                                                                                          07/10/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 17, 2017

          STATE OF TENNESSEE v. XAVIER SANCHEZ SKAGGS
                    Appeal from the Circuit Court for Sullivan County
                          No. S55353     R. Jerry Beck, Judge



                              No. E2016-01861-CCA-R3-CD
                        _____________________________

In 2008, the Defendant, Xavier Sanchez Skaggs, pleaded guilty to possession of
contraband in a penal institution, and the trial court sentenced him to a suspended
sentence of eight years, as a Range II offender. The trial court ordered this sentence to be
served consecutively to other sentences being served by the Defendant. In 2016, the
Defendant’s probation officer filed an affidavit alleging that the Defendant had failed to
regularly attend relapse prevention classes and that he also failed two drug screens. The
Defendant pleaded guilty to violating his probation, and the trial court revoked his
probation and ordered him to serve the balance of his sentence in confinement. On
appeal, the Defendant contends that the trial court erred when it ordered him to serve his
sentence in confinement because the trial court failed to address the Defendant’s
underlying problem of persistent drug use. After review, we affirm the trial court’s
judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J. and JOHN EVERETT WILLIAMS, J., joined.

Stephen M. Wallace, Public Defender, and M. Tyler Harrison, Assistant Public Defender,
Blountville, Tennessee, for the appellant, Xavier Sanchez Skaggs.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Barry P. Staubus, District Attorney General; and Joseph Eugene Perrin, Deputy District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

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       This case arises from the Defendant possessing contraband while incarcerated in
2007. The indictment alleged that the Defendant took marijuana into a penal institution
on October 7, 2007. For this offense, the Defendant pleaded guilty, and the trial court
sentenced the Defendant as a Range II offender to eight years of probation. The trial
court ordered that the Defendant’s sentence run consecutively to the Defendant’s prior
sentences.

        On July 14, 2016, the Defendant’s probation officer filed an affidavit swearing
that the Defendant had violated his probation. The probation officer alleged that the
Defendant had failed a drug screen on May 16, 2016, for “oxy,” cocaine, and marijuana,
all of which the Defendant denied using. The probation officer further alleged that the
Defendant had failed a second drug screen on June 29, 2016, for “oxy,” cocaine, and
marijuana, all of which the Defendant again denied using. The probation officer further
alleged that the Defendant had failed to attend relapse prevention classes and had not
taken required counseling classes. The trial court issued a warrant for the Defendant’s
arrest and appointed him legal counsel.

       The trial court held a hearing on the Defendant’s probation violation. At the
hearing, the Defendant pleaded guilty to violating his probation. The Defendant
stipulated that the facts contained in the affidavit were true. The Defendant testified that
he was twenty-eight years old at the time of the hearing and lived with his grandmother.
He had a two-year-old child whom he helped to support through his employment at
Longhorn Restaurant. The Defendant said that, before being incarcerated, he worked
approximately thirty hours a week. The Defendant admitted that he had failed two drug
screens, explaining that it was “stressful out there.” He said, however, that he took full
responsibility for what he had done, had no new charges, and did not abscond.

       The Defendant testified that, if returned to probation, he could pass a drug screen
because he had not recently used drugs. He agreed that he had previously been convicted
of introducing contraband into a penal institution and that he had been convicted of two
other felonies: selling cocaine and reckless endangerment. The Defendant said he had
several other misdemeanor convictions. He asked the trial court to reinstate his
probation, saying that he had since learned that using drugs was not worth it.

        During cross-examination, the Defendant agreed that he gave a statement to the
trial court in 2007 in which he acknowledged that his drug use was a problem. In that
statement, he asked the trial court for an alternative sentence. The Defendant agreed that,
nine years later, he was again before the trial court acknowledging a drug problem and
seeking leniency. The Defendant remembered he had also been convicted of evading
arrest.
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      The Defendant agreed that the trial court had placed him at the John R. Hay House
(“Hay House”) to address his drug problems, but he said that there were “more drugs in
the Hay House than on the street.” He agreed that he left the Hay House without
permission.

       The State went through the Defendant’s history of drug use while on probation,
including that he had tested positive for marijuana, oxycodone, and opiates in 2012. The
Defendant’s probation officer did not file a probation violation affidavit at that time. In
July 2013, he again tested positive for oxycodone. The Defendant’s probation officer
again did not file a probation violation affidavit. Instead, the probation officer referred
him to a drug treatment program. In December 2013, the Defendant tested positive for
benzodiazepine, oxycodone, and suboxone. At this point, the Defendant was found to
have violated his parole and was sent to the Tennessee Department of Correction. He
was released in April 2016 and in May 2016 he tested positive for marijuana, cocaine,
and oxycodone.

       The Defendant asserted that the drug treatment at the Hay House had “worked”
but said that “everybody has down moments.” When he had such a moment, he returned
to using drugs.

       After reviewing his criminal history, the Defendant agreed that in April 2007, he
was convicted of possession of marijuana, and in July 2007, he was convicted of the sale
of over .5 grams of cocaine, possession of cocaine, possession of marijuana, possession
of alprazolam, and possession of drug paraphernalia. Also in July 2007, he was
convicted of felony evading arrest, reckless endangerment, possession of marijuana, and
driving without a driver’s license.

       The Defendant said that he met the people with whom he used drugs at his drug
rehabilitation class. He said that their names were “Joshua” and “David” but that he did
not know their last names. He testified that they both gave him drugs for free.

      Upon this basis, the trial court held:

              The Defendant has a long history of convictions of criminal
      offenses, some felonies, some very serious felonies. The Defendant has, on
      previous to this particular offense, been violated for drug use both on
      probation and parole as I understand it. Then this one popped upon July the
      6th, 2016, this warrant.

             The Court is aware that the law favors rehabilitation over
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       incarceration where possible or where results are likely to result in progress
       with the Defendant.

              At this point, considering the history developed during the course of
       this hearing, [the Defendant] will be required to serve his sentence. And I
       believe it’s eight years at . . . Range 2. He will receive credit for time
       served.

It is from this judgment that the Defendant now appeals.

                                       II. Analysis

       On appeal, the Defendant contends that the trial court abused its discretion when it
ordered him to serve his sentence in confinement because “[s]ound discretion would have
been to attempt to address the underlying problem of persistent drug use.” The State
counters that the trial court acted within its authority when it ordered the Defendant to
serve the remainder of his original sentence in confinement. We agree with the State.

       A trial court’s authority to revoke a suspended sentence is derived from Tennessee
Code Annotated section 40-35-310 (2014), which provides that the trial court possesses
the power “at any time within the maximum time which was directed and ordered by the
court for such suspension, . . . to revoke . . . such suspension” and cause the original
judgment to be put into effect. 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) (2014). “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). If a trial court revokes a defendant’s
probation, 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 (2014); see State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999).

       The judgment of the trial court in a revocation proceeding will not be disturbed on
appeal unless there has been an abuse of discretion. See State v. Shaffer, 45 S.W.3d 553,
554 (Tenn. 2001); State v. Smith, 909 S.W.2d 471, 473 (Tenn. Crim. App. 1995). In
order for this Court to find an abuse of discretion, “there must be no substantial evidence
to support the conclusion of the trial court that a violation of the conditions of probation
has occurred.” Shaffer, 45 S.W.3d at 554. Further, a finding of abuse of discretion
“‘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.’” Id.
at 555 (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
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       In this case, the Defendant admits that he violated his probation but suggests that
the trial court erred when it ordered him to serve his sentence in confinement. The
determination of the proper consequence of a probation violation embodies a separate
exercise of discretion. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999). Case law
establishes that “an accused, already on probation, is not entitled to a second grant of
probation or another form of alternative sentencing.” State v. Jeffrey A. Warfield, No.
01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App., at Nashville, Feb. 10,
1999), perm. app. denied (Tenn. June 28, 1999).

       The record clearly reflects that the Defendant violated the terms of his probation.
The Defendant failed to comply with the requirements of his probation by not going to
rehabilitation classes and by failing multiple drug screens. The Defendant has previously
violated parole on multiple occasions. The trial court acted within its authority when it
ordered the incarceration of the Defendant for the remainder of the original sentence.

                                    III. Conclusion

     In accordance with the foregoing reasoning and authorities, we affirm the
judgment of the trial court.

                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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