        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 18, 2009

           STATE OF TENNESSEE v. MICHAEL COLLINS REED

            Direct Appeal from the Criminal Court for Davidson County
                    No. 2004-D-2936 Cheryl Blackburn, Judge


                No. M2009-00550-CCA-R3-CD - Filed March 16, 2010


The Defendant-Appellant, Michael Collins Reed, appeals his sentence following the
revocation of his probation. He originally pled guilty to attempted aggravated robbery, a
Class C felony, and was sentenced as a multiple offender to eight years of confinement in the
Tennessee Department of Correction. This sentence was suspended to ten years of
supervised probation. Because this was Reed’s third probation violation, the trial court
placed his eight-year sentence for attempted aggravated robbery into effect. On appeal, Reed
concedes the probation violation, but argues the trial court should have reinstated his
probation or imposed a rehabilitative sentence that addressed his drug addiction. Upon
review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
T HOMAS T. W OODALL, JJ., joined.

Nathan Moore, Nashville, Tennessee, for the Defendant-Appellant, Michael Collins Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Ewald,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       Background. The procedural history for this case was outlined by this court
following the second revocation of Reed’s probation:

              The record reflects that a Davidson County grand jury indicted the
       appellant for attempted first degree premeditated murder, especially
       aggravated robbery, and two counts of evading arrest. On March 17, 2005, the
       appellant pled guilty to one count of attempted aggravated robbery, a Class C
felony, and pursuant to the plea agreement, the trial court sentenced him as a
Range II, multiple offender to eight years to be served as ten years on
probation. On October 7, 2005, a probation violation warrant was issued,
alleging that the appellant had violated his probation by testing positive for
marijuana on September 23, 2005. On October 26, 2005, the trial court
concluded that the appellant had violated probation, ordered that he serve
thirty days in confinement, and ordered that his probation be reinstated upon
completion of the thirty days in jail. On February 10, 2006, a second probation
violation warrant was issued, alleging that the appellant had violated his
probation by failing to provide his probation officer with proof of employment,
changing his address without informing his probation officer, failing to report
to his probation officer, failing to pay probation fees, failing to provide his
probation officer with any proof of his public service work, not attending GED
classes, and failing to pay anything toward his court costs and fines.

        At the September 22, 2006 probation revocation hearing, the appellant
acknowledged that he violated probation. He stated that he moved to
Murfreesboro but left a message on his probation officer’s “voice mail,”
informing her that he “was going through some situations with my child” and
that he was moving to Murfreesboro to take care of his daughter’s problem.
The appellant’s probation officer telephoned him, counseled him about the
situation, and told him that he needed to report to her office. The appellant
testified that his daughter had been molested by her mother’s husband and that
his daughter’s abuse “just tore me up.” He said that he tried to explain to his
probation officer that he was “dealing with so much pain . . . and . . . trying to
overcome staying out of trouble . . . and not running back in these streets.”
The appellant stated that he was “not trying to neglect the rules of this
probation at all” and that he tried to start his own business. He said he did
whatever he could to stay focused and “stay [away] from trying to pick up a
gun or something to go rob somebody to pay bills.” He stated that when his
probation violation warrant was issued in February 2006, he was working full
time for a bricklaying company. The appellant also had recently worked at a
car wash. He acknowledged that while he had moved from job to job during
his time on probation, he had always been employed. The appellant
acknowledged that he missed paying some of his probation fees and court
costs. He stated that if the trial court would reinstate his probation, he would
do everything the court asked of him “to the fullest.”

       Upon questioning by the trial court, the appellant acknowledged that he
had quit reporting to his probation officer. The court announced that on
September 6, 2006, it had amended the appellant’s February 2006 probation
violation warrant to reflect that the appellant had been found guilty of another

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        crime. The appellant explained that in August 2006, the police had stopped
        him on the street as he was walking to his daughter’s birthday party. The
        police asked him for identification and asked his name. When the appellant
        told them his name was Michael Moore, they accused him of using an alias.
        The appellant was subsequently charged with criminal impersonation.

               The trial court stated that this was “a very serious case,” noting that the
        victim had been shot in the stomach by a person the victim identified as the
        appellant. The trial court noted that the appellant had violated his probation
        previously, was released back onto probation after serving thirty days in
        confinement, and then stopped reporting to his probation officer. The trial
        court concluded that he should serve his sentence in confinement.

State v. Michael Collins Reed, No. M2006-02140-CCA-R3-CD, 2007 WL 2042482, at **1-2
(Tenn. Crim. App., at Nashville, June 19, 2007) perm. to appeal denied (Tenn. Oct. 29,
2007). This court found that the trial court did not abuse its discretion in ordering Reed to
serve his sentence in confinement. Id. at *2. Reed was subsequently released from jail and
placed into a special technical violators unit pursuant to Tennessee Code Annotated section
40-20-301.1

        On January 25, 2008, Reed’s probation supervisor signed an affidavit stating that
Reed again violated a condition of his probation. The record does not contain any document
setting forth the terms of Reed’s probation. In specifying the violation, the affidavit stated:

        Rule 9: I will not use intoxicants (beer, whiskey, wines, etc.) of any kind to
        excess. I will not have in my possession illegal drugs or marijuana. I will
        submit to drug screens or drug tests as directed by my Probation/Parole
        Officer.

        Violation: Offender was given a drug screen on 1/17/08, it showed positive in
        office for cocaine. Specimen sent to Aegis Labs for confirmation. Drug
        screen returned from lab on 1/22/08 positive for high levels of cocaine.

        A probation revocation hearing was held on February 17, 2009, and Reed was the only
witness to testify. He admitted testing positive for cocaine in violation of his probation. He
said he had a drug problem and was “looking to try to retain some kind of help;” however,
he testified that he had done nothing to address the problem. Reed also admitted that he had



        1
         The record does not contain an order concerning Reed’s release from jail and placement into the
technical violators unit after the second probation revocation. This information is based on the trial court’s
statements during the February 17, 2009 revocation hearing.

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a pending vandalism charge. Reed testified that he was not asking the trial court to place him
back on probation; rather, he stated:

       I’m here asking . . . the Court to see if I could get some kind of help with my
       problem to better myself in this community. I’m not looking to be released out
       today on - - placed back on probation because I would be telling a tale to
       myself. But I’m just looking for the Court to see if I can get into some kind of
       program to help better myself for . . . my future and for my kids, you know.
       Because I just can’t [keep] coming back into this place and keep doing the
       same thing.

Reed said he has six children between the ages of four and nineteen. He wanted to enter the
Lifelines program, which he believed would make him a law-abiding citizen and a better
father.

       On cross-examination, Reed testified that he had a positive drug screen in January of
2008, but the probation violation warrant was not served until December of 2008. Reed
admitted he did not report to his probation officer in the intervening months.

       After Reed testified, the trial court made the following findings:

       He conceded he violated. He didn’t report, he’s got new charges. I have
       previously revoked his probation and actually sent him to the Department of
       Corrections. I’m somewhat stunned that he’s back. I guess he . . . went to the
       technical violators. That’s what happened is he didn’t have new charges. . . .
       Well, this time he does have new charges. He clearly violated. The sentence
       is going to be back into effect. He’ll get his credit at the Department of
       Corrections. I am issuing an order this time prohibiting his placement in the
       special technical violation unit pursuant to 40-23-01[sic].

       The trial court’s findings were reflected in the Order Revoking Probation, the post-
revocation judgment form, and the Order Prohibiting Placement in Special Technical
Violation Unit. The latter order specifically found that Reed had two prior probation
revocations, tested positive for cocaine, failed to report to his probation officer from January
2008 to December 2008, was convicted of vandalism while on probation, and had not paid
probation fees. Following the trial court’s judgment, Reed filed a timely notice of appeal.

                                         ANALYSIS

       Reed admits he violated his probation; however, he claims the trial court erred in
placing his eight-year sentence of confinement for attempted aggravated robbery into effect.
He asserts the trial court should have reinstated his probation or imposed a rehabilitative

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sentence that addressed his drug addiction. The State contends the trial court did not abuse
its discretion by ordering Reed to serve the original sentence. Upon review, we agree with
the State.

        Tennessee Code Annotated Section 40-35-310 gives the trial court statutory authority
to revoke probation whenever it finds that a probationer has violated the conditions of
probation. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If a probationer
is arrested for any breach of the laws of this State or violates the conditions of probation, the
trial judge shall have the power to determine whether a violation occurred at a due process
hearing, and, if the court finds by a preponderance of the evidence that a probationer is guilty
of the alleged violation, the trial court may cause execution of the original judgment. T. C.
A. § 40-35-311 (2008). Moreover, when probation is revoked, “the original judgment so
rendered by the trial judge shall be in full force and effect from the date of the revocation of
such suspension.” T. C. A. § 40-35-310 (2008).

        The revocation of a suspended sentence is within the sound discretion of the trial
judge. Mitchell, 810 S.W.2d at 735 (citing Finley v. State, 378 S.W.2d 169, 172 (Tenn.
1964)). At the probation revocation hearing, the credibility of the witnesses is to be
determined by the trial judge. Id. (citing Carver v. State, 570 S.W.2d 872, 875 (Tenn. Crim.
App. 1978)). The trial judge must receive sufficient evidence to allow him to make an
intelligent determination. Id. (citing Barker v. State, 483 S.W.2d 586, 589-90 (Tenn. Crim.
App. 1972)).

       In determining whether to revoke probation, the trial judge need not find a
       violation of the terms of probation has occurred beyond a reasonable doubt.
       The evidence need only show the trial judge has exercised conscientious
       judgment in making the decision rather than acting arbitrarily.

State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995) (quoting Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980)).

       The judgment of the trial court will not be disturbed on appeal absent an abuse of
discretion. Leach, 914 S.W.2d at 106. For an appellate court to be warranted in finding an
abuse of discretion in a probation revocation case, it must be established that 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. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991).

       Once a trial judge has determined a violation of probation has occurred, the trial judge
retains discretionary authority to order the defendant to: (1) serve his sentence in
incarceration; (2) serve the probationary term, beginning anew; or (3) serve a probationary
period that is extended for up to an additional two years. State v. Hunter, 1 S.W.3d 643, 647

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(Tenn. 1999). Additionally, under Tennessee Code Annotated section 40-35-310(b), the trial
court

       may also resentence the defendant for the remainder of the unexpired term to
       any community-based alternative to incarceration authorized by chapter 36 of
       this title; provided, that the violation of the defendant’s suspension of sentence
       is a technical one and does not involve the commission of a new offense.

The determination of the proper consequence of the probation violation embodies a separate
exercise of discretion. Id. at 647; State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App.
2007).

       In State v. Hunter, the Tennessee Supreme Court stated:

       Tennessee Code Annotated §§ 40-35-310 (1990) and 40-35-311 (1990) govern
       the procedure for revocation of probation. If a trial court determines that a
       defendant has violated the conditions of probation, it has the authority to
       revoke the defendant’s probation and cause execution of the original judgment.
       Tenn. Code Ann. § 40-35-311.

State v. Hunter, 1 S.W.3d 643, 646 (Tenn. 1999). Additionally, Tennessee Code Annotated
section 10-35-310(a) provides:

       The trial judge shall possess the power, at any time within the maximum time
       that was directed and ordered by the court for the suspension, after proceeding
       as provided in § 40-35-311, to revoke and annul the suspension; and in such
       cases the trial judge may order the original judgment so rendered to be in full
       force and effect from the date of the revocation of the suspension, and that it
       be executed accordingly[.]

       Here, Reed concedes in his brief that the trial court “maintains the authority to impose
the original sentence if a defendant does not comply with the terms of his probation.” He
also admits that he violated his probation. He asserts, however, that the trial court’s ruling
should not be reviewed under an abuse of discretion standard; rather:

       Appellant requests that the abuse of discretion standard may be modified in
       cases of individuals with substance abuse issues, to treat defendants who by
       a preponderance of the evidence are found suitable for substance abuse
       treatment with a balancing test instead of the near-plenary abuse of discretion
       standard. If a defendant is found suitable for rehabilitation, the trial court
       ought to be required to find on the record that the reason for the violation of
       probation and the other public policy factors of sentencing, to include

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       deterrence and the safety of the community, outweigh the public policy
       consideration of rehabilitation of the criminal defendant. If those factors do
       not outweigh rehabilitation, a suitable rehabilitation solution should be sought
       by the trial court instead of incarceration.

      We decline to uproot the established standard of review, especially under the
circumstances of this case. In defining the primary purpose of probation, the Tennessee
Supreme Court has stated:

       The entire theory of probation is that it is in the public interest that those who
       violate society’s rules of conduct should, in proper cases, be given an
       opportunity to rehabilitate themselves and to be restored to useful and
       productive citizenship. More and more our society is coming to realize that
       “warehousing” criminals on an indiscriminate basis is financially, socially and
       morally unacceptable.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991) (quoting Stiller v. State, 516 S.W.2d 617,
620 (Tenn.1974)); see also State v. Burdin, 924 S.W.2d 82, 86 (Tenn. 1996). Here, the
probation system afforded Reed multiple opportunities to seek help for his alleged drug
addition. His probation was revoked twice before, including once for a positive drug test.
Now, after his probation was revoked again and his original sentence was imposed, Reed
argues the established standard of review does not adequately protect criminals with drug
addictions. Reed has failed to show that a departure from the abuse of discretion standard
is warranted. Upon our review, the record contains substantial evidence that Reed violated
his probation; therefore, under section 40-35-310, the trial court was authorized to impose
the original sentence. Reed is not entitled to relief.

                                      CONCLUSION

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


                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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