                                                                                         04/29/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 27, 2019

        STATE OF TENNESSEE v. CECIL BERNARD SKYLES, JR.

                Appeal from the Criminal Court for Hamilton County
                 Nos. 297896, 304632     Barry A. Steelman, Judge
                      ___________________________________

                           No. E2018-01376-CCA-R3-CD
                       ___________________________________


Defendant, Cecil Bernard Skyles, Jr., pled guilty in two separate cases and received a
sentence to serve on supervised probation. After multiple probation violations, the trial
court revoked Defendant’s probation and ordered his sentence into effect. Defendant
appealed. After a review of the record, we determine that the trial court did not abuse its
discretion. Consequently, the judgment of the trial court is affirmed.

 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 ALAN E. GLENN and
CAMILLE R. MCMULLEN, JJ., joined.

Steven E. Smith, District Public Defender, and Jay Perry, Assistant District Public
Defender, for the appellant, Cecil Bernard Skyles, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Neal Pinkston, District Attorney General; and Brian Bush, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       Defendant was indicted in March of 2016 by the Hamilton County Grand Jury in
case number 297896 for aggravated stalking, domestic assault, false imprisonment, and
violation of an order of protection. Defendant eventually pled guilty to aggravated
stalking and domestic assault. Defendant received a two-year sentence on the aggravated
stalking conviction and a sentence of eleven months and twenty-nine days on the
domestic assault conviction, to be served consecutively. The sentences were ordered to
be served on “state supervised probation.” The judgment forms also specified that
Defendant was to have no contact with the victim and be subject to GPS monitoring.

       On August 24, 2017, a probation violation warrant was filed against Defendant,
alleging that Defendant had violated various terms of the sex offender registry. In early
September, Defendant wrote a letter to the trial court asking for “consideration of release
from [his] GPS monitoring device.” In the letter, Defendant explained that he had been
“found guilty” of an incident in Florida at the age of fourteen where he was “adjudicated
delinquent and charged as an adult.” When Defendant moved to Tennessee, he was on
intensive probation for five years and complied with all of the requirements. Defendant
also explained that he was in the process of a divorce and moving to a new residence.
The trial court denied the request.

        On December 4, 2017, the trial court dismissed the probation violation warrant
filed in August and reinstated Defendant to probation. However, a mere one month later,
on January 4, 2018, a second probation violation report was issued alleging that
Defendant had tested positive for amphetamine, methadone, and methamphetamine. On
February 12, 2018, Defendant waived his right to a hearing and conceded the violation of
his probation. The trial court partially revoked Defendant’s probation, ordering him to
serve 90 days prior to be restored to state supervised probation.

       On February 21, 2018, an “Addendum to Violation of Probation” was filed
alleging that Defendant had been charged with aggravated assault on another inmate
during the service of his 90 day incarceration. On March 15, 2018, Defendant again
waived a hearing and conceded the violation. The trial court revoked probation for a
second time, but chose to reinstate Defendant to state supervised probation “in lieu of
further incarceration.”

      A short three weeks later, on April 4, 2018, Defendant was indicted by the
Hamilton County Grand Jury for one count of aggravated assault in case number
304632.1 On April 30, 2018, Defendant’s probation was partially revoked, and
Defendant was, for the fourth time, reinstated to probation. On that same day, Defendant
pled guilty to the aggravated assault charge and was sentenced to serve three years on
supervised probation, consecutive to the sentence in case number 297896.

       Continuing the pattern, approximately one month later, on May 23, 2018, a
probation violation warrant was filed alleging Defendant had again violated the terms of



       1
          The Public Defender’s Office did not represent Defendant on this charge because they had
previously represented the victim.

                                               -2-
his probation by testing positive for methamphetamine on May 1, 2018,2 and May 11,
2018. On July 9, the trial court held a hearing on the most recent violation warrant. At
the hearing, Christina Barnes, a “court liason” with the Tennessee Department of
Correction Probation and Parole division testified that she had reviewed Defendant’s
records. She recounted Defendant’s numerous violations, indicating that the most recent
was the “fourth filed violation.” She confirmed that the office of probation and parole
had reviewed the rules of probation and that Defendant, because of his status as a sex
offender, had been informed about the rules individually rather than in a group.

       Defendant, who was forty years old at the time of the hearing, explained that he
was placed on the sex offender registry in Florida at the age of fourteen. Defendant
admitted that he had a failed drug screen but claimed he was “trying to get [his] life back
on line” after his father’s death in 2014. Defendant explained that he had “lost
everything [he ever] had: [his] home, [his] clothes.” He admitted the he failed a drug test
administered on May 1. Defendant’s unchallenged testimony was that the probation
department told him that “it was free,” and he was referred to what his counsel referred to
as “some sort of resource classes or something.”

       Defendant explained that he set up classes three days a week to improve his life at
the recommendation of probation and parole but that he was arrested before he could
complete the classes. Defendant claimed he was not using drugs at the time of the
hearing but admitted that he used drugs while incarcerated at Silverdale Correctional
Facility. He tried to explain his positive drug screen on May 11th, claiming that there
must have been drugs in the “food” where he was staying. However, Defendant admitted
he used methamphetamine for the first time in January of 2018. Defendant admitted that
he pled guilty to aggravated assault but claimed that someone “put [their] hands on
[him]” and that he reacted in self-defense. Defendant asked the court for another chance.

      On July 9, 2018, the trial court revoked Defendant’s probation in case numbers
297896 and 304632, ordering him to serve the balance of his sentences in confinement.
Defendant filed a timely notice of appeal in this Court.

                                               Analysis

       On appeal, Defendant argues that the trial court abused its discretion when it
ordered his sentence in case number 304632 (aggravated assault) into execution because
it was his first violation and he had been on probation for less than one month in that
case. Defendant does not challenge the revocation of probation with respect to his other
case. The State replies that the trial court did not abuse its discretion.

        2
        The initial test on May 1st was positive, but when the test was sent to the lab for analysis, it
came back as having been tampered with.
                                                -3-
       When a trial court finds by a preponderance of the evidence that a defendant has
violated the conditions of probation, the court “shall have the right . . . to revoke the
probation.” T.C.A. § 40-35-311(e)(1). After revoking a defendant’s probation, the trial
court is authorized to order a defendant to serve the balance of his original sentence in
confinement, return a defendant to probation with modified conditions as necessary, or
extend the period of probation by no more than two years. T.C.A. §§ 40-35-308, -310.
The revocation of probation rests in the sound discretion of the trial court and will not be
overturned by this Court absent an abuse of that discretion. State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991); State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); see
also State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013) (holding that an abuse of
discretion standard with a presumption of reasonableness applies to all sentencing
decisions). An abuse of discretion occurs when the “record contains no substantial
evidence to support the conclusion of the trial judge that a violation of the conditions of
probation has occurred.” State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980);
see also State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001).

        Defendant does not dispute the fact that he violated the terms of his probation by
testing positive for methamphetamine. Defendant also does not challenge the revocation
of his probation or the trial court’s decision to order his eleven month and twenty-nine
day sentence in case number 297896 into effect.3 Instead, Defendant merely complains
that the trial court should have been lenient because it was the first time he had violated
probation in case number 304632. The trial court did not abuse its discretion. If
anything, the trial court gave Defendant the benefit of the doubt time and time again,
reinstating Defendant to probation four times in a period of nine months, only to be
greeted with Defendant’s a fifth violation of probation a little over two years after his
initial conviction for aggravated stalking and domestic assault. There was substantial
evidence in the record to show Defendant violated his probation yet again and repeatedly
failed at community based alternatives to incarceration. Defendant is not entitled to relief
on any and all sentences for which he still has incarceration time left to serve in both case
numbers 297896 and 304632.

                                               Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.



                                                 ____________________________________
                                                 TIMOTHY L. EASTER, JUDGE

       3
           Apparently, Defendant had already served the two-year sentence in that case.
                                                  -4-
