         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 21, 2007

      STATE OF TENNESSEE v. MATTHEW JORDAN BUENTIEMPO

                      Appeal from the Circuit Court for Blount County
                   Nos. C-13221 & C-13461     D. Kelly Thomas, Jr., Judge


                  No. E2006-01791-CCA-R3-CD - Filed September 28, 2007


The Appellant, Matthew Jordan Buentiempo, appeals the order of the Blount County Circuit Court
revoking his probation and reinstating his original sentences of confinement. On appeal,
Buentiempo alleges that the trial court erred in revoking his probation. After a review of the record,
we affirm.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER , JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee; and Stacy Nordquist, Assistant Public Defender, Maryville,
Tennessee, for the Appellant, Matthew Jordan Buentiempo.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Tammy Harrington, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                             OPINION

                                       Factual Background

        On February 19, 2002, the Appellant pled guilty to two counts of possession of a Schedule
I controlled substance with intent to deliver or sell. Pursuant to a plea agreement, the trial court
imposed an effective sentence of eight years with the Tennessee Department of Correction, with a
recommendation of placement in the Department’s boot camp program. On September 9, 2003, after
his completion of the boot camp program, the Department transferred the Appellant to supervised
probation status.

       On June 26, 2006, a probation violation warrant was issued for the Appellant alleging that
he had violated the following rules:
               2.     I will obey the laws of the United States or any state in which
                      I may be, as well as any municipal ordinances.
              ....

               5.     I will work steadily at a lawful occupation. If I become
                      unemployed, I will immediately report this to my
                      Probation/Parole Officer and will begin to look for another
                      job.
              ....

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

               9.     I will agree to pay all required fees to the supervision fund,
                      criminal injuries fund, court costs, restitution and fines.
              ....

              11.     I will perform (8) hours community service work per month
                      while under supervision unless waived by the
                      Probation/Parole Officer and manager.

The warrant alleged as follows:

              Violation of Rule #2, in that the [Appellant] was arrested on 6/8/06
              in Blount County and charged with Indecent Exposure and Public
              Intoxication. On 6/24/06 the [Appellant] was arrested in Blount
              County and charged with DUI.

              Violation of Rule #5, in that the [Appellant] has failed to maintain
              steady employment or provide proof of such[.]

              Violation of Rule #8, in that the [Appellant] admitted to smoking
              THC and drinking daily on 4/26/06.

              Violation of Rule #9, in that the [Appellant] owes $225 on probation
              fees.

              Violation of Rule #11, in that the [Appellant] has failed to perform 8
              hours community service work as instructed.




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        A probation revocation hearing was held on August 21, 2006, at which the Appellant and his
probation officer provided testimony. The trial court entered an order on August 24, 2006, revoking
the Appellant’s probation and ordering that the Appellant serve his sentences as originally entered.
The Appellant filed a motion for bond pending appeal, which the trial court denied. The Appellant
timely filed a notice of appeal.

                                                Analysis

         The Appellant argues that the trial court abused its discretion in revoking his probation. A
trial court may revoke probation and order the imposition of the original sentence upon a finding by
a preponderance of the evidence that the person has violated the conditions of probation. T.C.A. §
40-35-310, -311 (2006). The decision to revoke probation rests within the sound discretion of the
trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). On appeal, the findings
of the trial court have the weight of a jury verdict. State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim.
App. 1980). The judgment of the trial court revoking probation will not be disturbed on appeal
absent an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order for the
reviewing court to find that the trial court abused its discretion, it must be established that the record
contains no substantial evidence to support the conclusion of the trial court that a violation of the
conditions of probation has occurred. Id. (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);
Delp, 614 S.W.2d at 398). The trial court need not find a violation of the terms of probation beyond
a reasonable doubt, and the evidence is sufficient to support a revocation if the evidence shows that
the trial judge exercised a conscientious and intelligent judgment, rather than acting arbitrarily. State
v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997); State v. Leach, 914 S.W.2d 104, 106
(Tenn. Crim. App. 1995).

        At the hearing held on August 21, 2006, probation officer Beverly Kerr testified that she
began supervising the Appellant upon his release from the Department’s boot camp program on
September 9, 2003. Kerr testified that, for the first eighteen months to two years of probation, the
Appellant did very well by showing up for his appointments, maintaining employment, and attending
school. Kerr testified, however, that within the year prior to the probation violation hearing, the
Appellant had experienced personal problems which affected his performance. Kerr recalled that
during the period, the Appellant lost his job and began abusing alcohol and smoking marijuana. Kerr
further stated that the Appellant had been arrested on June 6, 2006, for the charges of indecent
exposure and public intoxication, to which he subsequently pled guilty. Kerr testified that the
Appellant was also arrested on June 24 for DUI. Kerr also described the Appellant’s community
service performance and payment of probation fees as beginning “to slack off” during this period,
and she recalled that “he did poorly in all those areas within the last year.”

        The Appellant offered testimony at the hearing which largely corroborated Kerr’s account
of his probation history. He admitted that he had relapsed within the previous year and that he had
been drinking “[a]nywhere from a six to a twelve-pack” of beer every night, “if not more.” He
explained that Kerr had suggested that he try to get into an alcohol abuse treatment center, and that
he was placed on the waiting list for such a program, but he continued to drink in the interim. The


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Appellant admitted that he pled guilty to indecent exposure and public intoxication charges incurred
in June of 2006 and that he had also been arrested for DUI. The Appellant further admitted that he
had not been performing community service or paying his probation fees as directed. He also
testified that he had eventually gotten into an alcohol abuse treatment facility in July of 2006 and had
successfully completed the program.

        At the conclusion of the probation violation hearing, the trial court announced its findings
and ruling as follows:

                       Mr. Buentiempo was placed on probation after completing the
               Boot Camp Program with the Department of Correction. And while
               on probation did very well. And then - - and clearly has the ability to
               do well. Then he began abusing alcohol and drugs again and then all
               of the things that go with it, including two new convictions and
               another one pending, which barring something unusual will result in
               a conviction, if he’s being truthful about the drinking and everything
               he’s been doing. But maybe not. You know, they might have caught
               him at an off time.

                      But he has two convictions and also as a result was slack on
               the working, paying costs, not doing community service as he was
               supposed to. All of the things that go along with a change in attitude
               when a person is actively abusing drugs and alcohol. And the
               underlying offenses involve selling and delivering Schedule I drugs,
               according to the reports I just read, LSD and Ecstasy to, among other
               people, high school students.

                      So, Mr. Buentiempo, you’re a very smart young man and you
               had your opportunity and did very well with it, and for some reason
               chose to quit doing well. And I can’t take the risk on a probationer
               with a history of selling LSD and Ecstasy, risking the lapses in
               judgment that come with alcohol and drug use, and the convictions.

                       So, your probation is revoked. You will serve the balance of
               this sentence in custody.

         We conclude that the trial court did not abuse its discretion in revoking probation, therefore,
the Appellant’s argument on appeal is without merit. Discretion is abused in a probation revocation
case if the record contains no substantial evidence to support the conclusion of the trial court that
a violation of the conditions of probation has occurred. Harkins, 811 S.W.2d at 82. In this case, the
evidence in the record was clearly sufficient for the trial court to have found violations of the
conditions of the Appellant’s probation. Accordingly, we affirm the judgment of the trial court
revoking the Appellant’s probation and reinstating his original sentence of confinement.


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                                CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court.



                                             ___________________________________
                                             DAVID G. HAYES, JUDGE




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