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State v. Weaver

Court of Criminal Appeals of Tennessee, Knoxville

May 15, 2017

STATE OF TENNESSEE
v.
BLAKE AUSTIN WEAVER

          Assigned on Briefs March 21, 2017

         Appeal from the Circuit Court for Anderson County No. B4C00501 Donald Ray Elledge, Judge

         The Defendant, Blake Austin Weaver, appeals the revocation of his community corrections sentence. Pursuant to a guilty plea, he was convicted of one count of theft of property valued more than $60, 000 and eleven counts of forgery of a check in an amount greater than $1, 000 and less than $10, 000. The trial court imposed an effective sentence of fifteen years to be served on community corrections. The trial court revoked the Defendant's community corrections sentence after finding that the Defendant failed a drug screen, failed to pay restitution, and did not comply with orders to attend intensive outpatient therapy and enter a halfway house. After revocation, the trial court ordered the Defendant to serve the remainder of his sentence in prison. He argues that the trial court abused its discretion by revoking his community corrections sentence, contending that the trial court erroneously failed to consider his ability to pay restitution, relied on grounds outside the notice of violation, and acted too harshly in requiring him to serve the remainder of his sentence in confinement. After a thorough review of the record and applicable law, we affirm the judgment revoking the Defendant's community corrections sentence.

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

          J. Thomas Marshall, District Public Defender, for the appellant, Blake Austin Weaver.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; and Rachel Sobrero, Assistant District Attorney General Pro Tem, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Timothy L. Easter and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         In July 2015, the Defendant entered a guilty plea to one count of theft of property valued more than $60, 000 and to eleven counts of forgery of a check in an amount greater than $1, 000 and less than $10, 000. T.C.A. §§ 39-14-103(a), -114(a). For the theft conviction, the Defendant received a twelve-year sentence. For the forgery convictions, the Defendant received concurrent sentences of three years. The trial court ran the theft and forgery sentences consecutively for an effective sentence of fifteen years, suspended the sentences after the service of 180 days, and placed the Defendant on community corrections for the remainder of the sentence. The terms of the community corrections sentence included submitting to drug screens, maintaining employment, and paying restitution to the victim in the amount of $146, 340.91 to be paid in monthly payments of no less than $1, 000.

         In March 2016, a violation of community corrections warrant was issued against the Defendant for failure to (1) pass a drug screen on February 24, 2016, (2) pay any restitution to the victim, and (3) attend intensive outpatient treatment and enter a halfway house at the direction of his community corrections officer.

         At the hearing, Mr. Hugh Kring, the Defendant's supervisor within the community corrections program, testified that the Defendant failed to maintain compliance with the terms of his sentence, stating that the Defendant failed a drug screen, failed to enter a halfway house, failed to attend intensive outpatient therapy, and failed to pay restitution to the victim. Mr. Kring explained that after the Defendant was released from prison, the Defendant tested positive for oxycodone and suboxone in February of 2016. He stated that the Defendant only attended one class for intensive outpatient therapy upon entering the community corrections program. He also stated that he never received any money from the Defendant to go toward his restitution payments.

         On cross-examination, Mr. Kring testified that the Defendant reported to him weekly after his release from prison, with the exception of one or two occasions when the Defendant had transportation problems. Mr. Kring testified that he did not believe the Defendant had the ability to pay restitution. He stated that he believed the Defendant made a good candidate for drug court and that he had recently learned of the Defendant's application to attend drug court, explaining that the Defendant had "a drug problem" and needed treatment.

         The Defendant testified that he did not earn enough money to pay restitution. He explained that his employer garnished his wages for debts owed to the employer, leaving him with a weekly paycheck of about $100 to $150. He also testified that after he began to relapse, he asked Mr. Kring if he could enter into a treatment program. He explained that although Mr. Kring secured enrollment into a treatment facility, the Defendant did not admit himself because he knew he would fail the drug screen required for admission. He stated that on the day of the violation of community ...


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