Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Brief November 18, 2014
Direct Appeal from the Circuit Court for Blount County No. C-17489-91 David R. Duggan, Judge
J. Liddell Kirk, Knoxville, Tennessee, (on appeal) and Matthew Elrod, Assistant District Public Defender (at trial), for the appellant, Marisa Ann Shrum.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Mike Flynn, District Attorney General; and Matthew Dunn, Assistant District Attorney Generals, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
Procedural History and Factual Background
In 2008, in three separate cases, the petitioner pled guilty to two counts of prescription fraud and one count of failure to appear. It appears that the two prescription frauds occurred in late 2004 and early 2005. The failure to appear arose in June 2006 when the defendant failed to appear for her court date in the prescription fraud cases. It appears from the record that the defendant had absconded during the interim.
Pursuant to the 2008 plea agreement, the defendant was given an effective five-year sentence. The agreement further provided that the defendant would serve sixty days in jail to be followed by sixty days served on consecutive weekends. The balance of the sentence was to be served on supervised probation. A violation warrant was subsequently filed in 2009 against the defendant. The report alleged reporting violations, failure to pay costs and fees, failure to get alcohol and drug assessments, failure to do community service, failure to produce a DNA sample, and failure to report to jail to complete service of the weekend confinements. In October, the violation report was amended to include receiving a new charge of driving while intoxicated while in Indiana.
On December 9, 2013, the trial court found the defendant to be in violation and imposed an additional thirty-six days of split confinement followed by a return to supervised probation. However, the court noted that the initial sixty days remained unserved and ordered service to begin on December 27, 2014. In January, an amended order was filed to clarify the trial court's intent that the defendant's probation was to be extended by one year. Additionally, the order reflected that service of the confinement would be on consecutive weekends beginning on January 10, 2014. In February, an agreed order was filed in the case, which specified that the defendant was to serve the split confinement on consecutive Wednesdays.
In March of 2014, another violation report that is the subject of this appeal was filed. The report alleged that the defendant had failed to report to the jail to serve the required time and that she had failed to do any community service work as ordered. An amendment was filed which alleged that the defendant had traveled to Indiana without permission from her probation officer.
Multiple witnesses testified at the hearing. The first called was Officer Janet Dougherty of the Blount County Sheriff's Department, who testified as to the amount of time the defendant had served as of April 28, 2014. The defendant's probation officer, Gregory Dunkel, testified that of the original sixty-day sentence, the defendant had actually served thirty-six days. He also related that the defendant had been sentenced to serve sixty consecutive Wednesdays in jail and to perform one hundred hours of community service at the local animal shelter. No time was served by the defendant with regard to these. However, she did report for probation appointments.
Officer Dunkel testified that on February 12, the defendant had requested that she be able to report for split confinement at the end of the day. However, Officer Dunkel did not have any further contact with the defendant until February 25, when she told him that she had failed to report to the jail because of illness. According to Officer Dunkel, on March 12, the defendant informed him that she wanted to serve her split confinement in increments greater than one day. He also testified that he learned from a family member that, on March 21, the defendant was in Indiana without permission. When the defendant next reported, on March 25, she was traveling in a vehicle with Indiana license plates. She was arrested at that time. Officer Dunkel did acknowledge that the defendant had been reporting and that she had paid all her costs and fees.
The defendant also testified and admitted that she had committed the violations of her probationary agreement. She testified that she blamed herself for her failure to comply, but she explained that it was because of health issues, child issues, and a lack of transportation or a permanent residence. She testified that she was responsible for taking care of her grandparents and her three daughters, all of who wished to return to Indiana where they were from. While in Tennessee, she had stayed with friends, one of whom assaulted her. She also testified that she ...