Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014.
Appeal from the Circuit Court for Montgomery County No. 40900411 John H. Gasaway, III, Judge.
Gregory D. Smith, Clarksville, Tennessee, for the appellant, Jeremy D. McWherter.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior Counsel; John W. Carney, District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE.
The probation violation warrant in this case alleged that Defendant violated the conditions of his probation by:
RULE #1: I will obey the laws of the United States, or any state in which I may be, as well as any municipal ordinances. Offender committed the offense of and was arrested on 3-19-14, for the offense of aggravated assault.
RULE #10: I will observe any special conditions imposed by the Court as listed below: Offender failed to provide proof of completing PSW [public service work] ordered to perform 250 hours to date still have a balance of 194 hours.
At the revocation hearing, defense counsel told the trial court that Defendant would admit to the probation violation. The following exchange took place following a proposal by defense counsel to the trial court concerning revocation of Defendant's probation:
[Defense Counsel]: Your Honor, [Defendant] has a VOP for several cases. We acknowledge that one of the basis for the VOP was new charges. He has pled guilty to that, but we do have a proposal for disposition that the State is not joining us on, said we could present it to the Court.
[Defendant] has letters of acceptance from two different rehab centers. He's got an alcohol problem, and generally when he gets in trouble it's with rehab [sic]. What we would ask is permission to allow him to go to - - on a furlough to one of the rehabs, and then review disposition depending on how he does there.
THE COURT: Well, [Defendant] has a - - has history that may not allow the Court to do that. Back in July of '09 he entered a plea of guilty to especially aggravated burglary, was sentenced to an eight year term, ordered to, this in accordance with the plea agreement, serve one year in jail and the balance of the sentence was probated. Then he came before the Court in October of 2010 on a violation of probation. He was, in accordance with an agreement,
sentenced to time served and reinstated to probation. And he came back in January of '13 again accused of violating probation, again sentenced to time served and reinstated in accordance with an agreement. And then in September of 2013 he was accused again of violating probation because of another charge, which is case 41300603, in which case, on that date of September five of '13 he entered a plea of guilty to aggravated assault, was sentenced to a three year term, the service was suspended, and that was ordered to be served consecutive to the first case. And - - so he was reinstated to probation on that first case, had a three year suspended sentence ordered to be served consecutive and here - - here he is again. I don't see any notes in here about him ever seeking any kind of rehabilitation. I doesn't [sic] see - - that doesn't mean he - - it wasn't brought up, but ...