 2874659, at *4 (Tenn. Crim. App. Oct. 25, 2005) (quoting
Harkins, 811 S.W.2d at 83 n.3).
Officer Mayfield’s testimony regarding the Defendant’s use of a “whizzinator,” a
device containing someone else’s urine, in the MCCC office was sufficient to establish that
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the Defendant intended to falsify a drug screen. See Tenn. Code Ann. § 39-17-437. Upon
proper screening, the Defendant tested positive for methamphetamine. This court has
previously concluded that an officer’s testimony about the facts surrounding the arrest used
as the basis for the violation “constituted substantial evidence” and was “sufficient to
support the trial court’s [revocation of a suspended sentence].” State v. Jeremy Bo Eaker,
No. M2013-01639-CCA-R3-CD, 2014 WL 546348, at *5 (Tenn. Crim. App. Feb. 11,
2014) (quoting State v. Chris Allen Dodson, M2005-01776-CCA-R3-CD, 2006 WL
1097497, at *3 (Tenn. Crim. App. Mar. 31, 2006)) (concluding that officer’s testimony
“was straight-forward: upon executing a traffic stop, he found [the defendant] in possession
of drug paraphernalia and a white powder, which he stated, based upon his experience as a
law enforcement officer and as a drug task force agent, appeared to be
methamphetamine[,]” and provided a sufficient basis for revoking probation).
The Defendant’s main complaint appears to be that the trial court acted too harshly
given the length of the Defendant’s twenty-seven-year sentence that was revoked in full.
The effective length of the Defendant’s sentence is not before us for review. Moreover,
this court has repeatedly held that “an accused, already on [a suspended sentence], is not
entitled to a second grant of probation or another form of alternative sentencing.” State v.
Dannie Brumfield, No. M2015-01940-CCA-R3-CD, 2016 WL 4251178, at *3 (Tenn.
Crim. App. Aug. 10, 2016) (quoting State v. Jeffrey A. Warfield, No. 01C01-9711-CC-
00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999)); see also State v. Timothy
A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim. App.
Feb. 11, 2002). The trial court noted that it had already revoked the Defendant’s bond on
one occasion due to drug use and that the Defendant had subsequently tested positive at
the sentencing hearing, for which he received a period of shock incarceration. The
Defendant’s probationary period with Officer Mayfield lasted only a month before the
Defendant once more tested positive for methamphetamine. Officer Mayfield stated that
the Defendant had engaged in suspicious behavior by calling to reschedule appointments
on the day of the appointment. We cannot say that the trial court abused its discretion by
concluding that the Defendant’s multiple violations of the terms of his release called for
the service of his sentence in a correctional facility rather than in the community.
The trial court was within its discretion to determine that the Defendant violated the
conditions of his probation by a preponderance of the evidence. Thereafter, it was within
the trial court’s authority to order the Defendant to serve the balance of his previously
imposed twenty-seven-year sentence in confinement upon revoking the Defendant’s
probation. See Tenn. Code Ann. §§ 40-35-310, -311(e); see also State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991).
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CONCLUSION
Upon consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.
______________________________
D. KELLY THOMAS, JR., JUDGE
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