                                                                                        05/11/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 19, 2017

          STATE OF TENNESSEE v. PAULA JEAN LACOMMARE

                 Appeal from the Criminal Court for Putnam County
                   No. 13-0040B       David A. Patterson, Judge
                     ___________________________________

                           No. M2016-01794-CCA-R3-CD
                       ___________________________________

The Defendant, Paula Jean Lacommare, pled guilty to initiation of the manufacturing
process of methamphetamine and was sentenced to eight years on probation. A violation
of probation warrant was issued against the Defendant for testing positive for
methamphetamine. Following a hearing, the trial court revoked the Defendant’s
probation and ordered her to serve her sentence in prison. The Defendant appeals. After
a thorough review of the record and applicable law, we affirm the judgment of the trial
court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Craig P. Fickling, District Public Defender, and Benjamin D. Marsee, Assistant District
Public Defender, for the appellant, Paula Jean Lacommare.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Victor Gernt,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Defendant was charged with the initiation of the process of manufacturing
methamphetamine and simple possession of a Schedule II controlled substance. Pursuant
to a guilty plea, the Defendant was convicted of initiation of the process of manufacturing
methamphetamine and was sentenced to eight years in confinement to be served
concurrently with a two-year sentence in a separate matter. The trial court later
suspended the Defendant’s sentence and ordered her to serve her sentence on probation.
Subsequently, the Defendant’s probation officer filed a violation of probation report,
alleging that the Defendant failed a drug screen by testing positive for methamphetamine.

       At the revocation of probation hearing, Ms. Nicole Brown, a probation officer
with the Tennessee Department of Probation and Parole, testified as to the details of the
Defendant’s time on probation. She testified that while on probation, the Defendant
tested positive for methamphetamine during a drug screen. After receiving the
Defendant’s positive drug screen results, Ms. Brown filed a violation of probation
warrant. Ms. Brown stated that the Defendant wrote her a letter admitting her use of
methamphetamine.      The laboratory results indicating a positive test result for
methamphetamine were admitted without objection at the hearing.

        Mr. Tim McLauchlin, the Executive Director of Teen Challenge of Upper
Cumberland, testified that the Defendant was a participant in his program during part of
her time on probation. He stated that Teen Challenge is a program that helps people with
substance abuse issues. He testified that the Defendant “excelled in the program” and did
not fail any drug screens while enrolled in the program. He also testified that he spoke
with the Defendant and agreed to welcome her back to the program for at least two years,
if her probation was not revoked.

       The Defendant did not dispute that she tested positive for methamphetamine
during the instant drug screen. She did not dispute that she was in violation of probation.
She stated that she wished to return to the Teen Challenge of the Upper Cumberland
program and requested that her probation be reinstated. On cross-examination, the
Defendant testified that she had been involved with Teen Challenge for seventeen years.
She conceded that despite her involvement, she continued to use drugs during that time
and used drugs while on probation.

        Following the proof put on by the State and the Defendant, the State argued that
the Defendant should be ordered to serve her sentence in confinement. The Defendant
argued that because this was her first violation, she should be afforded an opportunity to
attend the Teen Challenge program in lieu of incarceration. Following arguments, the
trial court found, by a preponderance of the evidence, that the Defendant had violated her
probation by using methamphetamine. The trial court also found that continued
involvement with Teen Challenge would not be beneficial to the Defendant. At the
conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered
her to serve her sentence in confinement.



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                                       ANALYSIS

      On appeal, the Defendant argues that the trial court abused its discretion when
revoking her probation because it should have considered the length of the sentence and
the Defendant’s “record of success while active with Teen Challenge.” The State
contends that the trial court had substantial evidence to revoke the Defendant’s probation.
We agree with the State.

       A trial court may revoke a sentence of probation if it determines by a
preponderance of the evidence that the conditions of probation have been violated.
T.C.A. § 40-35-311(e). Upon revocation, the trial court may either “commence the
execution of the judgment as originally entered” or “[r]esentence the defendant for the
remainder of the unexpired term to any community-based alternative to incarceration.”
Id. The trial court’s decision to revoke the defendant’s probation is reviewed for abuse of
discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). Abuse of discretion is found when the appellate court
determines that the trial court “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). Reversal of a revocation is only warranted if “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. Proof of the violation
is adequate when it provides the basis for a “conscientious and intelligent” judgment. Id.
The trial court’s findings of fact and determinations regarding the credibility of witnesses
carry the weight of a jury verdict. State v. Beard, 189 S.W.3d 730, 735 (Tenn. Crim.
App. 2005). Accordingly, the trial court’s findings are binding on the appellate court
unless the evidence preponderates otherwise. State v. Lewis, 917 S.W.2d 251, 257 (Tenn.
Crim. App. 1995).

        Here, the Defendant tested positive for methamphetamine while on probation.
The Defendant does not challenge the finding that she violated the terms of her probation
by using methamphetamine. Rather, she contends that the trial court erred in declining to
reinstate her probation and afford her another opportunity to attend Teen Challenge and
in ordering her to serve her sentence in confinement instead. The trial court found that
because the Defendant tested positive for methamphetamine, she had violated her
probation. There is nothing in the record to preponderate against the trial court’s finding
that the Defendant tested positive for methamphetamine and, thus, had violated her
probation. See Lewis, 917 S.W.2d at 271. We hold that because the trial court had
substantial evidence to support its conclusion that the Defendant violated her probation,
the trial court properly exercised its discretion by revoking the Defendant’s probation and
ordering the Defendant to serve her sentence in confinement. See T.C.A. § 40-35-311(e).
                                           -3-
Accordingly, reversal of the trial court’s revocation is unwarranted. Phelps, 329 S.W.3d
at 443.

                                   CONCLUSION

      Based on the foregoing analysis, we affirm the judgment of trial court.




                                          ____________________________________
                                         JOHN EVERETT WILLIAMS, JUDGE




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