        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs October 25, 2016

               STATE OF TENNESSEE v. TIMMY THOMPSON

                  Appeal from the Circuit Court for Blount County
                     No. C-23202 David Reed Duggan, Judge
                     ___________________________________

              No. E2016-00749-CCA-R3-CD – Filed November 7, 2016
                     ___________________________________


The defendant, Timmy Thompson, received a six-year sentence to be served on
Community Corrections after being convicted of criminal simulation involving a value
over $10,000. After holding a hearing, the trial court determined the defendant materially
violated the terms of his alternative sentence and ordered him to serve the remainder of
his sentence in confinement. On appeal, the 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 Circuit Court Affirmed

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

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Timmy Thompson.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Mike L. Flynn, District Attorney General; and Clinton Frazier,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       On February 2, 2015, the defendant was convicted of criminal simulation
involving a value over $10,000. His sentence was suspended to Community Corrections
for a six-year term. The defendant was released from the Blount County Jail on
September 9, 2015. The defendant’s Community Corrections officer filed an affidavit of
violation of Community Corrections on September 10, 2015, alleging the defendant
failed to contact or report to Community Corrections upon his release. The defendant
was arrested on January 1, 2016 for the violation of Community Corrections. The
affidavit was amended on January 6, 2016, to add a violation alleging the defendant had
tested positive for Benzodiazepine at the time of his arrest.

        Based on the record before this Court, it appears that the trial court held an
evidentiary hearing on February 16, 2016, to determine whether the defendant had, in
fact, violated the terms of his Community Corrections sentence. The transcript from that
hearing is not part of the record on appeal. However, per the trial court’s order dated
February 16, 2016, the trial court found that the “defendant has materially violated the
terms of his Community Corrections and shall have his Community Corrections revoked
with sentencing withheld until March 21, 2016.”

       On March 22, 2016, the trial court conducted a sentencing hearing in the
defendant’s case. Initially, the State announced the trial court had indicated during the
February 16, 2016, hearing that it was “likely to sentence [the defendant] to serve with a
recommendation to Special Needs. But we bifurcated the sentencing hearing for us to
have the opportunity to look into alternative placement.” The State then produced a letter
from Dr. Robin Turnmire, a treatment specialist with the Blount County Community
Corrections Office. In her letter, Dr. Turnmire indicated the defendant needed:

       highly structured, supervision, assistance taking his medication correctly,
       extensive and repetitive life skill training over a long enough period of time
       to develop healthy living habits, and mental health treatment for his co-
       occurring disorders.

Dr. Turnmire explained that neither she nor Helen Ross McNabb, the Criminal Justice
Liason, had been successful in locating a treatment center suitable for the defendant. Dr.
Turnmire indicated that she strongly recommended, absent any alternative treatment, the
defendant be placed into the special needs population of the Tennessee Department of
Correction.

       After considering the evidence and statements by counsel, the trial court revoked
the defendant’s Community Corrections sentence and ordered the defendant “to serve this
sentence.” In its order, the trial court requested that the defendant be placed in the special
needs unit of the Tennessee Department of Correction. This timely appeal followed.

                                        ANALYSIS

       The defendant argues that the trial court abused its discretion when it ordered him
to serve the balance of his sentence in the Tennessee Department of Correction. The
State argues the defendant has waived consideration of the issue by not including a
transcript of the revocation hearing in the appellate record, and that the trial court did not


                                             -2-
abuse its discretion when it revoked the defendant’s suspended sentence and ordered him
to serve it in confinement. We agree with the State.

       On appeal, a 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). A trial court may “revoke a sentence of probation or a suspended sentence
upon a finding that the defendant has violated the conditions of his probation or
suspended sentence by a preponderance of the evidence.” Id. (citing Tenn. Code Ann. §
40-35-311). In order for this Court to find an abuse of discretion, the record must contain
no substantial evidence to support the finding of the trial court that a violation has
occurred. Id. (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp,
614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). “Proof of a probation violation need not
be established beyond a reasonable doubt, but it is sufficient if it allows the trial judge to
make a conscientious and intelligent judgment.” Id.

       Once the trial court has determined that the defendant has violated the terms of his
suspended sentence, the court may: order confinement, order execution of the original
sentence, return the defendant to probation on modified conditions, or extend the
defendant’s period of probation by up to two years. Tenn. Code Ann. § 40-35-310; see
also State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999).

        The defendant does not challenge the trial court’s finding that he violated the
terms of his suspended sentence;1 instead he challenges the trial court’s order sentencing
the defendant to serve the remainder of his sentence in confinement. After the trial court
determined that the defendant had violated the terms of his suspended sentence, however,
it had the discretion to order the defendant to serve his sentence in confinement, pursuant
to Tennessee Code Annotated § 40-35-310(b).

       “The determination of the proper consequence of a probation violation embodies a
separate exercise of discretion.” State v. Jessica Scronce, No. W2016-00066-CCA-R3-
CD, 2016 WL 3563667 at *2 (Tenn. Crim. App. June 22, 2016). An accused, already on
a suspended sentence, is not entitled to a second grant of probation or another form of
alternative sentencing. Id.

        The record, although sparse, makes clear that the trial court did not abuse its
discretion. The trial court gave the State and the defendant an opportunity to seek out
alternative placement options. When they were unable to locate any suitable alternatives,
the trial court followed Dr. Turnmire’s recommendation and sentenced the defendant to
confinement in the Tennessee Department of Correction. The court included a request
that the defendant be placed in a special needs facility in his sentencing order.

       1
         For this reason, we opt not to treat the defendant’s appellate issues as waived for failure
to present a transcript of the revocation hearing.
                                                -3-
       The trial court did not abuse its discretion when it ordered the defendant to serve
his term in confinement after finding he had materially violated the terms of his
suspended sentence. The defendant, therefore, is not entitled to relief.


                                     CONCLUSION

       Based on the foregoing reasoning and authorities, the judgment of the trial court is
affirmed.


                                             ____________________________________
                                             J. ROSS DYER, JUDGE




                                            -4-
