            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs November 20, 2013

                STATE OF TENNESSEE v. MONTEZ DEWAYNE BIRT

                      Appeal from the Criminal Court for Hamilton County
                               No. 271916 Don W. Poole, Judge


                     No. E2013-00957-CCA-R3-CD-FILED-MARCH 3, 2014


The Defendant, Montez Dewayne Birt, pled guilty to aggravated burglary and received a six-
year, suspended sentence. Thereafter, a violation warrant was filed, and following a hearing,
the trial court revoked the sentence and ordered the Defendant to serve the balance of his
sentence in confinement based upon his failure to report to his probation officer. The
Defendant appeals the revocation and order of total incarceration. Upon review, we affirm
the judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which JERRY L. S MITH and
J AMES C URWOOD W ITT, J R., JJ., joined.

Ardena J. Garth, District Public Defender, and Richard Kenneth Mabee, Assistant District
Public Defender, for the appellant, Montez Dewayne Birt.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
William H. Cox, III, District Attorney General; and Jason Demastus, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION
                                       FACTUAL BACKGROUND

      For offenses committed against Matt Winget on August 14, 2008, the Defendant was
charged with aggravated burglary, a Class C felony, and theft of property, a Class A
misdemeanor.1 See Tenn. Code Ann. §§ 39-14-103, -105, -403. The Defendant pled guilty



1
    We are unable to provide the factual basis underlying these offenses because a transcript of the guilty plea
                                                                                                   (continued...)
to aggravated burglary on September 29, 2009, and the theft charge was dismissed. Pursuant
to the terms of the plea agreement, the Defendant received a six-year sentence, as a Range
I, standard offender, to be served on supervised probation. As a part of the plea agreement,
the Defendant also admitted he was in violation of two prior suspended sentences (Case No.
258278, a one-year sentence, and Case No. 261270, a three-year sentence) and agreed that
the six-year sentence in this case would be served consecutively to those sentences.

        After serving time in the prior cases, the Defendant was released from the Morgan
County Correctional Complex on July 9, 2011. The Defendant was required to report to the
Chattanooga Probation Office on this case within seventy-two hours of his release.
Thereafter, on July 18, 2012, a probation violation report was filed, wherein it was alleged
that the Defendant had engaged in new criminal activity on November 21, 2011, and on April
18, 2012, resulting in charges for vandalism/malicious mischief, burglary, aggravated
robbery, aggravated burglary, and two counts of theft. It was further stated that the
Defendant had failed to report to his probation officer since his July 9, 2011 release from
incarceration, including failure to inform that officer of these new charges. He was
considered an absconder from supervision, and a warrant was issued for the Defendant’s
arrest.

        At the revocation hearing which followed, Justin Strand testified that he was the
Defendant’s probation officer in this case. Mr. Strand stated that the violation warrant was
filed based upon the Defendant’s failure to report and acquisition of new charges. According
to Mr. Strand, the new charges against the Defendant were still pending, and the Defendant
had never reported “at all” following his release from incarceration. Mr. Strand was asked
if he had tried to initiate contact with the Defendant during this time, and Mr. Strand replied
that he had mailed a letter to the Defendant’s listed address on March 20, 2012, which
instructed him to report by April 3, 2012. That letter was not returned, and the Defendant
failed to report. When asked if he had any further contact with the Defendant, Mr. Strand
recalled that the Defendant left him a message “[o]nce or twice” and that he had actually
spoken with the Defendant on one occasion about “[t]his hearing.” Mr. Strand also testified
that the Defendant reported for “about a year” on his probation in the two, prior cases before
that four-year sentence was revoked. On cross-examination, Mr. Strand confirmed that this
was the Defendant’s “first violation” in this case.

       The trial court noted that there was “apparently no proof” from the State on the new
charges, and then asked Mr. Strand if the Defendant had reported those new charges to him.
Mr. Strand stated that the Defendant had not. The State offered no other proof.


1
    (...continued)

hearing is not included in the appellate record.
                                                   -2-
        The twenty-seven-year-old Defendant then testified “for the limited purposes of this
probation hearing,” meaning no questions would be asked about the pending charges. When
asked “what happened with [his] probation and [his] failure to appear,” the Defendant gave
the following response:

                 I had three years probation, and like when I had went to prison, I
          thought I had the split confinement, get out on six years unsupervised. That’s
          what I thought. But when I had got out, I didn’t know I had to report to no
          P.O. though, and like I had caught some new charges, you know. But if I
          knowed [sic] I had to go through the P.O. I had, I would have reported then.
          My memory’s been messed up and I draw SSI check a month, then like I didn’t
          know I had to report, at all.

The Defendant confirmed that he believed that this six-year sentence was unsupervised. He
also explained that he received a check from social security due to his “slow learning.” He
further stated that he could not read very well and would have to ask questions to gather
information.

        The Defendant asked for a “second chance” and claimed he would “report anytime
that [the judge] want[ed him] to.” He requested an alternative to incarceration—either “start
[his] probation over and put [him] on intensive probation or house arrest[.]” If granted house
arrest, he would live with his mother, who was present in the courtroom. There was a
telephone at that location. He testified that he also had been accepted to the “House of
Refuge” program and was “willing to do public workdays[.]” According to the Defendant,
his previous incarceration was his “first time going to prison[,]” and he did not “want to go
back.” He explained that he wanted to be able to provide care for his five-month-old child.

        On cross-examination, the Defendant confirmed that his criminal history2 included “at
least two different sets of charges . . . that [he had] been sentenced on, did some time[,] and
got on probation[.]” He agreed that he “ultimately got violated” and “had these new charges
still pending[.]” The Defendant stated that he did not recall reviewing his plea agreement
with his attorney in this case and that he did not remember stating at the plea hearing that he
was agreeing to supervision.

        The Defendant was then asked why he had attempted to contact Mr. Strand via
telephone. The Defendant replied, “To try to find out what was this about, that I was trying
to ask him and I called him and I was in Silverdale, I was trying to tell him that I didn’t know
I had to report at all.” According to the Defendant, he only knew to call Mr. Strand because


2
    No presentence report is included in the record.
                                                       -3-
“[a] lawyer” had told him to do so. The Defendant further stated that he had never received
a letter in the mail from Mr. Strand. Finally, the Defendant could not remember what he was
told about reporting, if anything at all, from Morgan County officials, when he was released
from their custody on July 9, 2011.

        Upon questioning from the trial court, the Defendant stated that he was unaware that
the plea agreement specifically stated that the sentence was to be served on supervised
probation. He further explained that he was not on parole following his release, that he “had
flattened” his sentence, serving thirty-two months.

       In closing arguments, the State suggested, “given his circumstances, given that he did
not have a place to go, maybe an 11/29 to serve and reinstate and give him a chance to
comply with P.O. Strand and report like he’s supposed to, maybe that would be appropriate.”
Defense counsel asserted, “The issue is, and it may be my argument and we may have to deal
with that with other proof, I don’t know if Morgan County would have given him something
about this case” because “TDOC did not have this case.” The court replied, “And I don’t
know that either.” Defense counsel further noted that the State had offered no proof about
the new charges and that this case was simply about not reporting. Defense counsel
requested “something short of requiring him to serve all the time in this matter[.]”

      The trial court found that the Defendant had violated the conditions of his probation
and ordered the entire six-year sentence into execution. In so concluding, the trial court
reasoned as follows:

               Well, the records clearly show it, and certainly the only thing that’s
       before the [c]ourt today is [the Defendant’s] failure to report to the probation
       office, for about over a year it looks like, until the sentence was executed. But
       I am looking at the papers and he did indicate that he certainly had some
       knowledge of what he was doing. He conceded violations in two cases, a one-
       year case and a three-year case, and this was . . . consecutive to that,
       suspended, supervised.
               So I just find it difficult to believe, based upon the proof I’ve heard, that
       [the Defendant] did not realize that he had to report to a probation office when
       he was released from custody. The file indicates that this was executed on
       August 1, 2012, so for over a year after letters were written to [the Defendant],
       he did not report to the probation office. Now, certainly if he’s not reporting,
       as a secondary matter is you’re not reporting new cases, but I don’t consider
       guilt or innocence in regard to the new cases, but the failure to report, or
       failure to report those new charges, I understand those, since he wasn’t
       reporting, but the principal violation is the failure to report. I do find, clearly,

                                                -4-
         by [a] preponderance and by overwhelming evidence, that he has violated the
         terms of his probation.
                 . . . The credible evidence indicates that it was certainly supervised and
         that based upon the file, it indicates that [the Defendant] did now or should
         have known and should have reported, and I find he did not report.

The Defendant now appeals that decision.

                                                     ANALYSIS

        On appeal, the Defendant argues that the trial court erred when it revoked his
probationary sentence and ordered the full six-year sentence into execution. Specifically, the
Defendant contends “that there was an abuse of discretion by the trial judge, based upon the
sparsity of evidence, and upon what appears to be just a misunderstanding of his
responsibilities by the [Defendant] in not reporting when he got out of prison on the separate
case.” The State responds that the trial court properly revoked the Defendant’s probationary
sentence and ordered him to serve his original sentence. We agree with the State.

       A trial court may revoke a sentence of probation upon finding by a preponderance of
the evidence that the defendant has violated the conditions of release. Tenn. Code Ann. §
40-35-311(e). The decision to revoke probation is in the sound discretion of the trial judge.
State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991). The judgment of the trial court to revoke
probation will be upheld on appeal unless there has been an abuse of discretion. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). To find 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.” Id. (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)); see also State v. Farrar, 355 S.W.3d 582, 586
(Tenn. Crim. App. 2011). Such a finding “‘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.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

       The trial court found that the Defendant violated the conditions of his probation solely
on his failure to report following his release from incarceration on July 9, 2011.3 The



3
  The State incorrectly states that the trial court found the additional violations of “incurring new charges, and by failing
to inform his probation officer of those new charges.” To the contrary, the trial court noted that the State (continued...)
                                                                                                               had failed to

                                                            -5-
Defendant argues that based “upon the sparsity of evidence” and his “misunderstanding of
his responsibilities . . . when he got out of prison on the separate case[,]” the trial court
abused its discretion in revoking his probation. However, the trial court did not find the
Defendant’s testimony credible, noting that the plea paperwork referenced supervision, that
the Defendant’s probation officer had written him advising him to report, and that the
Defendant failed to report for over a year. The trial court determined that the Defendant “did
know or should have known and should have reported,” but he failed to do so. In a probation
revocation hearing, the credibility of the witnesses is determined by the trial court. Mitchell,
810 S.W.2d at 735. We may not disturb the trial court’s finding in this regard. A “technical
violation” is sufficient to support a probation revocation. See, e.g., State v. Isaac Thomas,
No. E2011-00565-CCA-R3-CD, 2011 WL 6016916, at *2 (Tenn. Crim. App. Dec. 5, 2011)
(affirming revocation because defendant violated his probation by repeatedly failing to
report, by failing to provide proof of employment, by moving without notifying his probation
officer, and by not having a successful home visit completed), perm. app. denied, (Tenn.
Mar. 7, 2012); State v. Herbert Russell Johnson, No. E2003-02580-CCA-R3-CD, 2004 WL
1170030, at *4 (Tenn. Crim. App. May 26, 2004) (affirming revocation because defendant
violated the terms of his probation by leaving his mother’s residence, missing his scheduled
probation meetings, and failing to contact his probation officer).

       The Defendant also asserts that the trial court abused its discretion in ordering the
Defendant to serve the remainder of his sentence in confinement. Rather, “if a trial court
determines that a defendant has violated the conditions of probation, it has the authority to
revoke the defendant’s probation and cause execution of the original judgment.” State v.
Hunter, 1 S.W.3d 643, 646 (Tenn. 1999). The trial court acted within its discretionary
authority to revoke the Defendant’s probation and impose his original six-year sentence. See
Tenn. Code Ann. §§ 40-35-310, -311(e). Accordingly, the Defendant is entitled to no relief.

                                                CONCLUSION

       In sum, we conclude that the trial court did not err by revoking the Defendant’s
probationary sentence and by ordering him to serve the balance of his original, six-year
sentence in confinement. Accordingly, we affirm the judgment of the trial court.


                                                               ___________________________________
                                                               D. KELLY THOMAS, JR., JUDGE


3
    (...continued)

put on any proof of the new charges and that, while the Defendant had failed to report those new arrests, this was “as
secondary matter” of the “principal violation” of failing to report.
                                                         -6-
