Court of Criminal Appeals of Tennessee, Nashville
Assigned July 15, 2015
Appeal from the Circuit Court for Dickson County Nos. 22CC-2012-CR-95 & 22CC-2012-CR-111 Suzanne Lockert-Mash, Judge
Dawn S. Kavanagh, Assistant District Public Defender, for the appellant, Zantuan A. Horton.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Carey Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
Originally charged, in case number 22CC-2012-CR-95 with one count each of third offense driving on a revoked license, simple possession of marijuana, and failure to appear in court and in case number 22CC-2012-CR-111 with two counts of the sale of .5 grams or more of cocaine, the defendant pleaded guilty on January 17, 2014, to one count of the sale of .5 grams or more of cocaine and one count of third offense driving on a revoked license; the State dismissed the remaining charges. The trial court ordered the defendant to serve eight years for the sale of .5 grams or more of cocaine and 11 months, 29days for the third offense driving on a revoked license. The trial court ordered the sentences to be served concurrently and on supervised probation following the service of 30days in jail.
On May 28, 2014, the defendant's probation officer filed a violation report alleging that the defendant had violated the terms of his probation by being arrested for domestic assault and possession of contraband in a penal institution. On June 27, 2014, the State dismissed the probation violation warrant with the concurrence of the trial court, and the defendant's probation was transferred to community corrections placement.
On September 24, 2014, the defendant's probation officer filed a violation report alleging that the defendant had violated the terms of his sentence by failing to pay court costs; by failing to provide proof of full-time employment; and by failing to follow the recommendations of the community corrections program. On October 14, 2014, the defendant's probation officer filed a second violation report, alleging that the defendant had not reported as scheduled since September 15 and that he was considered to be an absconder.
At the November 26, 2014 revocation hearing, Angela Hunt, the community corrections officer supervising the defendant's probation, testified that she had been supervising the defendant since June 27. From June 27 until September 15, the defendant reported once per week as instructed, but he failed to provide any verification of employment. Pursuant to the terms of his community corrections placement, the defendant was required to pay $50 per month in court costs, and Ms. Hunt testified that he had failed to make any of those payments. Because the defendant was unemployed, he was required to attend an employment skills class. The defendant was removed from the class around September 15 because he disposed of his class workbook, exhibited a "poor attitude, " and refused to take responsibility for his actions. Ms. Hunt explained that the defendant "didn't understand why he got kicked out" of the employment skills class because "he had a job and so that's why he threw the workbook away, " but the defendant never provided Ms. Hunt with proof of his employment. The defendant told Ms. Hunt that he had attempted to contact her on her cellular telephone several times after September 15, but the defendant left no voicemail messages, and Ms. Hunt was unaware of his attempts to reach her.
Ms. Hunt admitted that the defendant turned himself in on September 29, two weeks after his most recent appearance with Ms. Hunt. Ms. Hunt acknowledged that the defendant had made a total of $30 in payments on his supervision fees, which covered the months of July and August, but that he did not make a payment on the September fees.
The defendant testified that he quit attending the employment skills class in September because he was "getting a job at UPS" and that he was involved in job training for two weeks starting in mid-September. The defendant conceded that he had not called Ms. Hunt to inform her that he would be attending that job training. The defendant stated that he had been hired by other employers but that he had been fired after the employers learned of his criminal background, although the defendant later admitted that he had not been employed by any establishment from June until September. The defendant testified that he was attempting to enroll in barber college and that he intended to start his own barber business upon finishing school.
Although his explanation was convoluted, the defendant appeared to explain that he missed his required reporting date on September 22 because he was working in an attempt to earn money to pay his anticipated bond, even though his probation officer had not yet filed a probation violation report. The defendant also offered, as a second explanation for his absence on September 22, that Ms. Hunt had visited his house on September 19 and had informed the defendant's mother that she had a warrant for his arrest. The defendant admitted that he had been on probation on a previous occasion, that he was familiar with the rules he was required to follow while on probation, and that he had chosen to violate those rules.
Ms. Hunt testified as a rebuttal witness that, on September 2, the defendant had informed her that he was planning to contact Marvin Turner to learn if the defendant had been hired by UPS. On September 15, Ms. Hunt gave the defendant a verbal warning regarding two missed employment skills classes and informed the defendant that it was "his ...