         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 19, 2003

                  STATE OF TENNESSEE v. STEPHON HARDEN

                      Appeal from the Circuit Court for Sullivan County
                    Nos. S40,897; S41,559; S41,910   R. Jerry Beck, Judge



                                  No. E2002-01477-CCA-R3-CD
                                          May 23, 2003

The Appellant, Stephon Harden, appeals from the judgment of the Sullivan County Circuit Court
revoking his probation and remanding him to the Department of Correction. In March of 1999,
Harden pled guilty to two counts of class E felony theft, one count of forgery, aggravated burglary,
and failure to appear. He received an effective six-year sentence to be served in the Department of
Correction. Harden was released following completion of the “boot camp” program and was
administratively granted probation by the Commissioner of Correction. Warrants alleging violations
of his probationary sentence were issued on February 21st and 28th of 2002. Following a hearing, he
was found in violation of his probation and resentenced to the Department of Correction. On appeal,
he argues that the trial court erred by failing to consider alternatives to revocation. Finding no merit
to Harden’s claim, the judgment of the trial court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JOHN
EVERETT WILLIAMS, JJ., joined.

Stephen M. Wallace, District Public Defender; Terry L. Jordan, Assistant Public Defender,
Blountville, Tennessee, for the Appellant, Stephon Harden.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Peter M.
Coughlan, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James
Goodwin, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                              OPINION

                                        Factual Background

       On January 28, 1998, the Appellant was indicted by a Sullivan County grand jury for theft
of property over $500 and forgery, both class E felonies. On July 22, 1998, the Appellant was again
indicted for aggravated burglary, a class C felony, and theft over $500. A third indictment against
the Appellant, dated October 30, 1998, resulted from his failure to appear in court on September 25,
1998, a class E felony. On March 16, 1999, he pled guilty to all five offenses, as a range I standard
offender, and received an effective six-year sentence1 in the Department of Correction. The
Appellant entered the penitentiary system and was placed in the special alternative incarceration unit
or “boot camp” program. After completion of the program on November 20, 2001, he was released
and administratively granted probation by the Commissioner of Correction.

       A warrant was issued on February 21, 2002, alleging that the Appellant had violated
conditions of his release. Specifically, the warrant listed the following violations:

         Violation of Rule #5, “I will work steadily at a lawful occupation. If I become
         unemployed, I will immediately report this to my Probation/Parole Officer and will
         begin to look for another job.” To wit: The defendant quit his job at Skoby’s
         restaurant on 2-14-02 and did not report this to Hay House staff or this officer.

         Violation of Rule #7, “I will allow my Probation/Parole Officer to visit my home,
         employment site, and will carry out all lawful instructions he/she gives. . . .” to wit:
         A) The defendant was instructed to reside in the John R. Hay House and follow all
         of their instructions. The defendant has failed to follow instructions of Hay House
         staff and has committed numerous house infractions to the point of being dismissed
         from the Hay House.

         B) The defendant was administratively placed on Intensive Probation and advised of
         a 6:00 pm- 6:00 am curfew.

                  1) The defendant signed out from the Hay House at 3:30 pm on 2-14-
                  02 and signed back in as returning from work at 1:05 am. The
                  kitchen mgr. at Skoby’s stated that the defendant left the restaurant
                  between 6:00 and 8:00 pm that evening and did not return.
                  2) On 2-15-02, the defendant signed out of the Hay House at 2:00 pm
                  to work and did not return until 12:46 am. The defendant did not
                  work on this date.
                  3) On 2-19-02 the defendant signed out to job search at 7:40 am without
                  permission and did not return until 10:00 pm.


         1
          For the Ja nuary indicted offenses, the Appellant received concurrent sentences of two years for theft of
property over $500 and two years for the forgery conviction. For the July indicted offenses, the Appellant received
concurrent sentences of four years for the aggravated burglary conviction and two years for the theft over $500
conviction. With regard to this sentence for theft over $500, the judgment form reflects a sentence of four ye ars while
the plea agreem ent form reflects an agreed sentence of two years. Regarding the O ctober indicted offense of failure to
appear, the Ap pellant received a sentence of two years. The sentence for the October indicted offense was run
concurrently with the sentences for the January indicted offenses, and the sentences for the January and July indicted
offenses were run co nsecutively to each other, resulting in an effective sentence of six years.

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               4) At 11:00 pm on 2-19-02 the defendant left the Hay House again without
               permission.
               5) The defendant left the Hay House without permission on 2-20-02 at 8:00
               am.

       Violation of Rule #8, “I will not use intoxicants. . . . I will not use or have in my
       possession illegal drugs or marijuana. . . .” to wit: On 1-10-02 at 10:00 am the
       defendant submitted to an On-Trak drug test that was positive for marijuana and
       cocaine. The defendant admitted to smoking a “blunt.” After testing positive for
       cocaine this officer questioned the defendant about the positive cocaine slide and he
       stated that his friends mix the cocaine in with the marijuana cigarette.

On February 28, 2002, another warrant was issued, alleging the following violations:

       Violation of Rule #7, “I will allow my Probation/Parole Officer to visit my home,
       employment site. . . and will carry out all lawful instructions he/she gives. . . .” to
       wit:
       A) The defendant was to abide by the rules of the John R. Hay House and staff. The
       defendant was advised by Ken Whiten of the John R. Hay House to remain at their
       facility until this officer was notified. The defendant left the John R. Hay House
       without the staff’s knowledge or consent.
       B) The defendant was instructed to attend alcohol and drug classes at the Day
       Reporting Center. The defendant failed to attend the Day Reporting Center as
       directed.

       Violation of Rule #8, “I will not use intoxicants. . . . I will not use or have in my
       possession illegal drugs or marijuana. . . .” to wit: On 2-21-02 at 8:10 am the
       defendant submitted to an On-Trak drug test at the John R. Hay House that was
       positive for cocaine.

A revocation hearing was held on May 16, 2002. Regarding the February 21st warrant, the Appellant
was found to be in violation of Rule 5; Rule 7, allegations B3, 4, and 5; and Rule 8. On the February
28th warrant, the Appellant was found to be in violation of Rule 7, allegation A, and Rule 8. The trial
court revoked the Appellant’s probationary status and ordered him to serve the remainder of his six-
year sentence in the Department of Correction. This timely appeal followed.

                                            ANALYSIS

        The Appellant argues that trial court erred “by failing to consider alternatives to revoking
[his] probation.” The Appellant does not contest the grounds supporting revocation; rather, he
argues that the trial court abused its discretion by imposing the original sentence of incarceration
rather than extending the period of probation or modifying the conditions of probation.



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         This court reviews a revocation of probation under an abuse of discretion standard. State v.
Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997) (citing State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980), perm. to appeal
denied, (Tenn. 1981)). This means that the evidence need only show that the trial judge has
exercised "conscientious and intelligent judgment in making the decision rather than acting
arbitrarily." State v. Leach, 914 S.W.2d 104, 107 (Tenn. Crim. App.1995) (citing Stamps v. State,
614 S.W.2d 71, 73 (Tenn. Crim. App. 1980), perm. to appeal denied, (Tenn. 1981)). Thus, in
reviewing the trial court's action, it is our obligation to examine the record and determine whether
the trial court has exercised a conscientious judgment. If the trial court finds by a preponderance of
the evidence that the defendant has violated a condition of his probation, the court has the authority
to revoke the probation and reinstate the judgment as originally entered. Tenn. Code Ann. § 40-35-
311(d).

        In the present case, the Appellant's flagrant abuse of his judicially granted liberty is
indefensible. The primary goal of non-institutional punishment is to provide a period of grace in
order to assist the rehabilitation of a penitent offender. Burns v. United States, 287 U.S. 216, 220,
53 S. Ct. 154, 155 (1932). The record is undisputed that the Appellant continued to use drugs and
violated, with impunity, the conditions of his probation. His conduct demonstrates that he is
unrepentant. In the case before us, the trial court was statutorily authorized to reinstate the
Appellant's original six-year Department of Correction sentence. Accordingly, no abuse of discretion
is shown.

                                          CONCLUSION

        Based upon the foregoing, we conclude that the trial court did not abuse its discretion in
ordering revocation of the Appellant’s six-year sentence. The judgment of the Sullivan County
Circuit Court is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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