        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 24, 2012

           STATE OF TENNESSEE v. CHRISTOPHER M. FOSTER

               Direct Appeal from the Circuit Court for Blount County
                      No. C-19025      David R. Duggan, Judge




               No. E2011-00589-CCA-R3-CD - Filed February 22, 2012


The appellant, Christopher M. Foster, pled guilty in the Blount County Circuit Court to
robbery and received a five-year sentence to be served on supervised probation.
Subsequently, the trial court revoked his probation and ordered that he serve his sentence in
confinement. On appeal, the appellant contends that the trial court abused its discretion by
not granting him another alternative sentence. Based upon the record and the parties’ briefs,
we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER, and JEFFERY S. B IVINS, JJ., joined.

Charles Carpenter, Maryville, Tennessee, for appellant, Christopher M. Foster.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Betsy Brockman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On July 23, 2010, the appellant pled guilty to robbery, a Class C felony. Pursuant to
the plea agreement, the appellant received a five-year sentence to be served on supervised
probation. The appellant also was to have no contact with the victim and pay restitution. On
December 1, 2010, the appellant’s probation officer filed a Probation Violation Report,
alleging that the appellant violated his probation by being arrested, failing to report his
arrests, failing to obtain employment, and failing to make a court cost agreement or pay
restitution.

       At the appellant’s February 11, 2011 probation revocation hearing, Terry Fowlkes, the
appellant’s probation officer, testified that the appellant was placed on probation on July 23,
2010, and that she had her initial interview with him on August 3, 2010. She said that at
some point, she learned “through our Knoxville office” about the appellant’s new arrests.
The appellant had been charged with disorderly conduct on October 12, 2010, and
misdemeanor theft on October 27, 2010. He was convicted of the offenses. On December
3, 2010, the appellant was charged with criminal impersonation; resisting a stop, frisk, halt,
or search; and criminal trespass. The appellant was convicted of criminal trespass, but the
other two charges were dismissed. Fowlkes said that in addition to the appellant’s new
charges, he also violated his probation by failing to obtain employment and by not entering
into an agreement to pay court costs or restitution.

        On cross-examination, Fowlkes testified that she learned about the appellant’s new
arrests shortly after they occurred. She said she last met with the appellant in person in
November 2010. During the meeting, the appellant filled out a questionnaire. Fowlkes said
that the questionnaire asked if the appellant had been arrested since their last meeting and
that the appellant did not “mark” on the form. However, she and the appellant discussed his
arrests during the meeting. In December 2010, Fowlkes filed the probation violation report.

        The appellant acknowledged that he was arrested and convicted of some of the new
offenses. However, this was his first probation violation. He said that he had been in
custody since December 3, 2010, and asked that he be released back into the community. The
appellant said that his aunt was willing to give him a job and that he would be doing
cleaning, maintenance, and carpentry work for her. He acknowledged that having a job
would allow him to pay court costs and restitution. He said that he and his fiancé had to be
out of their home by February 28 but that they could stay with his father and grandmother.

        The appellant testified that he was arrested for disorderly conduct “just for being loud
in the car and making phone calls.” He explained that he was in his sister’s car and had to
keep his foot on the gas pedal to keep the engine running. Someone telephoned the police
and reported that the appellant was revving the engine. For the misdemeanor theft charge,
the appellant borrowed a man’s cellular telephone because his own phone was not working.
The appellant forgot to give the phone back to the man, and the man reported it stolen. The
police arrested the appellant. The day the appellant was released from jail, he telephoned his
probation officer and told her about the arrests. He acknowledged, however, that she could
have found out about the arrests prior to his call. The appellant said that he had turned in
several employment applications. He surmised that he was not hired because of his criminal

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history. The appellant had paid some of his probation fees but did not have any money to pay
court costs. He said that he had never been on probation before, that he “messed up,” and
that his family needed him.

        On cross-examination, the appellant acknowledged that he had not paid any probation
fees since November 2010. He also acknowledged that he pled guilty to the new charges and
that he had been on probation previously in Knox County. He said that he had filed a
“social” order of protection against his fiancé but that they lived together because “we’re
allowed to be around each other.” The appellant served three years in prison for a prior
aggravated burglary conviction.

       Judy Baker, the appellant’s grandmother, testified for the appellant that she was not
in good health and that the appellant was “a help” to her. She said that if the trial court
released him from jail, he could live with her and help her around the house.

      Toni Cooper, the appellant’s aunt, testified that she had started managing an apartment
complex, would hire the appellant, and had plenty of work for him. On cross-examination,
Baker said that although the appellant did not have a driver’s license, “his sister could
probably transport him back and forth to work.”

       Carrie Harris, the appellant’s fiancé, testified that she had a driver’s license and a car
and would be “[m]ore than happy” to drive the appellant to work. She said that she and the
appellant “had some issues” previously and that a “social order of protection” was in place.
However, they could still talk with each other and live together. She said, “He’s just not
allowed to do any physical, mental [harm], hold me against my will.”

      Angela McCowan, the appellant’s sister, testified that their grandfather was a drug and
alcohol counselor. If the court released the appellant from jail, he would be living with his
grandfather and grandmother.

        The trial court found that the appellant violated his probation by being arrested and
convicted of disorderly conduct, misdemeanor theft, and criminal impersonation. The court
also found that the appellant violated his probation by failing to report the first two arrests
to his probation officer, by being unemployed, and by failing to make payments toward his
court costs and restitution. The court said the appellant was “given an opportunity to stay out
of jail” for the robbery conviction but began committing crimes almost immediately after he
pled guilty. The trial court noted that despite the appellant’s guilty pleas to the new charges,
he suggested during the hearing that he was not guilty. The court also found the appellant
not credible because he testified that he had not been on probation previously when he had



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been on probation in Knox County. The trial court revoked the appellant’s probation and
ordered that he serve his five-year sentence in confinement with credit for time served.

                                         II. Analysis

       The appellant challenges the trial court’s ordering him to serve his sentence in
confinement, arguing that the court should have granted him another alternative sentence.
The State claims that the trial court properly ordered the appellant to serve his five-year
sentence in confinement. We agree with the State.

       Generally, probation revocation rests in the sound discretion of the trial court and will
not be overturned by this court absent an abuse of that discretion. State v. Leach, 914
S.W.2d 104, 106 (Tenn. Crim. App. 1995). An abuse of discretion exists when “the record
contains no substantial evidence to support the trial court’s conclusion that a violation has
occurred.” State v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim. App. 1995). Upon revoking
probation, a trial court has the authority to order the appellant to serve the original sentence
in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e); State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991).

        The appellant argues that the trial court abused its discretion by not considering the
principles of sentencing in its decision to order him to serve his original sentence in
confinement. However, the appellant admitted that he violated his probation. Therefore, the
trial court could revoke his probation and order him to serve his sentence in confinement.
In any event, the trial court’s comments demonstrate that the court considered the principles
of sentencing, particularly the appellant’s lack of potential for rehabilitation, in denying his
request for another alternative sentence.

                                       III. Conclusion

       Based upon the record and the parties’ briefs, we conclude that the trial court did not
abuse its discretion by revoking the appellant’s probation and ordering that his sentence be
served in confinement. The judgment of the trial court is affirmed.


                                                    ___________________________________
                                                    NORMA MCGEE OGLE, JUDGE




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