Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 17, 2018
from the Criminal Court for Davidson County No. 2014-I-856
Mark J. Fishburn, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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.,
TIMOTHY L. EASTER, JUDGE
and Procedural Background
September 17, 2014, Defendant pled guilty to one count of
sale of more than .5 grams of cocaine. 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.
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.
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."
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.
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.
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.
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 ...