             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                          March 22, 2005 Session

                STATE OF TENNESSEE v. DAVID WAYNE FOUNTAIN

                            Appeal from the Circuit Court for Rhea County
                              No. 15622     Thomas W. Graham, Judge



                             No. E2004-01226-CCA-R3-CD - June 28, 2005


The defendant, David Wayne Fountain, appeals from the Rhea County Circuit Court’s revocation
of his probation. Because the record supports the revocation of probation, we affirm the revocation;
however, to avoid a length of confinement that exceeds the defendant’s release eligibility as a Range
I offender, we modify the post-revocation terms of the manner of service of the defendant’s two-year
sentence.

             Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed as Modified.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JERRY L. SMITH , JJ., joined.

Larry G. Roddy, Sale Creek, Tennessee, for the Appellant, David Wayne Fountain.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; J.
Michael Taylor, District Attorney General; and Jim Pope, Assistant District Attorney General, for
the Appellee, State of Tennessee.

                                                     OPINION

                On May 3, 2002, the trial court accepted the defendant’s blind guilty plea to attempt
to commit theft of property valued in excess of $1,000, a Class E felony, and the court entered
judgment sentencing the defendant to a Range I sentence of two years, to be served via four months
in confinement and the balance of the sentence on probation. Following an unsuccessful appeal of
his sentence, the defendant served his confinement in the Rhea County jail from September 8, 2003
to October 13, 2003.1


         1
          This court’s opinion affirming the defendant’s sentence contains a summary of the offense that resulted in the
conviction:

                                                                                                          (continued...)
               On March 10, 2004, the state filed a probation violation report, alleging that the
defendant failed to report to his probation officer following his release from custody, failed to inform
his probation officer of his change of address, failed to complete 100 hours of community service,
and failed to pay fines, restitution and costs totaling $1,190. The report further alleged that the
defendant was in Calhoun County, Arkansas.

              On May 7, 2004, the trial court entered an order revoking the defendant’s probation
and ordered him to serve an additional12 months in confinement, followed by two years’ probation.

                In his timely appeal, the defendant claims that the decision to revoke probation was
unsupported by sufficient evidence. Specifically, the defendant claims that his failure to report
following his four months’ confinement resulted from the probation office’s failure to inform him
of the need to report.

                In the probation revocation hearing, Tim Hickey testified that he became a probation
officer after the defendant had been prematurely released from jail. Mr. Hickey testified that the
defendant failed to report to anyone in the probation office following his release from jail on October
13, 2003. Mr. Hickey testified that, in fact, he was unaware that the defendant had been released
from the Rhea County jail until he received a call from an Arkansas sheriff’s office informing him
that the defendant was in that state. Mr. Hickey testified that no one gave the defendant permission
to go to Arkansas.

               Mr. Hickey testified that, prior to the filing of the revocation report, the defendant had
paid none of his fines, restitution, or costs and had fulfilled none of the community service required
as a condition of his probation. After the state filed the revocation report, the defendant paid his


        1
            (...continued)
                     The defendant came to East Tennessee as a member of a Christian singing group.
                     In this capacity, he performed in a church attended by the victim. He befriended the
                     victim and her daughter. Some months after they first became acquainted, the
                     defendant told the victim that he was raising money for a hospitalized child’s
                     medical treatment. He claimed that he had personally donated $200,000 to the
                     cause, and he asked the victim for $6,000 so that the child could receive a liver
                     transplant. He named two hospitals at which the child had been treated. The victim
                     checked with both hospitals, and she was advised that no child by the name she had
                     been given by the defendant had ever been a patient at either facility. The victim
                     contacted law enforcement officials, and an undercover operation was planned
                     whereby an agent from the Tennessee B ureau of Investigation would pose as a
                     minister and accompany the victim in delivering the requested funds to the
                     defendant. This ruse took place, after which the defendant was arrested. It was
                     later determined that the bank account that the defendant had identified to the victim
                     as the location to which the funds would be deposited was in the name of the
                     defendant’s live-in girlfriend.

State v. David Fountain, No. E2002-01066-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Knoxville, Apr. 22, 2003),
perm. app. denied (Tenn. 2003).

                                                             -2-
financial obligations to the court by mail. Mr. Hickey testified that the defendant returned to
Tennessee but performed none of his community service hours. Upon his return, the trial court
ordered the defendant to serve the remainder of his original four-month confinement.

                On cross-examination, Mr. Hickey testified that the probation office had no records
to indicate that anyone had contacted the defendant at any time following his conviction. Indeed,
no file on the case had been opened in the probation office until near the time of the revocation
proceedings, and Mr. Hickey was unaware that the defendant was a probationer on Mr. Hickey’s
caseload until after the call from the Arkansas sheriff. Mr. Hickey was also unaware whether anyone
in the probation office had informed the defendant of the rules of his probation. He testified that,
when probation is preceded by a term of confinement, someone from the probation office usually
contacts the prisoner while he is in jail, but no record of such a contact exists in the defendant’s case.
Mr. Hickey agreed that, when a defendant is taxed with costs and other payments, the defendant is
expected to contact the clerk’s office to arrange payment. Typically, no bill of costs is sent to the
defendant by the probation office, but Mr. Hickey did not know whether a bill would have been sent
by the clerk’s office.

              Mr. Hickey agreed that, upon being advised of his obligations in Tennessee, the
defendant voluntarily returned to Rhea County from Arkansas.

                Through his counsel, the defendant introduced portions of the transcript from the
sentencing hearing. The transcript revealed that defense counsel stated that the defendant would
need to fulfill his requirement of community service in Texas, and the trial judge approved
supervision of the requirement in Texas, subject to the responsibility being accepted in that state.
The transcript indicated that the trial judge added, “I’m sure if that’s where he’s going to live[,] his
probation will be down there.”

                 The defendant testified in the revocation hearing that, when he was released from his
original confinement after serving only 40 days, he believed that he had completed his 120-day
confinement upon serving 30 percent of the term. He testified that, following his conviction, no one
told him to contact the probation office and that no one from the office contacted him. He testified
that he performed his community service work on his own while in Arkansas, doing “[h]ome repairs,
yard repairs, and [work with] different law enforcement agencies working with juveniles and also
with some adult cases.” He received no billing for costs, fine, and restitution, and that following the
filing of the revocation report, he paid the amounts due and returned to Tennessee. He then served
the balance of the 120-day confinement term, with credit for “good time.”

                On cross-examination, the defendant denied that he had talked the jailer into releasing
him in October 2003 after serving 40 days. He testified that he asked the jailers whether “there [was]
anything else that [I] needed to do and I was told three times, no, that I had served my time and that
I was being released and . . . could go.” One of the jailers with whom he spoke, Jeff Knight, had
been a probation officer before assuming duties as a jailer. The defendant testified that, following



                                                   -3-
his release, he went to his home in Texas. After working with a minister in Texas for six or seven
months, the defendant moved to Arkansas as part of an “outreach” ministry.

                 The state sought to impeach the defendant on cross-examination by asking him about
the basis of a civil complaint filed against him in Arkansas. The defendant admitted that, while he
was in Arkansas, a woman paid $91,000 to purchase a motor home for him. Although the defendant
denied misrepresenting anything to this benefactor, he acknowledged that she later claimed that he
had defrauded her and claimed that he had promised that, if she affiliated with his evangelical
crusades, “she would meet a wealthy husband . . . and . . . would not need these funds any more.”

                 After the defendant testified, the court allowed the state to call Jeff Knight as a
witness. He testified that he was a probation officer at the time the defendant’s sentence was
imposed and that he began serving as a jailer by the time the defendant was confined following his
appeal. He testified generally that, on the day of sentencing, a defendant should be instructed to
check in with the probation officer. Although Mr. Knight was present in court when the defendant
was sentenced, he did not recall, however, getting any information from him at that time. He denied
that he told the defendant at the time of his release that he had no other obligations in the case. Mr.
Knight testified that he told the defendant, “[B]efore he left he needed to make sure that he contacted
the probation office to see if there is any paperwork they . . . needed to get signed by him.”

               Next, the defendant’s mother testified in his behalf that, in the courtroom following
the sentencing hearing, no one spoke to the defendant about reporting for probation. She testified
that the defendant’s mail came to her home in Milan, Tennessee, because he traveled so much. She
received neither any bills of costs from the trial court clerk nor any correspondence from the
probation office.

              Jeff Carter testified that, while in Arkansas with him, the defendant spent “a couple
hundred hours” helping street people with sleeping accommodations and food.

                After hearing the testimony and argument of counsel, the trial court made extensive
findings. The court accredited the testimony of Jeff Knight and found that “Mr. Fountain is a person
[who] . . . is not truthful.” Essentially, the court found that the defendant was accountable for his
obligation to fulfill the conditions of probation and rejected the claim that he was diverted from his
obligation by Mr. Knight. The court revoked the defendant’s probation and ordered him to serve one
year in addition to the four months previously served. The court ordered that supervised probation
continue for two years following the confinement.

                The standard of review upon appeal of an order revoking probation is the abuse of
discretion standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order for an abuse of
discretion to occur, the reviewing court must find that the record contains no substantial evidence
to support the conclusion of the trial judge that a violation of the terms of probation has occurred.
Id.; State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The trial court is required only
to find that the violation of probation occurred by a preponderance of the evidence. Tenn. Code


                                                 -4-
Ann. § 40-35-311(e) (2003). Upon finding a violation, the trial court is vested with the statutory
authority to “revoke the probation and suspension of sentence and cause the defendant to commence
the execution of the judgment as originally entered.” Id. Furthermore, when probation is revoked,
“the original judgment so rendered by the trial judge shall be in full force and effect from the date
of the revocation of such suspension.” Id. § 40-35-310. The trial judge retains the discretionary
authority to order the defendant to serve the original sentence. See State v. Duke, 902 S.W.2d 424,
427 (Tenn. Crim. App. 1995).

               In the present case, substantial evidence supports the trial court’s conclusion that the
defendant violated the terms of his probation by his failing to report for supervision. The trial court’s
determinations that Mr. Knight testified truthfully and that the defendant did not testify truthfully
dispose of the claim on appellate review that state agents misdirected the defendant into leaving
Tennessee without contacting the probation office. Thus, we affirm the court’s decision to revoke
the defendant’s probation.

                That said, we must, however, modify the terms of the manner of service of the two-
year sentence that was imposed upon revocation. This court has consistently held that a confinement
term may not exceed the release eligibility date for felony sentences of two years or less. See, e.g.,
Jonathan Thornton v. State, No. E2003-00393-CCA-R8-PC, slip op. at 3 (Tenn. Crim. App.,
Knoxville, Mar. 17, 2003); State v. Stephen Michael Ware, No. E2000-01952-CCA-R3-CD, slip op.
at 4-5 (Tenn. Crim. App., Knoxville, Aug. 7, 2001); State v. John W. Hill, No. 01C01-
9802-CC-00072, slip op. 4-5 (Tenn. Crim. App., Nashville, Feb. 25, 1999); see also Tenn. Code
Ann. § 40-35-501(a)(3) (2003). The release eligibility date for a Range I, standard offender
receiving a two-year sentence is 219 days, less certain sentence credits. See John W. Hill, slip op.
at 5. In the present case, the Range I defendant had previously served 120 days of the two-year
sentence, less sentence credits. Thus, the trial court had authority to order further confinement for
only up to 99 additional days.

              Accordingly, the judgment of the trial court is affirmed but modified; the confinement
term of the sentence upon revocation is modified to 99 days. The defendant shall remain on
supervised probation for a period of two years following his release from confinement. See Tenn.
Code Ann. § 40-35-303(c) (2003).




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                  -5-
