Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015.
Appeal from the Circuit Court for Bedford County Nos. 15656, 15657 Franklin L. Russell, Judge.
Donna L. Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender, Shelbyville, Tennessee, for the appellant, David Muangkhot.
Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Robert Carter, District Attorney General; and Richard Aaron Cawley, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE.
In November 2004, the Bedford County Grand Jury indicted the Defendant for one count of sale of Schedule I controlled substance and one count of delivery of a Schedule I controlled substance in case number 15656. In case number 15657, the grand jury indicted the Defendant for one count each of possession of a Schedule I controlled substance with intent to sell, possession of a Schedule I controlled substance with intent to deliver, and unlawful carrying of a weapon. On January 20, 2005, the Defendant pleaded guilty, as a Range I standard offender, to one count of sale of a Schedule I controlled substance and one count of possession of a Schedule I controlled substance with intent to sell. The Defendant received concurrent sentences of 10 years at 30% to serve on both counts. On August 16, 2005, the Defendant completed a boot camp program and was placed on supervised probation for the remainder of his sentence.
On April 15, 2014, the trial court issued a violation of probation warrant based upon allegations that the Defendant had tested positive for marijuana and cocaine. At a hearing conducted on May 16, 2014, the Defendant admitted that he had violated the terms of his probation. The Defendant testified that he lived with his parents in Murfreesboro. He was engaged to be married and was working two jobs at the time of his arrest on the violation warrant. The Defendant testified that he had no prior violations of probation. He had reported to his probation officer as required, paid all fines, and passed all other drug screens given to him since 2005. The Defendant further explained that, other than the underlying convictions, he had no other criminal history.
Regarding the violation of probation, the Defendant testified that he smoked a marijuana joint while attending a Super Bowl party on February 3, 2014. He explained that he did not know the joint was laced with cocaine until he inhaled. As an explanation for his use of drugs, the Defendant stated that he was under a lot of stress because he had lost his sister that year and because his father was sick. The Defendant stated that he only smoked one joint and he had thought that he could "beat the system."
Following the Defendant's testimony, defense counsel argued that there was no excuse for the Defendant's behavior but asked the trial court to "be gracious and consider that . . . this was his first violation. And other than this one positive drug screen, he appears to have done quite well on probation . . . ." At the conclusion of the hearing, the trial court determined that the Defendant had violated the terms of his probation, and it revoked probation and ordered the Defendant to serve his sentence. This timely appeal followed.
On appeal, the Defendant acknowledges that he violated the terms of his probation by testing positive for controlled substances, but he argues that the trial court improperly required him to serve the balance of his sentence. He asserts that the trial court should have imposed a sentence of split confinement followed by inpatient drug rehabilitation. The State responds that the trial court did not abuse its discretion by revoking the Defendant's probation and ordering his sentence into effect. We agree with the State.
Upon a finding by a preponderance of the evidence that a defendant has violated a condition of his or her probation, a trial court may revoke probation and order the imposition of the original judgment. Tenn. Code Ann. §§ 40-35-310, -311 (2014); State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991)). We will not disturb the trial court's ruling on appeal absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse of discretion, a defendant must show that there is "no substantial evidence" in the record to support the trial court's determination that a violation of probation has occurred. Id. Proof of a violation does not need to be established beyond a reasonable doubt. State v. Milton, 673 S.W.2d 555, 557 ...