        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 9, 2012

              STATE OF TENNESSEE v. DONTREL D. PITTMAN

                Appeal from the Circuit Court for Montgomery County
              Nos. 40700678, 40700679, 40800891, 40801024, and 40900235
                             John H. Gasaway, III, Judge


                  No. M2011-00877-CCA-R3-CD - Filed May 22, 2012


The defendant, Dontrel D. Pittman, appeals the Montgomery County Circuit Court’s order
revoking his 12-year community corrections sentence and ordering service of the sentence
in the custody of the Department of Corrections. He argues that no substantial evidence
supports the trial court’s order and that the sentence imposed is excessive. Discerning no
error, we affirm the judgments of the trial court.

              Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Mark R. Olson, Clarksville, Tennessee, for the appellant, Dontrel D. Pittman.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and John E. Finklea, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On October 2, 2008, the defendant pleaded guilty pursuant to a plea agreement
as follows:



 No. 40700678         possession with intent to sell cocaine   8 years

                      criminal impersonation                   158 days/time served
 No. 40700679         felony reckless endangerment             2 years

                      possession of marijuana                  165 days/time served

                      evading arrest                           165 days/time served

 No. 40800891         possession with intent to sell cocaine   8 years

 No. 40801024         felony failure to appear                 2 years

Pursuant to the agreement, the trial court imposed concurrent sentences for a total effective
sentence of eight years and ordered the effective sentence to be served on community
corrections supervision.

               Only 13 days later, on October 15, 2008, the defendant’s first revocation
warrant issued alleging the defendant’s new arrest for unlawful possession of drug
paraphernalia on October 11, 2008, a curfew violation stemming from that arrest, and the
defendant’s failure to perform community service hours. On January 14, 2009, an amended
violation warrant issued alleging the defendant’s failure to report, failure to submit to drug
screens, and additional curfew violations. On February 19, 2009, an “absconder warrant”
issued alleging that the defendant had absconded from supervision by failing to report for
over a month. On March 12, 2009, a second amended violation warrant issued alleging that
the defendant had been arrested on February 19, 2009, for first degree murder and attempted
first degree murder in case number 40900235. On May 25, 2010, the defendant waived a
hearing on the revocation charges and admitted the violations in conjunction with his best
interest plea to facilitation of second degree murder in case number 40900235. Pursuant to
the plea agreement in case number 40900235, the trial court sentenced the defendant to 12
years to be served concurrently with the previously-imposed effective sentence of 8 years,
for a new total effective sentence of 12 years, and returned the defendant to community
corrections supervision for all the sentences.

               On July 9, 2010, a new violation warrant issued alleging that the defendant
tested positive for cocaine on June 2 and June 9, 2010, committed five curfew violations
between June 1 and July 5, 2010, failed to provide employment verification, failed to perform
community service, failed to pay court costs or supervision fees, and failed to provide a DNA
sample as required by the terms of his sentence and supervision. On July 26, 2010, an
amended violation warrant issued alleging the defendant’s new arrest on July 21, 2010, for
possession of cocaine for resale and a related curfew violation. Yet again, on November 4,
2010, a second amended violation warrant issued alleging the defendant’s new arrest for
aggravated assault and aggravated burglary in Davidson County, which also served as a
violation of the terms of his supervision because the defendant left the county without

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permission.

               At the February 4, 2011 revocation hearing, Courtney Mason, an officer with
the community corrections program, testified concerning the defendant’s prolific supervision
violations as alleged in the violation warrant and amendments. Ms. Mason testified that the
defendant failed to perform any community service, failed to provide verification of his
employment, was not home in violation of curfew on five separate occasions when she made
unannounced visits to his home, and tested positive for cocaine use on two occasions. She
also said that the defendant garnered new arrests for possession of cocaine, aggravated
assault, and aggravated burglary. Ms. Mason testified that the defendant failed to report at
all from July 22 through November 18, despite his knowing that his supervision conditions
required him to report twice weekly.

                 On cross-examination, Ms. Mason acknowledged that most of the defendant’s
curfew violations occurred within an hour of the required time for the defendant to be home.
She also testified that the defendant’s subsequent drug screens were negative. She recalled
speaking with the defendant’s purported employer on the telephone, but she said that the
individual never provided any written verification of the defendant’s employment as she had
requested. Regarding the defendant’s failure to report, she testified that reporting should
occur “face to face” and that telephone calls were insufficient to satisfy the reporting
condition. Ms. Mason stated that the defendant was not “obstinate or difficult” but opined
that “just a lot of issues” impeded the defendant’s successful completion of the requirements
of his community corrections supervision.

                With this proof, the trial court found by a preponderance of the evidence that
the defendant failed to perform “public service work,” violated curfew, used cocaine, and left
the county without permission.            In consideration of the defendant’s “history of
noncompliance” and its belief that there was “no likelihood that the defendant will comply,”
the trial court revoked the defendant’s community corrections sentences and ordered service
of the remaining portion of the originally-imposed 12 year sentence in prison.

               On appeal, the defendant argues that the record contains “no substantial
evidence” to support the trial court’s finding that the defendant violated the terms of his
release. He also contends that the case should be remanded for a sentencing hearing based
upon the trial court’s “failure to find sufficient facts upon which the application of sentencing
principles could be applied” and “to determine whether the community corrections sentence
was terminated, or if in fact a new sentence was imposed.” The State responds that the trial
court committed no abuse of discretion in revoking the community corrections sentences and
that a new sentencing hearing is not necessary when, as in this case, the original sentence is
imposed following the revocation and the trial court did not impose a more onerous sentence.

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Following our review, we agree with the State.

                The decision to revoke a community corrections sentence rests within the sound
discretion of the trial court. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). “In order for
a reviewing 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.”
Harkins, 811 S.W.2d at 82 (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)).1 Generally, “[a] trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases
its ruling on a clearly erroneous assessment of the proof, or applies reasoning that causes an
injustice to the complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010). The
trial court is required only to find that the violation of probation or community corrections
occurred by a preponderance of the evidence. See T.C.A. § 40-35-311(e) (2006); see also id.
§ 40-36-106(e)(3)(B).


               The record reflects that the trial court did not abuse its discretion in determining
that a violation occurred. “Only one basis for revocation is necessary.” State v. Alonzo
Chatman, E2000-03123-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, Oct. 5,
2001). Here, the defendant violated the terms of his community corrections sentence in
myriad ways including testing positive for cocaine use, violating curfew, and garnering new
arrests. The record contains ample evidence of the defendant’s failure to comply with the


        1
           In Harkins, our supreme court applied the “no substantial evidence” language from Grear to review
the trial court’s revocation of Harkins’ community corrections sentence despite the fact that Grear did not
involve review of the revocation of probation. Instead, at issue in Grear was the trial court’s denial of
probation. Grear, 568 S.W.2d at 285 (“The issue presented in this criminal case is whether the Court of
Criminal Appeals erred in reversing the action of the trial court in denying the respondent’s application for
a suspended sentence.”). Moreover, the statute governing probation revocation in effect at the time of both
Harkins and Grear contained no specific burden of proof to be met before the trial court could revoke
probation. See T.C.A. § 40-21-106 (1982). In the absence of a statutorily-specified burden of proof, our
courts concluded that “[t]he proof of a violation of the terms of probation need not be beyond a reasonable
doubt but is sufficient if it allows the trial court to make a conscientious and intelligent judgment.” State v.
Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984) (citing Roberts v. State, 584 S.W.2d 242, 243 (Tenn.
Crim. App. 1979)). The 1989 Sentencing Act, however, added a burden of proof for revocation cases: “If
the trial judge finds that the defendant has violated the conditions of probation and suspension by a
preponderance of the evidence, the trial judge shall have the right by order duly entered upon the minutes
of the court to revoke the probation and suspension of sentence. . . .” T.C.A. § 40-35-311(e)(1). Given the
inapt citation of Grear and the addition of a burden of proof in the 1989 Act, we question whether the “no
substantial evidence” language of Harkins remains applicable to the determination whether the trial court
abused its discretion when revoking probation.


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terms of his supervision; therefore, we discern no arbitrary action in the trial court’s
determination.


                Moreover, if the evidence is sufficient to show a violation of the terms of
supervision, the trial court may, within its discretionary authority, revoke the community
corrections sentence and require the defendant to serve his sentence in confinement “less any
time actually served in any community-based alternative to incarceration.” T.C.A. § 40-36-
106(e)(4). Furthermore, when the trial court does not alter “the length, terms or conditions
of the sentence imposed,” T.C.A. § 40-36-106(e)(2), the court is not required to hold a
sentencing hearing, see, e.g., State v. Samuels, 44 S.W.3d 489, 493 (Tenn. 2001) (observing
that the trial court must conduct a sentencing hearing before imposing “a new sentence”
following a community corrections revocation). Here, the record clearly established that the
trial court determined that the defendant should serve the originally-entered effective 12 year
sentence in confinement, with appropriate credit for time already served. The trial court did
not impose a “new sentence,” so the court was not obliged to conduct a sentencing hearing.
Also, the defendant agreed to the effective 12-year term pursuant to his plea agreement and
cannot now argue that the lengths of sentences are excessive.


              Accordingly, we affirm the judgments of the trial court.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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