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State v. Smith

Court of Criminal Appeals of Tennessee, Knoxville

May 4, 2018

STATE OF TENNESSEE
v.
ELIJAJUAN SMITH

          Assigned on Briefs April 24, 2018

          Appeal from the Criminal Court for Hamilton County No. 295465 Tom Greenholtz, Judge No. E2017-01086-CCA-R3-CD

         The Defendant, Elijajuan Smith, appeals the Hamilton County Criminal Court's order revoking his probation for his burglary of a business and vandalism convictions and ordering him to serve his effective four-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his probation. W e affirm the judgment of the trial court.

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

          Julie Moya, Chattanooga, Tennessee, for the appellant, Elijajuan Smith.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Neal Pinkston, District Attorney General; and Bates Bryan, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         On August 25, 2015, the Defendant pleaded guilty to burglary of a business and to vandalism, and the trial court sentenced the Defendant to an effective four years' probation. The court ordered this sentence be served consecutively to a ten-year probationary sentence for an aggravated burglary conviction in an unrelated case.[1] On August 23, 2016, a probation violation report was filed with the trial court, alleging that the Defendant had committed technical violations, including failure to show proof of employment, failure to report to his probation officer, and failure to pay court costs, supervision fees, and restitution. An amended probation report was filed with the court on August 25, 2016, alleging that on March 10, 2016, the Defendant had been arrested for criminal trespass, that he failed to report his arrest to his probation officer, that he failed to provide proof of employment, that he failed to report to his probation officer, and that he failed to pay court costs, supervision fees, and restitution. On August 26, 2016, a probation violation warrant was issued.

         At the revocation hearing, probation officer Alex Finlay testified that although the Defendant's probation expired in case number 272276 on September 30, 2015, the Defendant's supervision involved probation revocations. Ms. Finlay said that the Defendant was placed on supervised probation, that the probation was revoked on November 5, 2012, that the Defendant was confined in the jail until February 1, 2013, and that the Defendant was released to supervised probation. Ms. Finlay said that on September 10, 2013, the Defendant's probation was revoked and that the court placed him on community corrections. Ms. Finlay said that on July 9, 2014, the Defendant was removed from community corrections and placed on unsupervised probation, which was later revoked on August 25, 2015. Ms. Finlay said, though, that the Defendant was placed on enhanced probation until the expiration of the ten-year sentence.

         Ms. Finlay testified that the Defendant's probation at the time of the revocation hearing applied only to case number 295465 and that the Defendant had violated the conditions of his release. Ms. Finlay said that on March 10, 2016, the Defendant was arrested for criminal trespass and that the Defendant did not report the arrest. Ms. Finlay said that the Defendant failed to provide employment verification for July and August 2016 and had failed to report to the probation office since April 14, 2016. Ms. Finlay noted that although the Defendant appeared at the probation office on June 30, 2016, the Defendant submitted his employment verification and left without speaking to her. Ms. Finlay said that June 30, 2016, was her last contact with the Defendant. Ms. Finlay said that the arrest warrant was issued on August 26, 2016, and that the Defendant was arrested on February 15, 2017. Ms. Finlay said that the Defendant had failed to pay toward court costs and supervision fees and that on December 28, 2015, the Defendant submitted his only payment for $18.75 toward restitution, leaving a balance of $781.25.

         Ms. Finlay testified that she last spoke with the Defendant on April 14, 2016, that she attempted to contact the Defendant to schedule meetings, and that the Defendant reported having transportation issues. Ms. Finlay said that the Defendant reported to her for his initial orientation, three days after orientation, and one additional time to discuss a positive drug screen and to obtain drug treatment. Ms. Finlay said that between January and June 2016, she was on leave, that the Defendant had another probation officer during that time, and that the officer conducted home visits and attempted to schedule meetings at the probation office. Ms. Finlay said that the Defendant met with this probation officer on April 15, 2016, and that the Defendant should have reported to this officer until June 2016, when Ms. Finlay returned to work. Ms. Finlay said that June 2016 was the last time the Defendant came to the probation office, although she unsuccessfully attempted to contact the Defendant by telephone and in person at the Defendant's home.

         On cross-examination, Ms. Finlay testified that the Defendant's primary problem was the failure to report to the probation office and that the Defendant's failure to report prevented her from placing the Defendant into a drug treatment program to bring him into compliance with the rules of probation. Ms. Finlay agreed that she did not plan to file a probation violation report simply because the Defendant did not report but said that she planned to file the violation report if the Defendant did not comply with the rules of probation. Ms. Finlay said that she never immediately filed a violation report because she wanted to do what she could to "keep him compliant." Ms. Finlay did not have any drug screen reports or documentation of her attempts to contact the Defendant.

         Elonda Black, the Defendant's grandmother, testified for the defense that the Defendant had three young children. Ms. Black said that the Defendant had been without transportation for a while and that the Defendant had used the bus. She said that she had driven the Defendant to find employment "plenty of times." She thought the Defendant was "waiting to go back to the chicken house, " although she did not know if management was holding a position for the Defendant until the resolution of the revocation hearing. Ms. Black said that she had retired in January 2017 and that she would ensure the Defendant maintained his appointments with his probation officer. On cross-examination, Ms. Black testified that the ...


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