Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 26, 2017 at Knoxville
from the Circuit Court for Marshall County No. 2013-CR-101
Forrest A. Durard, Judge.
Defendant, Rudy Vincent Dunn, appeals from the Marshall
County Circuit Court's revocation of his probation for
his conviction for felony drug possession and order that he
serve the remainder of his one-year, three-month sentence in
confinement. The Defendant contends that the trial court
abused its discretion by ordering him to serve his sentence.
We affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Orr Hargrove, District Public Defender, and Michael J.
Collins, Assistant Public Defender, for the appellant, Rudy
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Robert J. Carter, District
Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr.,
H. MONTGOMERY, JR., JUDGE.
24, 2013, the Defendant was indicted for possession of
marijuana with the intent to sell and to deliver. The
Defendant pleaded guilty, and the trial court merged the
offenses and sentenced the Defendant to one year, three
months in confinement. On May 22, 2014, the Defendant was
placed on determinate release probation, after serving thirty
percent of his sentence. See T.C.A. §
February 19, 2015, a probation violation report was filed
with the trial court, alleging that the Defendant had failed
to pay court costs and fines and had failed to complete all
of his court-ordered public service work. An arrest warrant
was issued on February 19, 2015. An amended probation
violation report was filed with the trial court on July 8,
2015, alleging that the Defendant had pleaded guilty to
misdemeanor drug possession in Davidson County. At the July
8, 2015 probation revocation hearing, the Defendant admitted
he had violated the terms of his probation by failing to pay
court costs and by failing to complete his public service
work. The court extended the Defendant's probation for
one year and required the Defendant to perform thirty-two
additional hours of public service.
probation violation report was filed with the trial court on
May 23, 2016, alleging that the Defendant tested positive for
marijuana on May 18, 2016, and that a laboratory analysis
confirmed the presence of marijuana in the Defendant's
system on May 20, 2016. An arrest warrant was issued on May
25, 2016. This probation violation allegation is the subject
of the present appeal.
July 20, 2016 revocation hearing, the Defendant pleaded
guilty to violating the conditions of his probation and
requested a hearing for the trial court to determine the
disposition of the probation violation. The Defendant
testified that he tested positive for marijuana and that he
used marijuana because he became scared he had cancer. He
said that he noticed blood in his stool, that the amount
increased, and that he began to think he had colon cancer. He
said that he researched his symptoms and found his symptoms
were consistent with colon cancer and that he had a strong
family history of cancer. The Defendant recalled that on one
occasion he collapsed, was taken to the emergency room, and
underwent a colonoscopy. He said that he did not have cancer
but that eight or nine polyps were removed. The Defendant
stated that he was wrong to use marijuana, that he was not
thinking properly, and that he did not consider his probation
and employment. He requested leniency.
cross-examination, the Defendant testified that at age
seventeen he was convicted of possession of heroin, that the
drugs were not his, and that he did not serve any time in
confinement. He said relative to the original charge in this
case that he admitted to the arresting officers that he
possessed marijuana and that he was going to sell it before
his arrest. He agreed that he admitted during the presentence
investigation that he used marijuana after he pleaded guilty
but before the sentencing hearing. He said he served about
four or five months in confinement before being released on
Defendant testified that his marijuana use at the time he
thought he had cancer was not to self-medicate, that he used
it only once because he was on probation, and that he was not
in the "right frame of mind." He said he received a
letter from his doctor two weeks before the revocation
hearing requesting that the Defendant contact his doctor if
his health or family history changed. ...