        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                            AT KNOXVILLE
                                                                February 14, 2000

                         JANUARY 2000 SESSION                Cecil Crowson, Jr.
                                                            Appellate Court Clerk




                               )
STATE OF TENNESSEE,            )   C.C.A. No. E1999-01219-CCA-R3-CD
          Appellee,            )
                               )   Blount County
vs.                            )
                               )   Hon. D. Kelley Thomas, Jr., Judge
                               )
AIMEE LYNN WOLFE,              )   (Community Corrections Revocation)
          Appellant.           )
                               )



FOR THE APPELLANT:                  FOR THE APPELLEE:

JAMES H. SNYDER, JR.                PAUL G. SUMMERS
Attorney at Law                     Attorney General & Reporter
345 East Broadway Ave.
Maryville, TN 37804                 R. STEPHEN JOBE
                                    Asst. Attorney General
                                    425 Fifth Ave. North
                                    2d Floor, Cordell Hull Bldg.
                                    Nashville, TN 37243-0493
                                    MICHAEL L. FLYNN
                                    District Attorney General
                                    EDWARD P. BAILEY, JR.
                                    Asst. District Attorney General
                                    942 E. Lamar Alexander Pkwy.
                                    Maryville, TN 37804


OPINION FILED:________________


AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                     OPINION

              The defendant, Aimee Lynn Wolfe, appeals from the revocation of her

Community Corrections sentence by the Blount County Circuit Court. She contends
that the trial court erred in revoking her Community Corrections sentence without

authorizing a state-funded psychological evaluation for her. Following a review of

the record and the briefs of the parties, we affirm the trial court's judgment.


              In June 1997 the defendant was charged with four offenses: burglary,

a Class D felony, Tenn. Code Ann. § 39-14-402 (1997); aggravated burglary, a
Class C felony, Tenn. Code Ann. § 39-14-403 (1997); theft of property valued over

$500, a Class E felony, Tenn. Code Ann. § 39-14-103 (1997); and theft of property

valued over $1000, a Class D felony, id. She subsequently pleaded guilty to the

four charges and received an effective three year sentence to be served in the

Community Corrections Program. She was arrested in July 1998 for violating her

Community Corrections agreement by failing to report, failing to maintain

employment, failing to perform community service work, and failing to pay any

monies towards court costs and restitution. For these violations, the defendant was
ordered to serve five months in confinement, after which she would continue with

the Community Corrections Program by participating in a Teen Challenge program.1




              After serving her five-month confinement, on March 16, 1999, the

defendant was admitted to Teen Challenge as a condition of her Community
Corrections sentence. She was discharged from the program the following day for

giving false information on her application. She was charged with violating the

conditions of her release in the Community Corrections Program by being

discharged from Teen Challenge.

   1
     Teen Challenge is a worldwide organization that offers a rigorous, Christian
based alcohol and drug treatment program. The residential program requires the
participant to abide by a stringent set of rules. For example, participants may not
bring with them, among other things, cigarettes, books, magazines, medication
for withdrawal, tapes, records, musical instruments, gum, candy, or pictures of
girl or boy friends. Each participant must bring a Bible. Participants agree not to
curse, use off-color expressions or gestures, or sing, whistle or hum secular
songs. Letter writing to anyone except the participant's immediate family is not
permitted. Disciplinary action for infractions includes extra duty, loss of
privileges, suspension, or dismissal. See State v. Larry Oliver, No. 03C01-9707-
CC-00237 (Tenn. Crim. App., Knoxville, Aug. 20, 1998).
              At the start of her revocation hearing, the defendant moved that she

be permitted to undergo a psychological evaluation. In support of this motion the

defendant’s mother testified. She stated that the defendant, at the age of eleven,
was abducted and repeatedly raped for three days. The defendant’s mother

testified that before the abduction the defendant was an honor student, but

afterwards, she was a very troubled child. She described the defendant’s behavior
as “self-destructive” because the defendant would do fine for a time and then she

would sabotage her good efforts. After the abduction, the defendant committed the

juvenile offenses of theft and shoplifting. She also acquired a drug problem. The
defendant entered a psychiatric hospital where she was diagnosed as

schizophrenic. She received medication, but it apparently had little effect. In

addition to the convictions in the present case, she apparently pleaded guilty to
unspecified offenses in Hamilton County.



              After the trial court denied the motion for a psychological evaluation,

the defendant testified on the issue of the Community Corrections revocation. She

dropped out of the GED program just before she was about to take the test. She
said that she was promoted to assistant manager where she worked, but then just

walked out and never returned. She stated that she quit nursing school. She could

not explain her behavior or state a reason for her actions, although she did accept
responsibility for her conduct. She agreed that she violated the terms of her

community corrections sentence when her conduct at Teen Challenge caused her

to be dismissed from the program. The trial court found the defendant had violated
the conditions of her Community Corrections sentence, revoked her community

corrections placement, and ordered her to serve the remainder of her sentence in

confinement. It is this revocation that the defendant is now appealing.



              The decision to revoke a Community Corrections sentence rests within

the sound discretion of the trial court and will not be disturbed on appeal unless

there is no substantial evidence to support the trial court's conclusion that a violation
had occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In reviewing the

trial court's finding, it is our obligation to examine the record and determine whether


                                           3
the trial court has exercised a conscientious judgment rather than an arbitrary one.

State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If the evidence is

sufficient, the trial court may, within its discretionary authority, revoke the
Community Corrections sentence and require the defendant to serve her sentence

in confinement. Tenn. Code Ann. § 40-36-106(e)(3) (Supp. 1998).



              On the record before us, there is no room for doubt that the trial court

was justified in finding, first that the defendant violated the terms of her Community

Corrections sentence, and second, that revocation was in order.


              The defendant complains that the trial court erred by not ordering a

psychological valuation. At the start of the revocation hearing, the defendant moved
that she be permitted to undergo a psychological evaluation. In support of this

motion the defendant’s mother testified. After presenting this proof, defense

counsel argued, “And all I’m asking for is that we come in with the information on

why this is going on. Without that, I don’t understand and I can’t represent her

adequately.” The trial court found that the defendant did not indicate that she had
any “problem understanding the nature of these proceedings, what her legal

position is, or any indication at all that she doesn’t understand what she does.” The

trial court found that she knew right from wrong and denied the motion.


              The defendant testified at the revocation hearing. Before revoking the

defendant’s Community Corrections sentence, the trial court found that there was
“evidence that she has suffered from emotional or mental illnesses for quite some

time, . . . but she continues to violate the law and continues to not follow the most

simple rules of release in the community.”



              Psychological evaluations are warranted when the defendant’s mental

capacity at the time of the offense or her competence is questioned. Tenn. Code

Ann. § 33-7-301(a) (Supp. 1998) (“When a person charged with a criminal offense
is believed to be incompetent to stand trial, or there is a question as to the person's

mental capacity at the time of the commission of the crime, the . . . court . . . may


                                          4
. . . order the defendant to be evaluated . . . .”); see also State v. West, 728 S.W.2d

32, 34 (Tenn. Crim. App. 1986) (“Before a mental evaluation is required, the

evidence must be such as to warrant a belief that the defendant is incompetent to
stand trial, or it must be sufficient to raise a question as to his mental capacity at the

time of the crime.”). In the case at bar, neither the defendant’s mental capacity at

the time of the offense nor her competence to stand trial or participate in legal
proceedings is at issue.



               A psychological evaluation may produce results relevant to mitigating
a sentence.     See, e.g., State v. Reid,981 S.W.2d 166, 168 (Tenn. 1998)

(addressing procedure for offering mental condition testimony as mitigation

evidence at the sentencing phase of trial); Cooper v. State, 847 S.W.2d 521, 529
(Tenn. Crim. App. 1992) (endorsing the proposition that evidence of mental

impairment, although not helpful during the guilt phase, could still be helpful at the

sentencing phase). The standard of review on appeal is abuse of discretion. See

State v. Lane, 689 S.W.2d 202, 204 (Tenn. Crim. App. 1984) (decision to deny

psychiatric evaluation is reversible only when trial court abuses its discretion).
However, we note that in the case at bar the trial court did not increase the term of

the defendant’s sentence, but merely changed her manner of service from

Community Corrections to confinement. Accordingly, a sentencing hearing was not
required in this case and the trial court was not required to hear mitigating evidence.

See State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996) (holding that

“when a trial court opts to impose a sentence which exceeds the length of the initial
sentence based on a breach of the terms of the sentence, the trial court must

conduct a sentencing hearing”); see also Tenn. Code Ann. § 40-35-311(e) (Supp.

1999) (“[T]he trial judge shall have the right . . . to revoke the probation and

suspension of sentence and cause the defendant to commence the execution of the
judgment as originally entered . . . .”).



              In the case at bar, defense counsel argued that without a
psychological evaluation he could not effectively represent the defendant. In her

written motion, the defendant requested that the court order a psychological


                                            5
evaluation and grant a continuance for the evaluation to be performed. However,

after the trial court denied the motion requesting a psychological evaluation, the

defendant did not renew her request for a continuance despite the mother’s
testimony that she and the defendant’s father were willing to pay for a psychological

evaluation if one were not provided by the state. We conclude that the defendant’s

failure to seek a continuance to obtain a psychological evaluation serves as a
waiver of this issue. Moreover, the defendant has not shown how the trial court

abused its discretion in denying her motion for an evaluation.



              Also, the defendant contends that the trial court failed to consider the

issue of an evaluation as it related to sentencing considerations. However, the

record indicates otherwise. The trial court heard testimony from both the defendant
and her mother regarding the defendant’s mental and emotional condition. The trial

court found that the defendant “suffered from emotional or mental illnesses for quite

some time,” but that she was not incompetent.          The trial court ordered the

defendant to serve her sentence in confinement and credited her with time served

in jail and in the Community Corrections Program.


              In this case, the defendant wishes to address         the treatment of

persons who are not so mentally ill that due process would be offended by their
conviction, but who, because of mental illness, are not able to perform the

conditions of their non-incarcerative sentences as required by law. The trial court

may be correct in surmising that this is a pervasive problem in today’s society;
however, the defendant has not presented any justiciable issues which have merit.

Accordingly, we leave this public policy issue for the Legislature to resolve.



              Accordingly, the judgment of the trial court is affirmed.




                                          ________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE




                                          6
CONCUR:



_______________________________
GARY R. WADE, PRESIDING JUDGE



_______________________________
NORMA McGEE OGLE, JUDGE




                                  7
