IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 13, 2015
STATE OF TENNESSEE v. GORDON HERMAN BRADEN, III
Appeal from the Criminal Court for Davidson County
No. 2011-A-3 Steve Dozier, Judge
No. M2014-01402-CCA-R3-CD – Filed May 22, 2015
The defendant, Gordon Herman Braden, III, appeals the revocation of his community
corrections sentence, claiming that the trial court erred by ordering that he serve the
balance of his sentence in confinement. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Emma Rae Tennent (on appeal) and Kevin Griffith (at hearing), Assistant District Public
Defenders, for the appellant, Gordon Herman Braden, III.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Pamela Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Originally charged with three counts of the sale of .5 grams or more of
cocaine in a drug-free zone, see T.C.A. § 39-17-417, the defendant pleaded guilty on
April 28, 2011, to two counts of the sale of .5 grams or more of cocaine and one count of
the sale of less than .5 grams of cocaine. The trial court ordered the defendant to serve
concurrent sentences of 10 years for each count of the sale of .5 grams or more of
cocaine, to be served on community corrections following the service of 90 days in jail.
With respect to the sale of less than .5 grams of cocaine, the trial court sentenced the
defendant to seven years’ incarceration, suspended to community corrections and to be
served consecutively to the 10-year sentence for an effective sentence of 17 years.
On April 30, 2014, the defendant’s probation officer filed a violation report
alleging that the defendant had violated the terms of his community corrections
placement by testing positive for the use of cocaine, by being arrested for driving on a
revoked licence, and by violating his curfew. At the June 10, 2014 recovation hearing,
the defendant conceded that he had violated the terms of his community corrections
placement but chose to present proof as well.
The defendant’s community corrections officer, Brandy Jemerson, testified
that she had been supervising the defendant since he violated his community corrections
placement in August 2013 and that the defendant had been receiving treatment for bipolar
disorder. When the defendant was released from jail, he lived in a halfway house for six
months, and, during that time period, he complied with the terms of his placement “for
the most part.” Ms. Jemerson testified that the defendant tested positive for the use of
marijuana when he first entered the halfway house but that he passed all of his
subsequent drug sceens. After the defendant left the halfway house and was arrested for
driving on a revoked licence, Ms. Jemerson asked the defendant if he would consider
returning to the halfway house. The defendant replied that he did not wish to return and
stated that he would not pay rent. When Ms. Jemerson informed the defendant that he
likely would be returned to jail, the defendant responded, “[S]o be it.”
Tina Mitchell, a church pastor and director of the organization that operated
the defendant’s halfway house, testified that, at the completion of the defendant’s six-
month residency, the defendant “very briefly” attended meetings at the facility but then
stopped. Ms. Mitchell acknowledged that a participant’s success in the halfway house
program was largely dependent upon the participant’s motivation and that if the
defendant had indicated that he did not wish to return to the program or pay rent as
required, he would likely be discharged.
The trial court found, by a preponderance of the evidence, that the
defendant had violated the terms of his community corrections placement. The court
noted that the defendant had violated the terms of his placement on three prior occasions
and that, on each occasion, he had been reinstated to community corrections placement.
In addition, the trial court noted the defendant’s multiple prior convictions, “including
weapon possession, assaults, and illegal drugs.” Given the defendant’s “repeated
violations of his community corrections, his continued drug use, and his noncompliance
with treatment,” the court found that the defendant had failed to demonstrate “an ability
to comply with the conditions of alternative release” and ordered his sentence into
execution, with credit for time served.
The accepted appellate standard of review of a probation revocation is
abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State
-2-
v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d
436, 443 (Tenn. 2010). The 1989 Sentencing Act expresses a burden of proof for
revocation cases: “If the trial judge finds that the defendant has violated the conditions of
probation and suspension by a preponderance of the evidence, the trial judge shall have
the right by order duly entered upon the minutes of the court to revoke the probation and
suspension of sentence. . . .” T.C.A. § 40-35-311(e)(1).
Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation
and “[c]ause the defendant to commence the execution of the judgment as originally
entered, or otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the original judgment
so rendered by the trial judge shall be in full force and effect from the date of the
revocation of such suspension.” Id. § 40-35-310.
In the present case, the defendant admitted violating the terms of his
community corrections placement. Thus, the defendant conceded an adequate basis for a
finding that he had violated the terms of his alternative sentence. See State v. Neal
Levone Armour, No. E2003-02907-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App.,
Knoxville, Sept. 9, 2004) (citations omitted). Moreover, the trial court determined that
the State established by a preponderance of the evidence the community corrections
violations. The record supports these determinations, and, therefore, revocation was
unquestionably justified.
We hold that the trial court acted within its discretion, and we affirm the
order of revocation and the imposition of the original sentence.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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State of Tennessee v. Gordon Herman Braden, III
Combined Opinion