IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 24, 2012
STATE OF TENNESSEE v. PAMELA J. BOOKER
Appeal from the Criminal Court for Sullivan County
No. S43450, S43929, S43930 Robert H. Montgomery, Jr., Judge
No. E2012-00809-CCA-R3-CD - Filed December 19, 2012
The Defendant, Pamela J. Booker, appeals the Sullivan County Criminal Court’s order
revoking her probation for her three convictions for violating a habitual traffic offender order
and ordering her to serve her effective fifteen-year sentence. On appeal, she contends that
the court erred in ordering her to serve the sentence. We affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and D. K ELLY T HOMAS, J R., JJ., joined.
Stephen M. Wallace, District Public Defender; and William Andrew Kennedy, Assistant
Public Defender, for the appellant, Pamela J. Booker.
Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Barry P. Staubus, District Attorney General; and Emily Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
On May 24, 2001, the Defendant pleaded guilty to three counts of violating a habitual
traffic offender order. The July 10, 2001 judgments reflect that the Defendant, a Range III
offender, received a five-year sentence on probation for each offense, five years of which
was intensive probation, to be served consecutively to each other and to a ten-year sentence
in confinement for other convictions. The November 15, 2011 revocation warrant alleged
that the Defendant violated her probation by failing to report to her probation officer from
October 2008 to March 2009 and that she tested positive for cocaine on August 29, 2008.
The Defendant admitted that she violated her probation but sought dispensation to
enroll in a drug rehabilitation program rather than serving her sentence in the Department of
Correction. She testified that she wanted to enroll in the Hannah House in Abingdon,
Virginia, where she would stay for at least six months. She agreed that the program was a
halfway house and would assist her in finding a job. She agreed that the Hannah House told
her attorney space was available and that she had someone who would help pay her fees for
the program. She said that if she could not go to the Hannah House, she would like to go to
the Hay House. She agreed that she wanted to straighten out her life.
The Defendant testified that her convictions in the cases subject to revocation were
part of a twenty-five-year plea agreement disposing of five counts of violating a habitual
traffic offender order. She said she served part of the ten years’ incarceration in the
Department of Correction, was released on parole, violated parole, and served the remainder
of the sentence. She said that she had six months remaining and that she served six months
but that she had not yet received paperwork certifying that she had completed the sentence.
She said, “They’re in the process of fixing it.” She agreed that she had a fifteen-year
sentence remaining.
On cross-examination, the Defendant testified that she had never participated in a
residential drug rehabilitation program and had never been to the Hay House. She agreed she
had a pending felony drug charge that involved an offense within a school zone. She
acknowledged that she admitted at her parole hearing that she failed a drug test. She said
cocaine was the only drug with which she had an issue.
The trial court questioned the Defendant from a document prepared by the
Defendant’s probation officer that does not appear in the record. The Defendant
acknowledged that she was released from prison on December 12, 2005, tested positive for
cocaine on August 29, 2008, and stopped reporting after the drug test. She agreed that she
had a previous parole revocation on April 11, 1991, for a positive drug test. She “guessed”
but could not remember if her parole was revoked for technical violations on July 23, 1993,
and September 12, 1996. She “guessed” that her probation was revoked on December 17,
2002, for receiving new charges and absconding. She said she was unsure of the dates. She
acknowledged the present case was not her first violation but said it would be her last.
The trial court noted the Defendant’s “long history of either violations of probation
or violations of parole.” The court stated:
I don’t see any benefit to placing her back on probation. I really
don’t see any benefit to giving her split confinement. I mean, in
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my opinion, based upon her very, very poor history of violating
terms and conditions of probation and/or parole, that there’s
really no reason to place her back on [probation].
The court ordered the Defendant to serve her sentences in the Department of Correction.
This appeal followed.
The Defendant contends that the trial court abused its discretion by revoking her
probation and ordering her to serve her sentences. The State counters that the trial court
properly revoked the Defendant’s probation and ordered her to serve the sentences. We
agree with the State.
A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). “In probation revocation hearings, the credibility of witnesses is to be determined
by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If a
trial court revokes a defendant’s probation, its options include ordering confinement,
ordering the sentence into execution as originally entered, returning the defendant to
probation on modified conditions as appropriate, or extending the defendant’s period of
probation by up to two years. T.C.A. §§ 40-35-308(a), (c), -310; see State v. Hunter, 1
S.W.3d 643, 648 (Tenn. 1999). The judgment of the trial court in a revocation proceeding
will not be disturbed on appeal unless there has been an abuse of discretion. See State v.
Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). In order for this court to find
an abuse of discretion, “there must be no substantial evidence to support the conclusion of
the trial court that a violation of the conditions of probation has occurred.” State v. Shaffer,
45 S.W.3d 553, 554 (Tenn. 2001).
The revocation warrant alleged that the Defendant failed to report to her probation
officer for six months and had a positive drug test. The Defendant told the judge that she
stopped reporting after her positive drug screen. The record reflects, however, that the
Defendant admitted her positive drug test and stated that she had a problem with cocaine.
Her admission of drug use and the positive drug test provided sufficient proof to establish
by a preponderance of the evidence that she violated a term of probation.
Regarding the trial court’s decision to order the Defendant to serve her sentences, we
note that the evidence showed that the Defendant, a Range III offender, had been afforded
previous probation sentences and had been paroled from incarcerative sentences, but she had
several previous violations and revocations. Although she testified that she would like to
participate in a drug rehabilitation program, her prior history of violations does not support
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a further reprieve from incarceration. The trial court did not abuse its discretion in ordering
her to serve her sentences.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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