                                                                                    10/03/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                        Assigned on Briefs August 27, 2019

                   STATE OF TENNESSEE v. JENNY FRYE

               Appeal from the Criminal Court for Sullivan County
        Nos. S67173, S63174, S61586, S63569 James F. Goodwin, Jr., Judge
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                          No. E2018-01825-CCA-R3-CD
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The defendant, Jenny Frye, appeals the order of the trial court revoking her community
corrections sentence and ordering her to serve an increased sentence of eight years 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 her community corrections
sentence. Accordingly, the judgment of the trial court is affirmed in part. However,
because the trial court failed to conduct a sentencing hearing prior to increasing the
defendant’s sentence, we remand the matter for a new sentencing hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                   in Part and Reversed in Part; Case Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and TIMOTHY L. EASTER, JJ., joined.

Andrew J. Gibbons, District Public Defender; William A. Kennedy, Assistant Public
Defender, for the appellant, Jenny Frye.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Emily Smith,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION

                            Facts and Procedural History
       On January 24, 2013, the defendant pled guilty to one count of failure to appear
(S61,586) and was sentenced to eighteen months on community corrections.1 As part of
her sentence, the defendant was ordered to receive treatment at the John R. Hay House
(“Hay House”). However, she left the Hay House in May 2013, violating her sentence.

       On May 22, 2014, the defendant pled guilty to identity theft (S63,569) and
misdemeanor escape (S63,174). She received an effective sentence of two years, which
was to run consecutively to her sentence in S61,586. As before, her sentences were to be
served on community corrections. The defendant subsequently stopped reporting, and a
violation warrant was issued on August 27, 2015.

       An additional violation warrant was issued in January 2016, and, on November 17,
2017, the defendant pled guilty to felony failure to appear (S67,173). She received a
sentence of one year on community corrections to be served consecutively to her
sentences in S63,174 and S63,569 and was ordered to resume treatment at the Hay
House. Additionally, the trial court enhanced the defendant’s sentence in S63,174 to two
years, giving her an effective sentence of five years, six months.2 However, the
defendant again absconded from the Hay House, and a violation warrant was issued on
January 4, 2018. The defendant was later discovered in Knoxville and arrested in April
2018.

        On September 14, 2018, the trial court held a revocation hearing, and the
defendant pled guilty to the violation of her community corrections sentence. The
defendant requested to be sent to a drug treatment facility to address her drug addiction,
and she testified a bed was waiting for her at the Eagles Nest, a drug treatment center in
Knoxville. The defendant admitted she had used drugs since the age of fourteen and
testified she was “ready to change [her] life for the first time.” She was particularly eager
to mend her relationship with her daughter, who had tried to commit suicide due to the
defendant’s addiction. Additionally, the defendant’s family, including her ill mother,
lived in Knoxville and would support the defendant’s journey to sobriety. On cross-
examination, the defendant agreed she absconded every time she had the opportunity.

      Nancy Henson, the defendant’s mother, testified she was very ill, and the
defendant left the Hay House to care for her in Knoxville. Although Ms. Henson did not

       1
          The defendant also pled guilty to violation of the child restraint law, DUI accompanied
by a child under the age of eighteen, and attempted child abuse and neglect. Those convictions
and sentences are not part of the present appeal.
        2
          At the revocation hearing, the trial court noted the defendant’s sentence was enhanced
to five years on November 17, 2017. However, the judgment forms included in the record reflect
an effective sentence of five years, six months.
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have anyone to help her around the house at the time the defendant left the Hay House,
Ms. Henson testified a nurse now comes to her home to assist her. Ms. Henson described
the defendant as “caring” and “loving” but stated the defendant’s behavior was “different
on drugs.” On cross-examination, Ms. Henson agreed she did not call the Hay House or
the defendant’s probation officer to alert them of the defendant’s whereabouts.

       At the conclusion of the revocation hearing, the trial court revoked the defendant’s
community corrections sentence, noting the defendant had “one of the worst [histories of
probation violations the trial court had] ever seen.” As such, the trial court increased the
defendant’s sentence to eight years to be served in the Tennessee Department of
Correction. This timely appeal followed.

                                         Analysis

       On appeal, the defendant argues the trial court abused its discretion in revoking
her community corrections sentence. Although the defendant admits to violating the
terms of her community corrections sentence, she asserts the trial court did not “attempt
to address the underlying problem of [the defendant’s] persistent drug use.” The State
contends the trial court properly exercised its discretion in revoking the defendant’s
community corrections sentence.

       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. Harkins, 811 S.W.2d 79, 82-
83 (Tenn. 1991) (applying the probation revocation procedures contained in Tennessee
Code Annotated § 40-35-311 to the revocation of a community corrections sentence).
Proof of a violation must be sufficient to allow the trial court “to make a conscientious
and intelligent judgment.” Id. at 82. 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 Harkins, 811 S.W.2d at 82).

       Based on our review of the record, we conclude the trial court did not abuse its
discretion in finding the defendant violated the terms of her community corrections
sentence. In considering the revocation, the trial court made the following findings:

       What I have to figure out is [the defendant] genuinely ready to change and
       accept treatment or is she just trying to get out of jail again so she can get
       back down to Knoxville and two things that she said during her testimony
       give me the answer. . . . Number one, when she was talking about her, one
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       of her prior absconding where she didn’t report to the Hay House at all, she
       said that the man from Hay House came and told her that she could go
       home. I don’t believe that. I don’t believe that at all. Then she testified
       about being on her psychotropic medications and how that helped her stay
       away from drugs and it came out during the cross[-]examination that one of
       the times that she absconded, and actually it was this time, when she
       absconded she had been allowed to go from the Hay House to a Frontier
       Health appointment and Frontier Health is our local psychiatric provider for
       inmates at the Hay House so she was going there and that’s when she
       absconded and went to Knoxville. And then she testified that while she was
       in Knoxville she was talking about her relapse and she completely and
       totally minimized and justified why she used drugs again after being clean
       for a period of time[,] and when I put all those things together along with
       her history of failed attempts at supervision I believe that [the defendant] is
       just trying to get out of jail so she can get back to Knoxville. In working
       with the drug court and recovery court in this population you can get a
       sense for, by the things that they say about their addiction, what their
       relationship still is with their addiction and I think she still has a
       relationship with her addiction. I think she still, at the very least
       romanticizes that lifestyle, and because of that she does not strike me that
       she’s ready to receive treatment.

        The trial court did consider the potential of the defendant successfully completing
a drug treatment program and determined it would not be successful at this time based on
the defendant’s testimony at the revocation hearing. The defendant is not entitled to
relief on this issue.

       At the conclusion of the revocation hearing, the trial court re-sentenced the
defendant and increased her sentence from five years, six months to eight years, stating,
“Based on the proof that I’ve heard, upon her failed attempts at both probation and
community corrections[,] the court is of the opinion that her sentence should be increased
to . . . eight years.” However, the trial court failed to address any sentencing
considerations, including applicable enhancement or mitigating factors. Following the
revocation of a community corrections sentence, the trial court 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.” Tenn. Code
Ann. § 40-36-106(e)(4). If the trial court chooses to “resentence a defendant to a
sentence more severe than the original, the trial court must conduct a sentencing hearing
pursuant to the principles of the Sentencing Reform Act.” State v. Crook, 2 S.W.3d 238,
240 (Tenn. Crim. App. 1998) (citations omitted). The trial court must state on the record
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“specific findings of fact upon which application of the sentencing principles was based.”
Tenn. Code Ann. § 40-35-209(c). Here, the trial court failed to conduct a sentencing
hearing prior to increasing the defendant’s sentence from five years, six months to eight
years. Accordingly, we reverse the defendant’s sentence and remand the matter to the
trial court for a new sentencing hearing.

                                       Conclusion

      Based on the foregoing authorities and reasoning, we remand this matter for a new
sentencing hearing. In all other respects, the judgment of the trial court is affirmed.




                                            ____________________________________
                                            J. ROSS DYER, JUDGE




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