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State v. Fawver

Court of Criminal Appeals of Tennessee, Knoxville

November 14, 2019

STATE OF TENNESSEE
v.
TODD FAWVER

          Assigned on Briefs February 26, 2019

          Appeal from the Criminal Court for Knox County Nos. 111411, 111725 Steven W. Sword, Judge

         The Appellant, Todd Fawver, appeals the trial court's revocation of his probation and denial of his motion to reduce his sentence, arguing that his violation was merely "technical" and that he should have been given a second chance at alternative sentencing. Upon review, we affirm the judgment of the trial court.

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

          David H. Dupree, Knoxville, Tennessee, for the Appellant, Todd Fawver.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Charme P. Allen, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          NORMA McGEE OGLE, JUDGE

         I. Factual Background

         On September 13, 2017, the Knox County Grand Jury returned indictment number 11411, which charged the Appellant with two counts of violation of the sexual offender registration law. On November 1, 2017, the Knox County Grand Jury returned indictment number 11725, which charged the Appellant with theft of property valued at least $2, 500 but less than $10, 000; criminal impersonation; driving on a revoked driver's license; and violation of the sexual offender registration law.

         On February 2, 2018, the Appellant pled guilty to all charges in both indictments. Pursuant to the plea agreement, he was sentenced as a career offender to concurrent sentences of six years for the convictions in indictment number 11411. On indictment number 11725, the Appellant was sentenced to six years, 6 months, 6 months, and 6 years, respectively. The six-year sentence for theft was to be served concurrently with the remaining sentences on indictment number 11725 but consecutively to the sentences on indictment number 11411 for a total effective sentence of twelve years. The trial court ordered the Appellant to serve ninety days in confinement before being released on probation. However, because of jail credits the Appellant accrued from the time of his arrest until his guilty pleas, the Appellant was released on probation immediately after the pleas.

         On March 20, 2018, a probation violation warrant was issued alleging that on March 13, 2018, the Appellant tested positive for amphetamine and methamphetamine. At a hearing on April 5, 2018, the Appellant admitted that he had violated the terms of his probation, did not contest that he had failed a drug screen, and requested "a hearing on what should happen next." The trial court continued the hearing until the probation office could prepare a post-sentence investigation report documenting the Appellant's criminal history. The trial court also gave the Appellant the opportunity to inquire about drug treatment providers who might be willing to accept him.

         At the May 10, 2018 hearing, the trial court noted that the Appellant was not eligible for drug court because of his prior conviction of a sexual offense. The court further noted that the Appellant's presence on the sexual offender registry severely limited the court's alternative sentencing options. Defense counsel stated that he had received a copy of the Appellant's post-sentence investigation report "moments before" the hearing and that he had "flip[ped] through it. Haven't really read it yet." Defense counsel contended that the Appellant had not had the opportunity to obtain drug treatment, that the Appellant and society would benefit from the Appellant's receiving drug treatment, and that the majority of the Appellant's criminal history involved drug abuse. The State noted ...


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