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State v. Phelps

Court of Criminal Appeals of Tennessee, Knoxville

May 24, 2017

STATE OF TENNESSEE
v.
GREGORY T. PHELPS

          Session February 22, 2017

         Appeal from the Criminal Court for Knox County No. 104306A G. Scott Green, Judge

         The Defendant, Gregory T. Phelps, appeals from the Knox County Criminal Court's revocation of his probation for his convictions for felony drug possession and unlawful possession of a firearm and order that he serve his effective four-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

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

          Forrest L. Wallace, Knoxville, Tennessee, for the appellant, Gregory T. Phelps.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Charme P. Allen, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         On October 24, 2014, the Defendant was indicted for criminal trespass, unlawful possession of a firearm, and felony drug possession. On July 28, 2015, the Defendant pleaded guilty as charged to the firearm- and drug-related offenses, and he received concurrent four-year and one-year sentences, respectively, to be served on probation. A transcript of the guilty plea hearing is not included in the appellate record. On August 14, 2015, a probation violation report was filed with the trial court, alleging that the Defendant's August 5, 2015 drug screen was positive for amphetamine, methamphetamine, oxycodone, and marijuana. The report also alleged that the Defendant admitted using marijuana and oxycodone, that the Defendant signed an "admission form, " that the Defendant denied using methamphetamine, and that a laboratory analysis showed the presence of amphetamine, methamphetamine, oxycodone, oxymorphone, and marijuana. An arrest warrant for the violation was issued on August 14, 2015. On February 3, 2016, the probation violation warrant was amended to include additional allegations that the Defendant was arrested on January 21, 2016, in Georgia for felony possession of a controlled substance and unlawful possession of a firearm, that the Defendant left Tennessee without the consent of his probation officer, and that the Defendant had not reported to his probation officer since August 2015.

         At the revocation hearing, Cobb County Georgia Sheriff's Deputy Tarver Mygatt testified that on January 21, 2016, the Defendant was brought to the detention center after being arrested for possession of a firearm while being a convicted felon. Deputy Mygatt stated that the next day, he smelled marijuana coming from three cells and that he informed his supervisor, Sergeant Wilson, who ordered all inmates in the housing unit to undergo a strip search and a "shake down."

         Deputy Mygatt testified that during the Defendant's strip search, a plastic "baggy" was found inside the Defendant's rectum. Deputy Mygatt confiscated the bag and said that based upon his training, the bag contained approximately two grams of marijuana and three pills. He said that he took the pills to the detention center's pharmacy and that the nurse identified the pills as Percocet and Oxycodone. Deputy Mygatt obtained an arrest warrant for misdemeanor possession of marijuana and for two counts of felony possession of the prescription pain medications. He said the Defendant was not charged for introducing contraband into a penal facility. He said the charges were still pending.

         On cross-examination, Deputy Mygatt testified that the confiscated marijuana and pain medications were sent to the laboratory for analysis, that the analyses had been performed, and that he did not have a copy of the laboratory report. He did not know whether the Defendant possessed a valid prescription for the pain medication, whether any other inmates were charged as a result of the search, or whether the Defendant had a cellmate.

         Probation Officer Allison Joins testified that she began supervising the Defendant around December 2015 and that a probation violation report and arrest warrant for the violation had been prepared by that time. Ms. Joins said that Dwight Brown was the Defendant's previous probation officer and that Mr. Brown's initial probation violation report alleged the Defendant had failed a drug screen on August 5, 2015. Ms. Joins stated that her records showed the Defendant admitted using marijuana and pain medication but denied using methamphetamine. M s. Joins said that a laboratory analysis report showed the Defendant was positive for amphetamine, methamphetamine, oxycodone, oxymorphone, and marijuana and that the failed drug screen occurred shortly after the Defendant pleaded guilty and received probation. She agreed her records showed that the Defendant did not report to Mr. Brown after he failed the drug screen.

         Ms. Joins testified that she received a telephone call informing her that the Defendant had been charged with new criminal offenses and that the Defendant was incarcerated in Georgia. She said that sometime after January 21, 2016, the Defendant called and informed her about the Georgia charges. She agreed the Defendant was initially charged in Georgia with unlawful possession of a firearm and said that the Georgia warrant reflected a Georgia address for the Defendant. She said ...


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