IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 7, 1999
Cecil Crowson, Jr.
MARCH 1999 SESSION Appellate C ourt
Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9804-CC-00144
Appellee, * BLOUNT COUNTY
VS. * Hon. D. Kelly Thomas, Jr., Judge
AMANDA MARKOWICZ, * (Revocation of Community Corrections
Sentence)
Appellant. *
For Appellant: For Appellee:
Gregory D. Smith, Attorney John Knox Walkup
One Public Square, Ste. 321 Attorney General and Reporter
Clarksville, TN 37040
and Michael J. Fahey, II
Mack Garner Assistant Attorney General
District Public Defender Criminal Justice Division
419 High Street 425 Fifth Avenue North
Maryville, TN 37804 Nashville, TN 37243
(on appeal)
Edward P. Bailey, Jr.
Edgar A. Wilder, Attorney Assistant District Attorney General
222 Ellis Avenue Blount County Courthouse
Maryville, TN 37804 363 Court Street
and Maryville, TN 37804
Richard L. Gann, II, Attorney
P.O. Box 6888
Maryville, TN 37802
(at trial)
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Amanda Markowicz, appeals the trial court's
revocation of a sentence under the community corrections program. The single
issue presented for review is whether the trial court erred by revoking the community
corrections sentence.
We affirm the judgment of the trial court.
On December 4, 1997, the defendant entered four guilty pleas for
which she received the following concurrent sentences:
Facilitation of aggravated burglary Two years, Range I
Burglary Two years, Range I
Theft over $500 One year, Range I
Theft over $1,000 Two years, Range I
The trial court entered an alternative sentencing order which included a behavioral
contract and conditions on the community corrections sentence. Included among
the conditions was an acknowledgment of the authority of the trial court to revoke
community corrections and to impose a maximum sentence. Tenn. Code Ann.
§ 40-36-106.
On February 25, 1998, a warrant was issued against the defendant for
her failure to report to her supervisor and for her failure to perform the required
amount of community service. At the revocation hearing, the defendant did not
dispute her failure to report but did contend that marital difficulties with her husband
and an incorrect telephone number had contributed to a breakdown in
communications with her supervising officer, Patricia Ridings. The defendant also
claimed that she had performed four hours of community service work in December
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but conceded that she had otherwise failed to meet her responsibilities in that
regard. At the conclusion of the hearing, the trial court revoked the community
corrections sentence and, rather than imposing a prison term, ordered six months in
jail after which the defendant would be permitted to reapply for community
corrections.
The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann.
§ 40-36-103. The community corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant
meets the minimum requirements of the Community Corrections Act of 1985,
however, does not mean that he or she is entitled to be sentenced under the Act as
a matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).
The following offenders are eligible for community corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
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(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
Once a defendant violates the terms of his community corrections
sentence, the trial court may revoke the sentence and impose a new sentence:
The court shall also possess the power to revoke the
sentence imposed at any time due to the conduct of the
defendant or the termination or modification of the
program to which the defendant has been sentenced,
and the court may resentence the defendant to any
appropriate sentencing alternative, including
incarceration, for any period of time up to the maximum
sentence provided for the offense committed, less any
time actually served in any community-based alternative
to incarceration.
Tenn. Code Ann. § 40-36-106(e)(3).
Trial courts have authority to revoke a community corrections sentence
based upon the conduct of the defendant. Tenn. Code Ann. § 40-36-106(e)(3). A
trial judge's decision to revoke a defendant's release on community corrections
should not be disturbed unless there is an abuse of discretion. State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). In order to find an abuse of discretion, it must appear
that the record contains "no substantial evidence to support the conclusion of the
trial judge that a violation of the conditions ... occurred." Id.
The same principles applicable to a probation revocation are relevant
to the revocation of community corrections. Id. at 83. The trial judge is not required
to find that a violation of the terms of probation has occurred beyond a reasonable
doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). Rather, the
existence of a violation of probation need only be supported by a preponderance of
the evidence. Tenn. Code Ann. § 40-35-311(d). Here, the trial court had a factual
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basis to revoke the sentence because the defendant "just quit" in her performance
of the terms and conditions of the alternative sentence. The trial court observed that
the defendant had not taken advantage of the potential benefits of the program
because she had made little effort to develop a positive relationship with her
supervisor. Some consideration was given to a "halfway house" alternative which
might have been available but was not ordered; however, the trial court chose a jail
sentence. There is insufficient information in this record for this court to conclude
that there was any abuse of discretion in the imposition of a six-month jail sentence
rather than continuing participation in the community corrections program or
placement in a different program with even greater restrictions on release. Because
the trial court saw and heard the defendant firsthand and must be afforded
reasonable discretion in the imposition of alternative sentences, this court cannot
disagree.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Norma McGee Ogle, Judge
_____________________________
Cornelia A. Clark, Special Judge
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