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State v. Franklin

Court of Criminal Appeals of Tennessee, Nashville

March 27, 2018

STATE OF TENNESSEE
v.
BRANDON LACY FRANKLIN

          Assigned on Briefs January 17, 2018

          Appeal from the Criminal Court for Davidson County No. 2014-I-856 Mark J. Fishburn, Judge

         Defendant, Brandon Lacy Franklin, appeals the trial court's revocation of his community corrections sentence and imposition of an increased sentence of ten years' incarceration. Upon our review of the record, we affirm the judgment of the trial court.

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

          Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal), Chris Street-Razbadouski, and Jared Mollenkof (at hearing), Assistant District Public Defenders, for the appellant, Brandon Lacy Franklin.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Glenn R. Funk, District Attorney General; and Brian Ewald and Jan Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Factual and Procedural Background

         On September 17, 2014, Defendant pled guilty to one count of sale of more than .5 grams of cocaine.[1] The State summarized the facts of the case as follows:

[O]n May 20th of 2014, the Hermitage Crime Suppression Unit of the Metro Nashville Police Department utilized a confidential informant ["CI"] to conduct a narcotics operation in the Family Dollar parking lot here in Davidson County. There were phone conversations and text messages with the defendant who the CI knew as B-Dog. They set up an agreement for a $240 cocaine sale. Through different events, they ultimately met up at a location in Davidson County. There was 2.4 grams of cocaine that was sold for approximately $240.

         Defendant was sentenced to eight years on supervised probation with the first year to be spent in an in-patient drug treatment program through Safe Harbor.

         About five months later, on February 12, 2015, a probation violation warrant was issued alleging that Defendant had been arrested for simple possession and possession of drug paraphernalia, had failed to report his new arrest, had left the Safe Harbor program without permission, and other violations. On April 30, 2015, Defendant waived his right to a hearing and conceded that he had violated probation. According to Defendant, he left the Safe Harbor program because of a conflict with his roommates. The trial court accepted the parties' agreement that Defendant be reinstated to probation with the added condition that he complete the 180-day Re-Entry drug treatment program. The trial court wondered whether they were "just postponing the inevitable" and whether Defendant would "be back here in about three or four months."

         About five months later, on October 7, 2015, a second probation violation warrant was issued alleging that Defendant had left the Re-Entry program after only a month, had given a false address, and other violations. On November 5, 2015, Defendant waived his right to a hearing and conceded that he had violated probation. The trial court again reinstated Defendant to probation and accepted the parties' agreement for him to enter the 4:13 Strong residential treatment program, which was to begin in January. Pending admission to the program, Defendant was ordered to live with his mother and submit to weekly drug screens.

         One month later, on December 8, 2015, a third probation violation warrant was issued alleging that Defendant had tested positive for cocaine and marijuana three times since being reinstated to probation. On January 6, 2016, the trial court continued the probation violation hearing to February 10, 2016, and ordered that Defendant submit to daily drug tests until his acceptance into a residential treatment program. On February 1, 2016, an amended probation violation warrant was issued alleging that Defendant tested positive for cocaine and marijuana once and had failed to report for testing three times. Defendant did not appear for the February 10 court date, and the amended warrant was not executed until Defendant was arrested on May 13, 2016.

         On June 6, 2016, the trial court held a probation violation hearing. Defendant admitted that he stopped reporting for his court-ordered drug screens and that he did not get into the 4:13 Strong program. Defendant testified that he was unable to complete the initial "mental toughness week" of the 4:13 Strong program because he had been locked up for all except the last two days. Defendant stated that he was living with his mother, working construction, and "just staying out of trouble." Defendant admitted that he was still using drugs and had a drug problem. As to his prior attempts at drug treatment while on probation, Defendant stated that he had left Safe Harbor after less than two months because "it was in a drug neighborhood" and that he had been kicked out of Re-Entry because he did not have a job. Defendant characterized those programs as halfway houses rather than treatment programs and asked the trial court to give him another chance with a treatment program through Samaritan Recovery Center.

         On cross-examination, Defendant explained that he tested positive immediately after his reinstatement in November because he had used drugs while in jail and that his subsequent positive drug screens were due to his continued drug use. Defendant explained that he tested positive in January because he used drugs after failing to get into the 4:13 Strong program and that he subsequently stopped reporting for testing. Defendant testified that he would rather go to the Samaritan program instead of Judge Norman's drug court out of Criminal Court Division IV because he had heard that "it wasn't a good program" and that people "ran away from it." The trial court asked ...


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