                                                                                       02/07/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                        Assigned on Briefs October 29, 2019

                STATE OF TENNESSEE v. GREGORY COOK

                  Appeal from the Circuit Court for Blount County
                    No. C25464 Tammy M. Harrington, Judge
                     ___________________________________

                          No. E2019-00257-CCA-R3-CD
                      ___________________________________


The defendant, Gregory Cook, appeals the order of the trial court revoking his probation
and ordering him to serve his original four-year sentence in confinement. Upon review
of the record, we conclude the trial court did not abuse its discretion in finding the
defendant violated the terms of his probation, and the imposed sentence is proper.
Accordingly, the judgment of the trial court is affirmed.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J. and D. KELLY THOMAS, JR., J., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal) and Mack Garner, District Public
Defender (at trial) for the appellant, Gregory Larue Cook.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Mike Flynn, District Attorney General; and Tiffany Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                            Facts and Procedural History

       On November 6, 2017, the defendant, Gregory Cook, pleaded guilty to aggravated
assault for threatening to behead his stepfather and his stepfather’s dog with a hatchet.
As a result of his plea, the defendant received a four-year sentence with the Department
of Correction, suspended to supervised probation after serving fifty days in confinement.
As conditions of his probation, the defendant was required “to take the Batterer’s
Intervention Program, complete an a[lcohol] and d[rug] assessment, [complete] 100 hours
of community service, and have no contact with the victim.”

       A probation violation warrant was issued for the defendant’s arrest on November
16, 2018. According to the violation report, the defendant violated the terms of his
probation by: 1) failing to report as instructed for an alcohol and drug assessment on July
25, 2018, August 22, 2018, and September 19, 2018; 2) testing positive for amphetamine
and methamphetamine and admitting to the use of the same; 3) failing to make “a single
payment towards his court costs or supervision fees;” 4) failing to obtain an alcohol and
drug assessment as order by the court. A revocation hearing was held on January 7,
2019.

       At the revocation hearing, Ms. Sylvia Popova, a probation officer with the
Department of Correction, testified the defendant was assigned to her in November 2017.
While the defendant reported as instructed and was employed, the defendant failed to
report on three separate occasions for an alcohol and drug assessment. Ms. Popova also
stated this was the defendant’s second probation violation. On April 3, 2018, the
defendant’s probation was violated and revoked for a failed drug test, testing positive for
methamphetamine and amphetamine. As a result, he was sentenced to serve an
additional 100 days in confinement and return to probation with the same conditions.

       According to Ms. Popova, the defendant has yet to undergo an alcohol and drug
assessment as a condition of his probation. While the defendant sought treatment for his
drug and alcohol issues at Comprehensive Community Services (“CCS”), he was
discharged prior to completion of the program. The defendant also entered two different
half-way houses but was discharged from them as well.

      According to Ms. Popova, she scheduled an alcohol and drug assessment for the
defendant on three separate occasions, yet the defendant never completed the assessment.
The defendant did show for one appointment but left before the assessment could be
completed. Ms. Popova also testified that the defendant has not made any payments
towards his supervision fees or court costs despite being employed.

       The defendant also testified during the revocation hearing. The defendant
admitted he first violated his probation in the spring of 2018, for testing positive for
methamphetamine and amphetamine. As a result of violating the terms of his probation,
the defendant was ordered to serve 100 days in jail and then returned to supervised
probation for the remainder of his sentence. Upon being released, the defendant lived
with his mother and was working at Denso and Waffle House.



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        The defendant also admitted he missed three separate appointments for his alcohol
and drug assessment despite knowing that such an assessment was a term of his probation
and that the failure to complete the assessment would constitute a violation of his
probation. According to the defendant, he “messed around” with drugs about two weeks
prior to his first assessment appointment. He then used drugs on two more occasions
prior to being arrested on the November 16, 2018 violation warrant.

         The defendant admitted to having a drug problem but stated he knew “how
important it is for me to stop doing it, I do know that now.” The defendant then asked the
trial court to give him “one more chance, you know, to actually do what I’m supposed to
do. . . .”

       When asked by the trial court if he had a place to live and a job if released on
probation, the defendant informed the trial court he did not have either arranged as of the
time of the hearing. The defendant also admitted he had “been using” methamphetamine
for “about two years.” On cross-examination, the defendant admitted he violated the no-
contact order by living with his mother and the victim upon release after his first
violation.

        At the conclusion of the hearing, the trial court found the State had established
each alleged violation, even noting that the proof was uncontroverted, and therefore, the
defendant “has materially violated the terms and conditions of probation.” Based on its
finding, the trial court revoked the defendant’s probation. In determining the appropriate
remedy for the defendant, the trial court expressed concern that the defendant had “no
plan. Where’s he going to live, what’s he going to do?” The trial court also expressed
concerned with the fact that previous attempts at rehabilitation had been unsuccessful and
that the defendant had failed to complete an alcohol and drug assessment. In determining
confinement was necessary, the trial court stated:

              There are so many things that work in his favor as far as that he was
      reporting, that he did turn himself in. But then trying to balance that with
      the fact that when probably the thing that was the most important he didn’t
      go to, was the alcohol and drug assessment. And then he’s testing positive
      for amphetamine, methamphetamine, and getting kicked out of treatment
      facilities for conflict, with an aggravated assault charge and an attempted
      robbery in his past. So this would be the third – he served 50 days, then
      served 100 days.

             And in balancing all of that and trying to predict whether or not he
      can be rehabilitated at this point, there has not been a plan submitted to the
      [c]ourt of where he’s going to live, a program he could be in, or any
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       assessment of any type of alternative. So the [c]ourt is going to revoke him
       to serve the balance of his sentence.

In its written revocation order, the trial court noted the defendant was entitled to jail
credit for the 50 day sentence that began September 9, 2017, the 100 day sentence that
began April 28, 2018, and for the time he spent incarcerated between his arrest and
hearing – November 22, 2018 through January 7, 2019. This timely appeal followed.

                                         Analysis

        On appeal, the defendant does not contest the trial court’s revocation order, but
rather argues the trial court erred in ordering him to serve the original sentence in
confinement. He states the trial court’s order “was perhaps an abuse of discretion when
the lesser remedy of split confinement was available.” The State contends the trial court
did not abuse its discretion in revoking the defendant’s probation or in ordering him to
serve the original sentence in confinement. After our review, we affirm the judgment of
the trial court.


        A trial court has statutory authority to revoke a suspended sentence upon finding
that the defendant violated the conditions of the sentence by a preponderance of the
evidence. Tenn. Code Ann. § 40-35-310, -311; see State v. Clyde Turner, No. M2012-
02405-CCA-R3-CD, 2013 WL 5436718, at *2 (Tenn. Crim. App. Sept. 27, 2013). “The
trial judge has a duty at probation revocation hearings to adduce sufficient evidence to
allow him to make an intelligent decision.” State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991)). If a violation is found by the trial court during the probationary period, the time
within which it must act is tolled and the court can order the defendant to serve the
original sentence in full. Tenn. Code Ann. § 40-35-310; see State v. Lewis, 917 S.W.2d
251, 256 (Tenn. Crim. App. 1995). To overturn the trial court’s revocation, the defendant
must show the trial court abused its discretion. State v. Shaffer, 45 S.W.3d 553, 554
(Tenn. 2001). “In order to find such an abuse, there must be no substantial evidence to
support the conclusion of the trial court that a violation of the conditions of probation has
occurred.” Id. (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)).


       The defendant admits that he violated his probation. This Court has repeatedly
cautioned that “an accused, already on probation, is not entitled to a second grant of
probation or another form of alternative sentencing.” State v. Jeffrey A. Warfield, No.
01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App Feb. 10, 1999); see
State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2
                                            -4-
(Tenn. Crim. App. Feb. 11, 2002). This was the defendant’s second probation violation.
In our view, the trial court was more than patient with the defendant considering his
violations both times were for using methamphetamine and amphetamine and refusing to
complete an alcohol and drug assessment. Accordingly, we have no hesitation in
concluding the trial court did not err by ordering the defendant to serve the balance of his
sentence in confinement.

       In addition to the defendant’s admissions, the record contains sufficient evidence
to support the trial court’s decision to revoke probation and order the defendant to serve
the original sentence in confinement. The uncontroverted proof presented during the
revocation hearing revealed the defendant, on three separate occasions, failed to complete
a scheduled alcohol and drug assessment; the defendant had yet to pay anything towards
his supervision fees or court costs; the defendant, for the second time while on probation,
tested positive for methamphetamine and amphetamine; and the defendant had no “plan”
should the trial court have decided to release him.

        As noted above, once a violation of probation is found, the trial court can order the
defendant to serve the original sentence. Tenn. Code Ann. § 40-35-310; see Lewis, 917
S.W.2d at 256. Though the defendant testified at the revocation hearing and asked the
trial court for another second chance on probation, the trial court was not persuaded and
was under no obligation to comply with the defendant’s request. The record contains
sufficient evidence the defendant violated the terms of his probation as he stipulated to
and testified to the same. Leach, 914 S.W.2d at 106. Accordingly, the trial court acted
within its discretion in ordering the defendant to serve the original sentence of four years
in the Tennessee Department of Correction. Tenn. Code Ann. § 40-35-310; Clyde
Turner, 2013 WL 5436718, at *2; Lewis, 917 S.W.2d at 256. The defendant is not
entitled to relief.

                                        Conclusion

        Based upon the foregoing authorities and reasoning, we affirm the judgment of the
trial court revoking the defendant’s probation and ordering him to serve the original
sentence in confinement.




                                              ____________________________________
                                              J. ROSS DYER, JUDGE



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