        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 25, 2012

              STATE OF TENNESSEE v. JONATHAN RADFORD

            Direct Appeal from the Criminal Court for Hamilton County
                         No. 274670 Don W. Poole, Judge




                No. E2012-00323-CCA-R3-CD - Filed August 22, 2012




The Defendant, Jonathan Radford, pled guilty to two counts of facilitation of aggravated
robbery. Pursuant to the plea agreement, the trial court sentenced the Defendant, as a Range
I offender, to two concurrent five-year sentences and ordered him to serve eleven months and
twenty-nine days in confinement, with the remainder to be served on supervised probation.
The Defendant’s probation officer filed a probation violation report, the second such report
filed against the Defendant. After a hearing, the trial court revoked the Defendant’s
probation for a second time and ordered that he serve the balance of his sentences in
confinement. On appeal, the Defendant contends that the trial court erred when it revoked
his probation. After reviewing the record, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and R OGER A. P AGE, JJ., joined.

Richard Kenneth Mabee (on appeal) and Anna Protano-Biggs (at trial), Chattanooga,
Tennessee, for the appellant, Jonathan Radford.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                          I. Procedural Background and Facts
        This case arises from the Defendant’s actions that resulted in his second probation
violation. A Hamilton County grand jury indicted the Defendant for two counts of
aggravated robbery. On July 1, 2010, the Defendant pled guilty to two counts of facilitation
of aggravated robbery, a Class C felony. Pursuant to the plea agreement, the trial court
sentenced the Defendant to two concurrent five-year sentences. The trial court ordered the
Defendant to serve eleven months and twenty-nine days of the sentence, with the remainder
to be served on supervised probation. On March 15, 2011, the Defendant’s probation officer
filed a probation violation report, alleging that the Defendant had violated the terms of his
probation. After a hearing, the trial court revoked the Defendant’s probation, ordered him
to serve another eleven-months and twenty-nine days in confinement, and ordered that the
Defendant then be released to supervised probation for the remainder of his sentence.

        On December 13, 2011, the Defendant’s probation officer filed a second probation
violation report, alleging the following: (1) the Defendant failed to provide proof of
employment; (2) he failed to report a change of address; (3) he failed to report to his
scheduled office visits; (4) he missed several curfew checks; (5) he failed to pay on his
restitution; and (6) he failed to submit his DNA. At the hearing on the Defendant’s probation
violation, the Defendant’s probation officer, Richard Irvin, testified that he filed a probation
violation report because the Defendant “missed his curfew and stopped reporting again.”
Officer Irvin confirmed that the Defendant had previously violated his probation, served
eleven months and twenty-nine days as a result of his violation, and was released back onto
probation. Officer Irvin testified that, after the Defendant was released back onto probation,
he was not home for the first curfew check. Officer Irvin explained that he visited the
address that the Defendant “put on his monthly reporting form,” which “was the address that
he was supposed to be at . . . .” The officer spoke with the Defendant’s mother at the first
curfew check, and his mother said that the Defendant “hadn’t been home in a couple of
days.” Officer Irvin stated that he attempted subsequent curfew checks, and “nobody
answered the door.” Officer Irvin testified that, in addition, the Defendant failed to report
on his scheduled report dates. The officer stated that, because the Defendant failed to report,
he also missed a scheduled DNA test, which was to be done at the probation office.

       On cross-examination, Officer Irvin acknowledged that, after the Defendant’s return
to probation, he reported on his first two report dates.

        The Defendant admitted that “this [was] not his first [probation] revocation.” He
further admitted that he violated his probation, as alleged in the probation violation report.
The Defendant claimed that he violated his probation because of a misunderstanding with
his mother. The Defendant testified that his mother took a “mental health medication,” and
it was “difficult” for him to live in the home when his mother did not take the medication as
directed. The Defendant said that he did not explain the situation to Officer Irvin. He stated

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that he would communicate with his probation officer if the trial court placed him back on
probation.

        Regarding the curfew checks, the Defendant testified that he was not at his home
because his mother “kicked [him] out.” He stated that he went “[r]ight around the corner to
[his] grandmother’s house.” The Defendant said that he knew about the curfew checks, and
he called Officer Irvin to “let him know [he] was going to be a little late.” The Defendant
said that Officer Irvin told him that he was in violation of his probation. The Defendant
testified that, because Officer Irvin told him that he was in violation of his probation, he
decided not to report at his next report date. He further testified that the officer did not
explain to him that the DNA test would occur at his scheduled report appointment. The
Defendant, however, stated that he was “starting to understand what it requires to be on state
probation.” He testified that he was “trying to get a job.” The Defendant explained to the
trial court that he “wasn’t trying to do nothing wrong” and had “been staying out of trouble.”

       On cross-examination, the Defendant admitted that he did not pay restitution as
ordered by the trial court. He also admitted that he did not provide a DNA sample. The
Defendant acknowledged that his prior revocation was based on curfew violations. The
Defendant admitted that, even after a second opportunity to be on probation, he continued
to violate the curfew. The Defendant stated that he thought he just had to “stay out of
trouble” on probation, but he admitted that his probation officer explained the curfew rules
to him when the trial court first placed him on probation.

        Based upon this evidence, the trial court found, “by a preponderance of the evidence
that [the Defendant] ha[d] violated the terms of his probation again, he ha[d] missed curfew,
he stopped reporting, [and] he didn’t give his DNA . . . .” The trial court noted that it had
discussed the importance of those requirements with the Defendant during the hearing on the
Defendant’s previous probation violation. Further, because the trial court had previously
revoked the Defendant’s probation, it highlighted that the Defendant had failed to comply
with measures less restrictive than confinement. As a result, the trial court ordered the
Defendant to serve his five-year sentences in confinement.

       It is from this judgment that the Defendant now appeals.

                                         II. Analysis

       On appeal, the Defendant contends that the trial court erred when it revoked his
probation sentence because his violations were “technical” in nature, and he received no
“new arrests.” Further, he asserts that the trial court erred because the order of incarceration
was “excessive” in comparison to his violations. The State counters that the Defendant

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admitted that he violated the terms of his probation, which “constitutes substantial evidence
supporting [the trial court’s] finding.” As a result, the State argues that the trial court did not
abuse its discretion by ordering the Defendant to serve his sentence in confinement. We
agree with the State.

      In Tennessee, the procedure for a revocation of a probation sentence is covered in
Tennessee Code Annotated section 40-35-311. The statute provides as follows:

       Whenever it comes to the attention of the trial judge that any defendant, who
       has been released upon suspension of sentence, has been guilty of any breach
       of the laws of this State or has violated the conditions of probation, the trial
       judge shall have the power to cause to be issued under such trial judge’s hand
       a warrant for the arrest of such defendant as in any other criminal case.
       Regardless of whether the defendant is on probation for a misdemeanor or a
       felony, or whether the warrant is issued by a general sessions court judge or
       the judge of a court of record, such warrant may be executed by a probation
       officer or any peace officer of the county in which the probationer is found.

T.C.A. § 40-35-311(a) (2010).

        The essential question facing the trial court in a probation revocation proceeding is
whether the trial court’s determination will subserve the ends of justice and the best interest
of both the public and the probationer. See Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956).
When a trial court determines by a preponderance of the evidence that a probationer has
violated the conditions of his or her probation, the trial court has the authority to revoke
probation. T .C.A. § 40-35-311(e) (2010). Upon finding that the defendant has violated the
conditions of probation, the trial court may revoke the probation and either: (1) order
incarceration; (2) order the original probationary period to commence anew; or (3) extend
the remaining probationary period for up to two additional years. State v. Hunter, 1 S.W.3d
643, 644 (Tenn. 1999); see T.C.A. §§ 40-35-308, -310, -311 (2010). The defendant has the
right to appeal the revocation of his probation and entry of his original sentence. T.C.A. §
40-35-311(e)(2) (2010). After finding a violation, the trial court is vested with the statutory
authority to “revoke the probation and suspension of sentence and cause the defendant to
commence the execution of the judgment as originally entered . . . .” T.C.A. § 40-35-
311(e)(1) (2010); accord Hunter, 1 S.W.3d at 646 (holding that the trial court retains the
discretionary authority to order the defendant to serve his or her original sentence in
confinement). Furthermore, when probation is revoked, the trial court may order “the
original judgment so rendered to be in full force and effect from the date of the revocation
of the suspension . . . .” T.C.A. § 40-35-310(a) (2010).



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        Because Tennessee law permits the trial court to revoke probation only upon finding,
by preponderance of the evidence, that the defendant has violated the terms of his or her
probation, this Court will not disturb the trial court’s determination absent an abuse of
discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v. Farrar, 355 S.W.3d
582, 586 (Tenn. Crim. App. 2011), perm. app. denied (Tenn. Oct. 18, 2011); State v. Reams,
265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). A finding of abuse of discretion “reflects
that the trial court’s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.” Shaffer, 45
S.W.3d at 555 (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

       In the case presently before us, the Defendant does not contest that he violated his
probation by failing to report as scheduled and by missing his curfew. Further, a
preponderance of the evidence clearly shows that he violated the terms of his probation. The
Defendant argues, rather, that the trial court should have returned him to probation because
his violations were “technical” in nature and that received no “new arrests.” The record
herein, however, supports the trial court’s finding that the Defendant violated his probation.
In addition, the record shows that measures less restrictive than confinement had recently
been applied unsuccessfully to the Defendant. See T.C.A. 40-35-103(1)(C) (2010).
Therefore, once the trial court has found that a defendant has violated the terms of his or her
probation, it is vested with the statutory authority to revoke the probation and order him to
serve some or all of his original sentence in confinement followed by probation. Hunter, 1
S.W.3d at 644. Under these circumstances, we find no abuse of discretion in the trial court’s
revocation of the Defendant’s probation and its ordering the Defendant to serve his
concurrent five-year sentences in confinement. The Defendant is not entitled to relief on this
issue.

                                      III. Conclusion

      Based on the above mentioned reasoning and authorities, we affirm the trial court’s
judgment.




                                                    ___________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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