Court of Criminal Appeals of Tennessee, Knoxville
from the Circuit Court for Sevier County No. CR15034 Don R.
Ash, Senior Judge
Defendant, Brian Allen Spears, appeals as of right from the
Sevier County Circuit Court's judgment revoking his
community corrections sentence and ordering the Defendant to
serve the remainder of his sentence in confinement. The
Defendant argues that the trial court abused its discretion
in ordering the sentence served in confinement. The State has
filed a motion to affirm the trial court's judgment
pursuant to Rule 20 of the Rules of the Tennessee Court of
Criminal Appeals. Following our review, we conclude that the
State's motion is well-taken and affirm the order of the
R. App. P. 3; Judgment of the Circuit Court Affirmed Pursuant
to Rule 20, Rules of the Court of Criminal Appeals.
C. Miller, District Public Defender; and Aaron M. Kimsey,
Assistant Public Defender, Sevierville, Tennessee, for the
appellant, Brian Allen Spears.
Herbert H. Slatery III, Attorney General and Reporter;, Renee
W. Turner, Senior Counsel; James B. Dunn, District Attorney
General; and Ronald C. Newcomb, Assistant District Attorney
General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ.,
KELLY THOMAS, JR., JUDGE
September 14, 2010, the Defendant entered an open plea to one
count of sale of .5 grams or more of cocaine. At sentencing,
the trial court imposed a sentence of eight years'
incarceration suspended after the service of one year of
confinement with the balance to be served on community
corrections supervision. As additional conditions, the
Defendant was ordered to pay a $2, 000 fine plus court costs,
perform 50 hours of community service, complete a 60-day
inpatient treatment program and maintain employment. On
August 24, 2012, a violation warrant issued alleging that the
Defendant failed to report to his community corrections
officer, complete his community service hours, pay any fines
or costs, or maintain employment. On June 21, 2017, the
Defendant pleaded guilty to the violations. The Defendant
explained that he had experienced the death of several close
family members and had moved with his mother into his
grandmother's home, but he admitted that he had failed to
report for over four years. He asked to be returned to
community corrections supervision. The trial court found that
the Defendant had absconded and ordered the balance of the
sentence to be served in confinement.
Defendant contends that the trial court abused its discretion
by ordering him to serve the remainder of his sentence in
confinement. The State argues that the record supports the
trial court's judgment.
Tennessee Supreme Court has held that the same principles
that apply in the revocation of probation also apply in the
revocation of community corrections. State v.
Harkins, 811 S.W.2d 79, 83 (Tenn. 1991). The revocation
of community corrections, like the revocation of probation,
rests within the sound discretion of the trial court.
Id. An appellate court will uphold a trial
court's decision to revoke probation or community
corrections absent an abuse of discretion. State v.
Beard, 189 S.W.3d 730, 735 (Tenn. Crim. App. 2005);
State v. Webb, 130 S.W.3d 799, 842 (Tenn. Crim. App.
2003) (quoting Harkins, 811 S.W.2d at 82).
community corrections program was created as an alternative
to incarceration that provides flexibility and promotes
accountability, while reducing the number of "nonviolent
felony offenders" in the state prison system. Tenn. Code
Ann. § 40-36-104; see also State v. Estep, 854
S.W.2d 124, 126-27 (Tenn. Crim. App. 1992) ("[T]he
community corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet
serve legitimate societal purposes."). While the program
provides defendants with freedom that would otherwise be
removed if the defendant had been incarcerated, there are
specific remedies available to the trial court to ensure that
those who fail to comply with the program are sufficiently
penalized for their noncompliance. See Tenn. Code
Ann. § 40-36-106(e)(4).
to Tennessee Code Annotated section 40-35-311(e), the trial
court is required only to find that the violation of a
community corrections sentence occurred by a preponderance of
the evidence. Once there is sufficient evidence to establish
a violation of a community corrections sentence, the trial
court has the authority to revoke the community corrections
sentence. See Tenn. Code Ann. § 40-36-106(e).
The trial court may then "resentence the defendant to
any appropriate sentencing alternative, including
incarceration, for any period of time up to the maximum
sentence provided for the offense committed, less any time
actually served in any community-based alternative to
incarceration." Tenn. Code Ann. § 40-36-106(e)(4).
trial court needed only to find that a revocation of the
Defendant's sentence was warranted by a preponderance of
the evidence. The Defendant does not dispute that he was in
violation of the terms of his sentence and does not contest
the trial court's revocation of his community corrections
sentence. The Defendant admitted that he did not report to
his community corrections officer for over four years. Having
revoked the Defendant's community corrections sentence,
it was within the trial court's discretion to order the
Defendant to serve the remainder of his sentence in