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State v. Karr

Court of Criminal Appeals of Tennessee, Knoxville

April 7, 2015

STATE OF TENNESSEE
v.
DENNIS KARR

Assigned on Briefs February 19, 2015

Appeal from the Circuit Court for Sevier County No. 13485-III Rex Henry Ogle, Judge

The Defendant, Dennis Karr, appeals as of right from the Sevier County Circuit's revocation of his community corrections sentence[1] and order of incarceration of his five-year-sentence relative to his guilty-pleaded sale of methamphetamine conviction. The Defendant contends that the trial court abused its discretion in revoking his community corrections sentence based upon his failure to report, which, according to the Defendant, was due to necessity because he was a single father and homeless. He submits that, although he was an absconder from supervision as charged, he had, in his opinion, demonstrated an ability to comply with the conditions of his release by addressing his substance abuse problem, by not obtaining any new charges, and by returning to Tennessee to address this violation. Following our review, we affirm the trial court's revocation of the Defendant's community corrections sentence.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

Amber D. Haas, Sevierville, Tennesee, for the Appellant, Dennis Karr.

Herbert H. Slatery, III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; James B. ("Jimmy") Dunn, District Attorney General; and Timothy Norris, Assistant District Attorney General, for the Appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

OPINION

D. KELLY THOMAS, JR., JUDGE

FACTUAL BACKGROUND

On May 26, 2004, the Defendant was charged with one count each of sale or delivery of methamphetamine in violation of Tennessee Code Annotated section 39-17-417. [2] The Defendant thereafter entered into a negotiated plea agreement on September 8, 2008, pleading guilty to the sale of methamphetamine in an amount less than 0.5 grams, a Class C felony, and the delivery count was dismissed. He received a five-year sentence in exchange for his plea, at thirty percent release eligibility, with the sentence to be served on community corrections after service of ninety days in jail. He was further ordered to pay a $2, 000.00 fine and court costs, to perform 120 hours' community service, and to complete an alcohol and drug assessment.

A violation of community corrections warrant was filed on September 8, 2009, wherein it was alleged that the Defendant had failed to report. Several days later a violation of probation warrant was filed for this same guilty-pleaded conviction. This time it was alleged in the warrant that the Defendant violated the conditions of his probationary sentence in the following respects:

Rules # 4, 5, 6, 7, 8, 9, 10: The Defendant has not reported to his [p]robation [o]fficer since March 10, 2009 making it impossible for his [p]robation [o]fficer to verify employment or residence. The Defendant is not in compliance with orders to make payment of [c]ourt cost[s] (owing $2882) and supervision fees (owing $315). The Defendant has not made himself available for search or for drug screening to verify compliance with prohibition from drug or alcohol use. The Defendant has not made progress toward obtaining an alcohol and drug assessment or completing any community service work as ordered. The Defendant's current whereabouts are unknown.

Both warrants were served on the Defendant on March 14, 2014.

An investigation report was prepared, and a revocation hearing was held. At the hearing, Dana McCullen, manager of the probation and parole office in Sevier County, testified that it was her "understanding" that the Defendant was placed on "state probation" following his September 8, 2008 guilty plea. The Defendant "reported monthly [to his probation officer] up until March of 2009 and then he ceased reporting[, ]" according to Ms. McCullen. She was not aware that the Defendant "was supposed to be on [c]ommunity [c]orrections" until the day of the revocation hearing. She confirmed that her office filed a probation violation ...


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