IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1999 SESSION
FILED
October 6, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, )
Appellate Court Clerk
)
Appellee, ) C.C.A. No. 02C01-9904-CC-00128
)
vs. ) Chester County
)
MARSH BARHAM, ) Hon. Franklin Murchison, Judge
)
Appellant. ) (Community Corrections
) Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL D. RASNAKE (at hearing) PAUL G. SUMMERS
Assistant Public Defender Attorney General & Reporter
227 W. Baltimore St.
Jackson, TN 38301 R. STEPHEN JOBE
Asst. Attorney General
CLIFFORD K. McGOWN (on appeal) 425 Fifth Ave. North
Attorney at Law 2d Floor, Cordell Hull Bldg.
P.O. Box 26 Nashville, TN 37243-0493
Waverly, TN 37185
JAMES G. (JERRY) WOODALL
District Attorney General
NICK NICOLA
Asst. District Attorney General
P.O. Box 2528
Jackson, TN 38301
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Marsh Barham, appeals from the revocation of his
Community Corrections sentence. Barham contends that the trial court should have
imposed a short period of incarceration followed by intensive probation and drug
treatment, rather than requiring that he serve his entire sentence in the Department
of Correction. Upon review of the record, the briefs of the parties, and the
applicable law, we affirm.
Barham was convicted of sale and delivery of cocaine (case 3384)
and theft under $500 (case 3383) in 1994. He received a five-year sentence for the
sale and delivery conviction and an eleven month, 29 day sentence for theft,
imposed concurrently for an effective sentence of five years. Barham then entered
the Department of Correction boot camp program and was released to serve the
balance of his five-year sentence on probation in 1995. In 1997, Barham received
a second conviction of sale and delivery of cocaine (case 3567). As part of his plea
agreement, he received a six-year sentence to be served in the Community
Corrections program consecutively to the sentence for case 3384, the five-year sale
and delivery conviction. The plea agreement further provided for Barham's
probation in case 3384 to be revoked and the balance of that sentence to be served
in the Community Corrections program.
Later in 1997, a violation warrant issued in case 3384. By agreed
order, the defendant was ordered to serve 45 days for the violation and to return
thereafter to Community Corrections. By all accounts, the defendant served the 45
days but never again reported to the Community Corrections program.
In May 1998, a revocation warrant issued which alleged the defendant
had failed to pay fees and costs, failed to report, and had obtained new criminal
charges. A hearing was conducted at which Barham admitted he had failed to
report to the Community Corrections program following his 45-day incarceration.
He claimed he misunderstood the terms of the order; he believed he was to serve
the jail time and then be released from further supervision. Barham also admitted
he had received a new conviction. He claimed he had been unable to pay his fees
and costs because he was having a difficult time earning money honestly, as he
was no longer selling drugs.
At the conclusion of the hearing, the trial court found Barham
incredible and revoked him from the Community Corrections program in favor of
incarceration.
The issue presented by Barham is whether the trial court erred in
revoking his Community Corrections status and ordering him to serve his sentence
in the Department of Correction. In a revocation proceeding, the state has the
burden of proving the violation by a preponderance of the evidence. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The trial court is entitled to exercise its
discretion to revoke a Community Corrections sentence upon a finding that the
defendant has violated the conditions of the sentence. Harkins, 811 S.W.2d at 82.
Before the trial court may revoke the Community Corrections sentence, the record
must contain sufficient evidence to permit the court to make an intelligent and
conscientious decision. Harkins, 811 S.W.2d at 82. Upon revocation, the court
may order the defendant to serve her sentence in confinement. Harkins, 811
S.W.2d at 82. On appeal, the trial court's order revoking a Community Corrections
sentence is subject to reversal only upon a showing of an abuse of discretion.
Harkins, 811 S.W.2d at 82. In order for an abuse of discretion to occur, the
reviewing court must find that the record contains no substantial evidence sufficient
to support the trial judge's conclusion that the violation of the terms of the sentence
has occurred. Harkins, 811 S.W.2d at 82.
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In the case at bar, Barham's own testimony established that he
violated the terms of his Community Corrections sentence. Barham admitted that
he failed to report following the incarcerative period he served for his previous
revocation and that he had received a new conviction which he had not reported to
the supervisory authority. The trial court found the defendant's allegation that he
did not know he was subject to Community Corrections supervision to be incredible.
The only question before this court is whether the trial court was within its discretion
in removing Barham from the Community Corrections program and ordering him to
serve his remaining time in prison. We hold that the trial court acted within its
discretion. Barham has had repeated opportunities to serve his sentence in the
community. He began serving his sentence in case 3384 in boot camp followed by
probation. He proved himself unworthy of probation, accruing numerous alleged
violations. He was eventually transferred to Community Corrections supervision
as part of a plea bargain in case 3567. He violated the terms of that sentence and
served a short period of incarceration, which proved an insufficient deterrent to
further violations. Obviously, this defendant is one whose prospects of rehabilitation
are virtually nil. As the trial court aptly stated, "We have been dealing with Mr.
Barham for years and years, and he is not ever going to make it on any kind of
release program . . . ." The evidence more than sufficiently supports the trial court's
determination.
The judgment of trial court is affirmed.
_______________________________
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JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_____________________________
JOSEPH M. TIPTON, JUDGE
_____________________________
JOHN EVERETT WILLIAMS, JUDGE
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