        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 13, 2016

             STATE OF TENNESSEE v. ERICKA ALICIA SMITH

                Appeal from the Criminal Court for Davidson County
                  No. 2014-B-1816 Cheryl A. Blackburn, Judge
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             No. M2016-00286-CCA-R3-CD – Filed September 20, 2016
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Defendant, Ericka Alicia Smith, received a twelve-year sentence to be served on
Community Corrections after pleading guilty to attempted aggravated child neglect.
After holding a hearing, the trial court determined that Defendant violated the conditions
of her alternative sentence and ordered her to serve the remainder of her sentence in
confinement. On appeal, Defendant argues that the trial court abused its discretion by
refusing to impose another alternative sentence. We affirm the judgment of the trial
court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Dawn Deaner, District Public Defender; Emma Rae Tennent (on appeal) and J. Michael
Engle (at hearing), Assistant Public Defenders, for the appellant, Ericka Alicia Smith.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General, Senior Counsel; Glenn R. Funk, District Attorney General; and Robert
Jones, Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       This case arose from the death of Defendant’s seven-month-old son. Defendant
pled guilty to attempted aggravated child neglect, a Class B felony, as a standard
offender. The trial court held a sentencing hearing to determine the length and manner of
service of her sentence.
       At the sentencing hearing, Defendant presented proof that she was a victim of
domestic violence, that she experienced depression, and that she possessed an intellectual
disability. An expert in the field of social work recommended that Defendant be placed
on Community Corrections to receive mental health treatment. Defendant testified that
she completed fifteen corrective programs since the incident in this case. She also
acknowledged that she was drinking alcohol almost daily before she was arrested.

       The trial court imposed a twelve-year sentence to be served on Community
Corrections. Although Defendant was admitted into two different on-site rehabilitative
programs, the trial court found that only one program could adequately supervise and
treat Defendant. Consequently, Defendant’s sentence contained the special conditions
that she participate and remain in The Next Door rehabilitation program, that she procure
and maintain mental health treatment, and that she have no unsupervised contact with
children.

        Less than two months later, a violation warrant was issued based on Defendant’s
discharge from The Next Door for violating program rules by possessing a cell phone and
non-prescribed pills. The trial court held a revocation hearing on the violation
allegations. Defendant’s case manager at The Next Door testified that Defendant was
informed of all of the program rules at the beginning of her program. Subsequently, a
random search of Defendant’s room yielded a cell phone hidden behind clothing in
Defendant’s closet and two non-prescribed pills on Defendant’s bed stand. Possession of
these items by Defendant was a violation of the program’s rules. Defendant said those
items belonged to her roommate. However, another staff member later informed the case
manager that Defendant had been observed using a cell phone. The case manager also
testified that Defendant missed several of her weekly case management sessions. On one
occasion, Defendant arrived for the last ten minutes of a one-hour-long group session,
explaining that she was upstairs in her room. When she did attend meetings, Defendant
did not say much and usually did not actively participate.

       However, the case manager confirmed that Defendant appeared to be attending
Alcoholics Anonymous (AA) meetings four times per week. The case manager also
confirmed that Defendant secured employment and was working without problems.
Defendant was receiving mental health treatment and medication through the program.
Prior to being discharged, Defendant was warned repeatedly about her “compliance
issues.” Once a participant is discharged from The Next Door, the organization’s policy
generally prohibits readmission.

        Defendant testified that she was working full-time at a restaurant while she was at
The Next Door. She explained that she was having some trouble adjusting to the
program because she “was new to it.” Although she was taking an anti-depressant, she
felt that her depression was worsening. Defendant was scheduled to visit a psychiatrist,
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but she was discharged before the appointment occurred. Defendant testified that she
was attending off-site AA programs four times per week.

       Defendant admitted that the cell phone found in her room belonged to her.
However, Defendant contended that she kept the cell phone “for safety” because she was
routinely walking back to The Next Door around 9:00 p.m. after completing her AA
meetings. Defendant became afraid for her safety after a female participant was followed
by two men while returning to The Next Door. Defendant maintained that the pills found
on her bed stand belonged to her roommate.

       Once discharged from The Next Door, Defendant informed her Community
Corrections officer that she was no longer there. On the same day, Defendant moved to
another rehabilitation program called Restoration House. She remained at this program
until she was served with the violation warrant. Restoration House indicated that it was
willing to readmit Defendant to its program.

       After hearing the proof, the trial court found that Defendant violated the terms of
Community Corrections and ordered her sentence into effect. Defendant timely filed a
notice of appeal to this Court, in which she argues that the trial court abused its discretion
by ordering her twelve-year sentence into effect. The State maintains that the trial court’s
decision was proper and within its discretion.

       Community Corrections is a “community based alternative[] to incarceration”
available to certain “nonviolent felony offenders.” T.C.A. § 40-36-103. A trial court has
the discretion to revoke a defendant’s Community Corrections sentence upon a finding by
a preponderance of the evidence that the defendant has violated the conditions of
Community Corrections. See T.C.A. § 40-35-311(e)(1); T.C.A. § 40-36-106(e)(4). Proof
of a violation need not be established beyond a reasonable doubt but must be sufficient to
allow the trial court “to make a conscientious and intelligent judgment.” State v. Shaffer,
45 S.W.3d 553, 554 (Tenn. 2001). If the trial court determines that a violation has
occurred, the court has the authority to revoke the Community Corrections sentence and
may “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.” T.C.A. § 40-36-106(e)(4). The trial court’s decision to revoke a
Community Corrections sentence is subject to an abuse of discretion standard of review.
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown if the
record is devoid of substantial evidence to support the conclusion that a violation has
occurred. Id.

       Defendant does not dispute that the evidence was sufficient to establish that she
violated the terms of her Community Corrections sentence. Indeed, there was ample
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evidence to support that finding. Instead, Defendant maintains that she should have
received a second chance to comply with the conditions of an alternative sentence.
However, Defendant is not entitled to such leniency. See State v. Jeffrey A. Warfield, No.
01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999) (“[A]n
accused, already on probation, is not entitled to a second grant of probation or another
form of alternative sentencing.”), perm. app. denied (Tenn. June 28, 1999). Defendant
characterizes her violation as minor, but the evidence demonstrates that this was more
than a small, technical violation. Defendant routinely missed important meetings with
her case manager. She showed up to group therapy sessions late and did not actively
participate. More importantly, Defendant was found in possession of pain medication
that was not prescribed for her, and she possessed a cell phone in violation of the
program’s rules. Although Defendant had other options for rehabilitation programs
before and after she began her Community Corrections sentence, the trial court carefully
considered what conditions Defendant needed in order for her to be rehabilitated. The
trial court determined that The Next Door was the only suitable program for Defendant.
When Defendant was discharged from that program, the trial court was not convinced
that another alternative sentence was warranted.

       Defendant argues that the trial court applied an incorrect and stricter standard
during its revocation analysis because it mistakenly believed that Defendant was placed
on Community Corrections based on the “special needs” provision provided in Tennessee
Code Annotated section 40-36-106(c). However, we disagree with that assertion. The
record does not indicate that the trial court applied an improper legal standard. Instead,
the record demonstrates that the trial court gave thorough consideration to Defendant’s
case, and we cannot say that the trial court abused its discretion by ordering the original
sentence into effect. Defendant is not entitled to relief.



                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




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