        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 13, 2011

             STATE OF TENNESSEE v. ANDREW KELLY KING

                Appeal from the Criminal Court for Sullivan County
          Nos. 29090, 29287 & 29288   Robert H. Montgomery, Jr., Judge


                 No. E2011-00214-CCA-R3-CD - Filed April 17, 2012


The Defendant, Andrew Kelly King, appeals the Sullivan County Criminal Court’s order
revoking his probation for robbery, vandalism, and attempted escape and ordering his four-
year sentence into execution. The Defendant contends that the trial court abused its
discretion by revoking his probation and ordering him to serve his sentence. We reverse the
judgment of the trial court because the court improperly relied upon potential parole in
making its determination. The case is remanded to the trial court for a new hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Daniel J. Cantwell (on appeal), Kingsport, Tennessee and Patrick Denton (at the revocation
hearing), Blountville, Tennessee, for the appellant, Andrew Kelly King.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
and Barry Staubus, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        The Defendant pled guilty on May 17, 1991, and received a four-year sentence with
180 days’ confinement and the remainder served on probation. On July 17, 1992, a violation
of probation warrant was filed alleging that the Defendant failed to obey the laws of South
Carolina, failed to report as instructed by his probation officer, and failed to pay the
supervision fee. The Defendant was arrested in South Carolina on November 9, 1991, for
first degree criminal sexual conduct. The Defendant was convicted and sentenced to twenty-
five years’ confinement. After serving seventeen years and eight months of that sentence,
the Defendant was transported to Sullivan County for adjudication of his probation
violations. The Defendant pled guilty to violating his probation by failing to obey the laws
of South Carolina, failing to report as instructed by his probation officer, and failing to pay
the supervision fee.

       At the revocation hearing, the Defendant testified that in 1991, he was released on
probation and returned to South Carolina, his home state. While he served his probation in
South Carolina and paid his supervision fees, he was arrested for first degree criminal sexual
conduct. He was sentenced to twenty-five years’ confinement but was released after serving
seventeen years and eight months. He said that the South Carolina Department of
Corrections told him the State of Tennessee placed “a hold” on him and that his South
Carolina case worker unsuccessfully attempted to resolve the hold.

       The Defendant testified that while in confinement in South Carolina, he participated
in every available program, including three phases of sex offender treatment programs,
Purpose Driven Life, parenting classes, anger management, and character building classes.
He said the programs changed his attitude and his life because he realized he did not want
to return to prison. He said he was evaluated for the purpose of being placed on the sex
offender registry after his release from custody. He said that he was not a “sexual predator”
but that he was required to register with the sex offender database and would be placed on
community supervision for life.

        The Defendant testified that he planned to live in Greenville, South Carolina when
released from custody because his children and grandchildren lived there. He said that
during his time in prison, he earned minimum wage manufacturing hardwood flooring. He
said he voluntarily withheld thirty-five percent of each paycheck for child support. He said
that he was offered a job with Anderson Hardwood Flooring in Clinton, South Carolina and
that he would accept the position if the trial court allowed him to complete his original
probation. The Defendant expressed remorse for his mistakes as a young man and made no
excuses for his conduct. He said that if he received a second opportunity, he would comply
with the conditions of his release. He said prison taught him that time was precious. He said
that he had a good relationship with his children and their mother and that he planned to
continue caring for his family if released and allowed to return to South Carolina.

        On cross-examination, the Defendant testified that the victim of his first degree
criminal sexual conduct conviction was twenty-two years old. He said that although he
served seventeen years and eight months of a twenty-five year sentence in South Carolina,
he was not on parole or under supervision in South Carolina. He said his only obligation was
to register with the sex offender registry every six months.



                                              -2-
        The Defendant testified that he was found delinquent for burglary with malicious
injury, joy riding, underage possession of alcohol, and simple assault as a juvenile in South
Carolina. He agreed he was convicted of simple assault and battery as an adult in South
Carolina. He moved to Tennessee because of Job Corps but said he had no personal
connections to Tennessee. He said Anderson Hardwood Flooring was the same company he
worked for while in prison.

       On redirect examination, the Defendant testified that he was trained as a machine
technician in prison. He said the prior convictions and juvenile adjudications noted on cross-
examination occurred before he turned twenty-one years old. He turned thirty-nine years old
in February 2011.

       Upon examination by the trial court, the Defendant testified that his probation officer
in South Carolina told him about the Tennessee violation of probation warrant after he was
arrested for first degree criminal sexual conduct. He said he contacted Tennessee and was
told that the outcome of the violation of probation warrant depended upon the outcome of
the South Carolina proceedings. He said he was in South Carolina custody for a period of
time before the trial on the first degree criminal sexual conduct charge but was released on
bond.

       The trial court asked counsel for the State and the Defendant whether parole could be
transferred to another state or whether a parolee must remain in Tennessee. The prosecutor
suggested that the court hear from the probation and parole officer to answer the court’s
question. However, the officer had left the courthouse. The trial judge made the following
statement:

              [The Defendant’s] already got 7, 8 or 9 months now on a 4 year
              sentence. The odds are he’s going to, if I order him to serve it
              he’ll make parole pretty quickly. And then if parole is going to
              send him back to South Carolina then that seems to me to be an
              appropriate disposition. That means that we don’t have to deal
              with it anymore. On the other hand if he makes parole and he’s
              going to be here and supervised here and have to remain in
              Tennessee then I don’t know that that’s necessarily what I want
              to do.

              ...

              [I]v’e got a couple of questions that I need to ask . . . somebody
              from probation and parole about because it’s a technical

                                             -3-
              question that I don’t know the answer to and I haven’t made up
              my mind on it and I want to know what they tell me before I
              ultimately decide. . . .

       The trial court recessed. When the hearing resumed, the issue of whether parole could
be transferred to another state was not addressed. The trial court only heard counsel’s
arguments.

        The trial court found that the Defendant failed to address his pending probation
violations in Tennessee while he was released on bond in South Carolina before the trial on
the first degree criminal sexual conduct charge. The court noted that had the Defendant done
so, South Carolina might have sentenced the Defendant to concurrent terms with the
Tennessee probation violations. The court noted that the violation of probation warrant was
filed almost twenty years earlier but found that the Defendant was convicted of a serious
offense and refused to sentence the Defendant to probation. The court revoked the
Defendant’s probation and sentenced him to four years’ confinement with eight months’ jail
credit. The court noted that the State would not oppose parole and that the Defendant would
probably be released on parole. The court said the Defendant would be allowed to transfer
his parole to South Carolina. This appeal followed.

       On appeal, the Defendant contends that the trial court abused its discretion by
revoking his probation and ordering him to serve his four-year sentence. The Defendant
argues that the record does not contain substantial evidence supporting the trial court’s
decision to revoke the Defendant’s probation. The Defendant also argues that ordering him
to serve his four-year sentence from 1991 after serving seventeen years and eight months in
a South Carolina prison fails to serve the ends of justice, the interests of the public, and the
interests of the Defendant. The State contends that the trial court did not abuse its discretion.

        A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). If a trial court revokes a defendant’s probation, its options include ordering
confinement, ordering the sentence into execution as originally entered, returning the
defendant to probation on modified conditions as appropriate, or extending the defendant’s
period of probation by up to two years. T.C.A. §§ 40-35-308(a), (c), -310; see State v.
Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). Thus, after finding that a defendant violated the
terms of his probation, a trial court has 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)(A); see State v. Duke, 902 S.W.2d 424,
427 (Tenn. Crim. App. 1995) (citation omitted) (stating trial judges have “the discretionary
authority ‘to commence the execution of the judgment as originally entered’”); see also State

                                               -4-
v. Michael Wayne Thomas, No. M2008-02763-CCA-R3-CD, Franklin County (Tenn. Crim.
App. June 26, 2009).

       The judgment of the trial court in a revocation proceeding will not be disturbed on
appeal unless it appears that there has been an abuse of discretion. See State v. Williamson,
619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). To establish an abuse of discretion, the
record must show that there is “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) (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)). “In probation revocation hearings,
the credibility of witnesses is to be determined by the trial judge.” State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991) (citation omitted); see State v. Timothy A.
Johnson, No. M2001-01362-CCA-R3-CD, Davidson County (Tenn. Crim. App. Feb. 11,
2002). “An accused, already on probation, is not entitled to a second grant of probation or
another form of alternative punishment.” State v. Angela Bright, No. E2000-03146-CCA-
R3-CD, Blount County, slip op. at 3 (Tenn. Crim. App. Jan. 2, 2002) (citing State v. James
Moffit, No. 01C01-9010-CC-00252, slip op. at 1 (Tenn. Crim. App. Apr. 4, 1991)).

       The record shows that the Defendant violated the conditions of his probation and that
he pled guilty to violating his probation. The Defendant was convicted of first degree
criminal sexual conduct in South Carolina while on probation in Tennessee and sentenced
to twenty-five years’ confinement. Although the trial court noted that the violation of
probation warrant was filed almost twenty years earlier, it found that the Defendant was
convicted of a serious offense while released on probation.

        The record also shows, however, that in making its decision, the trial court improperly
relied upon its belief in the transferability of parole from Tennessee to South Carolina. We
note, as well, that the information was not a proper consideration. The trial court believed
that the Defendant would be paroled quickly and said it would be an appropriate disposition
to sentence the Defendant to confinement if the Defendant would be allowed to transfer his
parole to South Carolina. The court stated in its findings that the Defendant would be
allowed to transfer his parole.

       In addressing parole dates, this court has said that such matters have been vested in
the executive branch, not the judiciary. State v. Lorenzo Puente Salazar, No. 02C01-9105-
CR-00098, Shelby County, slip op. at 8 (Tenn. Crim. App. Jan. 15, 1992). This court has
also said that “nothing in the principles and purposes of sentencing provided by the 1989
Sentencing Act allows for a sentence to be determined in anticipation of contingencies
which, by legislative act, have been left to the future discretion of parole authority.” Id.; see
State v. Randy Hodge, No. 91, Jefferson County, slip op. at 17 (Tenn. Crim. App. Mar. 5,

                                               -5-
1991). Tennessee Code Annotated section 40-35-311 “does not give the trial judge the
authority to consult outside entities or persons in making its determination. . . .” State v.
Charles Hopson Stewart, No. M2008-00474-CCA-R3-CD, Warren County, slip op. at 5
(Tenn. Crim. App. Oct. 6, 2008); see T.C.A. § 40-35-311. The Defendant is entitled to a new
hearing.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is reversed and the case is remanded for a new hearing.




                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -6-
