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State v. Gianaro

Court of Criminal Appeals of Tennessee, Knoxville

December 8, 2014

STATE OF TENNESSEE
v.
LEE MICHAEL GIANARO

Assigned on Briefs November 18, 2014

Appeal from the Criminal Court for Hamilton County No. 277599 Rebecca J. Stern, Judge

Steve E. Smith, District Public Defender; David Barrow (at plea) and Steven D. Brown (at probation revocation and on appeal), Assistant District Public Defenders, Chattanooga, Tennessee, for the appellant, Lee Michael Gianaro.

Herbert H. Slatery III, Attorney General and Reporter; Meredith Devault, Senior Counsel; William H. Cox, District Attorney General; and Matthew Rogers, Assistant District Attorney General, for the appellee, State of Tennessee.

Timothy L. Easter, J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.

OPINION

TIMOTHY L. EASTER, JUDGE

Defendant was indicted by the Hamilton County Grand Jury in September 2010 for aggravated burglary, theft of property valued over $1, 000, and vandalism. In September 2011, Defendant pleaded guilty to aggravated burglary in exchange for a three-year sentence and payment of restitution to the victim in the amount of $1, 500. Defendant was ordered to serve the sentence on supervised probation. The remaining charges were dismissed.

On September 16, 2013, a probation violation report was filed against Defendant. In the report, Defendant was alleged to have violated probation by getting arrested for failure to appear and domestic assault. In addition, the report alleged Defendant failed to pay fees, failed to pay restitution, and engaged in "assaultive, abusive, threatening or intimidating behavior." The trial court issued a capias and set a hearing on the probation violation report.

The trial court revoked Defendant's probation on October 7, 2013. The trial court "assigned" Defendant to the Hamilton Community Corrections until Defendant paid restitution to the victim in full. After payment of restitution, the trial court ordered Defendant to be returned to supervised probation with the "original judgment special conditions."

Defendant successfully completed the Community Corrections program on January 23, 2014, and was returned to supervised probation.

On April 3, 2014, a second probation violation report was filed, alleging Defendant violated the terms of his probation by getting arrested for domestic assault against his grandmother. The report also alleged that Defendant had failed to secure employment, failed to report the arrest, used marijuana, failed to pay court costs, and engaged in "assaultive, abusive, threatening or intimidating behavior." The trial court issued a capias and set a hearing on the probation violation report.

At the hearing, the trial court heard testimony from Defendant's probation officer, Lawrence Steven Lutes. Mr. Lutes explained that he started supervising Defendant around December of 2013. At that time, Defendant had already violated probation once and was ordered to serve some time on Community Corrections while he made restitution payments. Once the payments were made, Defendant was released from Community Corrections back to supervised probation.

Mr. Lutes filed a probation violation report after learning Defendant was arrested for domestic assault on his grandmother. Defendant failed to report for supervision in March 2014. When Mr. Lutes went to Defendant's home he learned about the arrest. According to the police reports and statements from the grandmother to Mr. Lutes, it appeared that there was some sort of an argument between the grandmother and Defendant, and "she was trying to get away and he hit her head into a door." Mr. Lutes saw the injuries to Defendant's grandmother during the home visit. Defendant did not notify Mr. Lutes of the new charge. Additionally, Defendant was supposed to take a drug test in February but admitted to using marijuana before the test. Lastly, Defendant failed to pay fines and supervision fees.

Defendant testified at the hearing. He was twenty-four years old at the time of the hearing and stated that he was working seventy-two hours a week at a construction company while on probation. While on Community Corrections at Silverdale, Defendant worked in the kitchen. Defendant explained that he was originally placed on probation after "using a ...


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