IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1999 SESSION FILED
December 20, 1999
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
Appellate Court Clerk
)C.C.A. NO. W1999-01906-CCA-R3-CD
Appellee, )
) MADISON COUNTY
VS. )
) HON. FRANKLIN MURCHISON,
LEE BELL, JR., ) JUDGE
)
Appellant. ) (Revocation of Community
Corrections)
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE GOOGE PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
VANESSA D. KING PATRICIA C. KUSSMANN
Asst. Public Defender Asst. Attorney General
227 West Baltimore St. Cordell Hull Bldg., 2nd Fl.
Jackson, TN 38301 425 Fifth Ave., North
Nashville, TN 37243-0493
C. MICHAEL ROBBINS
46 North Third St. JERRY WOODALL
Suite 719 District Attorney General
Memphis, TN 38103
(On Appeal) DONALD H. ALLEN
Asst. District Attorney General
Lowell Thomas State Office Bldg.
Jackson, TN 38301
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant pled guilty to three counts of theft of property under
five hundred dollars ($500), two counts of forgery, two counts of criminal impersonation,
one count of aggravated criminal trespass, and was found guilty by a jury of one count
of theft of property over one thousand dollars ($1000). The defendant received an
effective sentence of eight years with eleven months, twenty-nine days to be served in
confinement and seven years and one day to be served in a community corrections
program. A petition was subsequently filed requesting that the trial court revoke the
defendant’s alternative sentence. After an evidentiary hearing, the trial court removed
the defendant from the community corrections program and ordered that the defendant
serve the remainder of his sentence in confinement. The defendant now appeals the trial
court’s revocation of his sentence in the community corrections program. After a review
of the record and applicable law, we find no merit to the defendant’s contentions and thus
affirm the judgment of the court below.
The defendant first contends that the trial court’s order revoking his
community corrections sentence is void “as it is grounded on an illegal and void arrest
warrant.” Specifically, the defendant contends that the information provided by the affiant
which was used to justify the defendant’s arrest was unsworn. As such, the defendant
argues, the warrant is void ab initio and any proceedings based on the warrant are void
as well. This issue was not litigated at the trial level. In addition, the arrest warrant was
signed by the defendant’s community corrections officer under the section titled “Affidavit”
and the trial judge issued the warrant thereon. Any issue regarding a defect in the arrest
warrant has been waived and cannot be considered on appeal. See State v. Lunati, 665
S.W.2d 739, 749 (Tenn. Crim. App. 1983).
The defendant next contends that the trial court abused its discretion in
revoking his community corrections sentence and ordering that he serve the remainder
in confinement. The trial court has the discretion to revoke a community corrections
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sentence upon a finding that the defendant has violated the conditions of his behavioral
contract. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). However, before a
sentence may be revoked, the record must contain sufficient evidence to permit the trial
court to make an intelligent and conscientious decision. Id. This Court will not disturb
the trial court’s decision absent a finding that the trial court abused its discretion. Id. In
order to find that the trial court abused its discretion, this Court must find that the record
contains no substantial evidence to support the trial court’s conclusion that the defendant
violated the terms of the community corrections program. Id.
At the revocation hearing, the defendant’s community corrections officer,
Clarence Fitzhugh, testified that although the defendant did sign up for the program and
signed the behavioral contract, the defendant failed to report to anyone in the program
as is required. In addition, the defendant failed to pay supervision fees, court costs or
fines. In his defense, the defendant testified that he tried to report to the probation office
but was told he was reporting to the wrong office. When he tried to report to the office
to which he was directed, he was again instructed to report somewhere else. The
defendant further testified that he did not pay his supervision fees and court costs
because he was paying child support instead. In light of the foregoing, the record amply
supports the trial court’s findings that the violations occurred.
Nevertheless, the defendant contends that he failed to follow the guidelines of the
community corrections program due to a mental deficiency which was noted by the trial
judge. At the revocation hearing, the trial judge stated that,
Although I would agree, [the defendant] seems to have a hard
time understanding things . . . [the defendant] seems to have a
difficult time getting things done and getting things done right. He
really does, but I think we’ve gone about as far as we can with
him. He’s not ever going to be able to successfully be on
Community Corrections or probation. I’m going to send him to
TDOC to serve his sentence. . . . He’s violated . . . his
Community Corrections program, in a substantial way.
We first note that, other than the trial court’s statements, there is absolutely no proof in
the record supporting the defendant’s allegation that he is mentally deficient to such an
extent that he was unable to comply with the terms of his community corrections
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sentence. In any event, in the context of a probation violation, the majority view is that
a mental defect may only be considered as mitigating evidence. State v. Jeffrey D.
Hunter, No. 01C01-9608-CC-00334, Williamson County (Tenn. Crim. App. filed October
30, 1997, at Nashville). As such, the trial court met its obligation by specifically
considering the defendant’s mental condition in mitigation of his failure to follow the
community corrections guidelines. However, the trial court still concluded that the
defendant’s community corrections sentence should be revoked. The record fully
supports this decision.
The defendant further contends that the trial court erred in revoking his
community corrections sentence on the basis of his failure to pay court costs and fees.
The defendant argues that his child support obligations and other expenses prevented
him from making the required payments. The defendant argues that, as a probationary
sentence may not be revoked on the naked proof of failure to pay required fees and there
was no evidence that the defendant willfully refused to make the payments, the trial court
erred in revoking his community corrections sentence. However, the trial court did not
revoke the defendant’s sentence solely on the basis of his failure to make the required
payments. The trial court emphasized the defendant’s failure to report to the program
when making its decision to revoke the defendant’s sentence. The defendant’s failure
to report is sufficient grounds upon which the trial court could base its decision to revoke
the defendant’s sentence. See T.C.A. § 40-35-311; Harkins, 811 S.W.2d at 82. As such,
this issue is without merit.
After a review of the record before us, we conclude that the record contains
sufficient proof to enable the trial court to make an intelligent and conscientious decision.
The trial court did not abuse its discretion in revoking the defendant’s community
corrections sentence. Accordingly, the judgment of the trial court is affirmed.
______________________________
JOHN H. PEAY, Judge
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CONCUR:
______________________________
NORMA M. OGLE, Judge
______________________________
ALAN E. GLENN, Judge
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State v. Lee Bell Jr.
Combined Opinion