        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned On Briefs June 28, 2011

                  STATE OF TENNESSEE v. JEREMY O’NEAL

                     Appeal from the Circuit Court for Blount County
                         No. C-16702 David R. Duggan, Judge



                   No. E2010-02608-CCA-R3-CD - Filed August 30, 2011


On October 1,2007, Appellant, Jeremy O’Neal, pled guilty in Blount County to one count of
felony robbery. He was originally placed on judicial diversion. On April 5, 2010, the trial
court set aside Appellant’s judicial diversion for violating the terms thereof. The trial court
sentenced Appellant to six years with split confinement of thirty-five days with the remainder
to be served on probation. Appellant’s probation officer subsequently filed a violation of
probation report in September 2010. After conducting a probation revocation hearing, the
trial court determined that Appellant had violated the terms of his probation and revoked
Appellant’s probation. The trial court ordered Appellant to serve the balance of his six year
sentence in incarceration. Appellant argues on appeal that the trial court abused its discretion
in ordering Appellant to serve his sentence in incarceration. We conclude that there is ample
evidence to support the trial court’s decision to revoke Appellant’s probation and to order
him to serve the balance of his sentence in incarceration. Therefore, we affirm the revocation
of probation and the order that Appellant to serve the balance of his sentence in incarceration.


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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
D. K ELLY T HOMAS, J R., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Jeremy O’Neal.

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

                                    Factual Background

       The State summarized the facts leading up to the current violation of probation in the
following manner:

       It looks like back on October the 1st of 2007, [i]nformations were entered and
       he pled guilty to Class C felony robbery. The sentencing hearing was held
       June 19th of 2008 and he was granted judicial diversion by the Court. Had a
       three-year sentence. He was then, on April the 5th of 2010, before the Court
       on a violation. His diversion was set aside, his guilty plea was entered, and he
       received a six-year, range-one sentence with a split confinement of 35 days to
       serve and the balance on enhanced probation at that time.

      Appellant’s probation officer filed a violation of probation report on July 23, 2010 and
an amended report on September 2, 2010. The following violations were listed:

       Rule #1: [ ] The Offender was arrested in Knox County on 8-30-10 for
       Aggravated Burglary, Evading Arrest, Failure to Obey a Court Order, and
       FTA.
       Rule #4: The Offender has not verified any employment while under
       supervision.
       Rule #5: the Offender’s residence has never been able to be verified. He had
       reported invalid addressed multiple times.
       Rule #6: The Offender has not reported to probation since 6-1-10.
       Rule #9: The Offender has not paid on fees or court costs.
       Rule # 10: The Offender has not maintained his 6pm curfew at any time while
       under supervision.

              ....

       Since he was placed on Enhanced Probation, for a period of 6 years, he had
       done nothing to remain compliant. Residents of the address he had declared,
       stated that he did not live there. The residence was checked multiple times.
       The new address he gave, which was a motel, was never able to be verified.
       This officer has never know[n] the living arrangements of [Appellant]. While
       on Enhanced Probation, he remained unemployed, did not pay fees and court
       costs, and ultimately absconded. The last time he reported to probation was



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       on 6-1-10. At no time has he been compliant under the rules of any
       supervision.

        On November 22, 2010, the trial court held a probation revocation hearing.
Appellant’s probation officer testified that she began supervising Appellant on April 12,
2010. She stated that between April 12 and July 26 Appellant failed to report being
employed. She was also unable to verify his residence. She attempted several home checks
at the beginning of his supervision. When he reported to her, he informed her that it was the
correct address. She attempted several more home checks and the residents told her that
Appellant did not live there. He later gave her the address of a motel as his residence. When
the probation officer checked the motel, Appellant was not there. The probation officer was
unable to conduct a home visit from April 12 to July 26. She stated that the last time she saw
Appellant was when he reported on June 1, 2010. She attempted to track him down at a
previous residence and left a message with the residents there who were Appellant’s relatives
or friends. However, Appellant did not report back to her. Appellant never provided proof
of payment of court costs or fees throughout her supervision. She also stated that Appellant
did not maintain his 6:00 p.m. curfew at any time during her supervision. She did not have
a telephone number for him, so she was unable to call him and verify his whereabouts. The
probation officer testified that Appellant was arrested on August 30, 2010 for new charges
and failure to appear. The new charges were later dismissed, but the failure to appear was
not dismissed.

       The probation officer concluded her direct examination with the following statement:

               I don’t feel like I’m able to supervise him or offer him any
       rehabilitation at this point because I have made many efforts to follow him, to
       track him, to implore him to find a job, to keep in contact with me. And even
       on my own time tried to track him down to get him back on track. And he has
       never complied with any of those requests from me or any of our rules, and
       that is a continuing pattern since he began this probation in 2008.

       Appellant also testified at the hearing. He stated that he gave the probation officer his
father’s address as his place of residence. His girlfriend, Heather Newman, was also living
there. Appellant stated that he and his girlfriend stopped living at his father’s house because
Appellant argued with his step-mother, and she kicked them out of the house. At that point,
Appellant and Ms. Newman moved to a hotel. Appellant said that he notified his probation
officer of the move when he next reported to her. Appellant and Ms. Newman stayed at the
hotel about a week, and they began to move around to different hotels.




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        Appellant stated that he called his probation officer a few times within a thirty day
period, but he admitted that the last time he had contact with her was on June 1. He stated
that he did not have a car or a driver’s license and these facts prevented him from reporting
to her. He testified that he had applied for jobs, but he had not completed the form to give
to the probation officer. He has two children. His youngest child’s mother is Ms. Newman
and that child lives with her.

       Appellant stated that he understood he was to follow all the rules while on probation.
He testified that he would do things differently if the trial court gave him a second chance.
He said that he would find a job, stay out of trouble, and stay away from people who were
a bad influence. He stated that he had a place to live with Ms. Newman in Loudon County.
       Ms. Newman also testified at the hearing. She stated that she lives in an apartment
and has a full-time job. She stated that she is the sole caretaker for her child with Appellant.
Ms. Newman stated that she lived with Appellant at his father’s residence in April. She said
they stayed there to the middle of May when Appellant’s step-mother kicked them out. She
was pregnant at the time. After they left Appellant’s father’s house, they stayed in two
motels for a week or a night at a time depending upon how much money they had. Ms.
Newman stated that she wanted Appellant to come live with her at her apartment. She said
that she would be able to help Appellant get back and forth according to his probation
requirements.

        At the conclusion of the hearing, the trial court revoked Appellant’s probation. The
trial court stated the following bases for revoking Appellant’s probation:


       [N]ot verifying employment while under supervision, not verifying a
       residence, reporting invalid addresses multiple times, failing to report since
       June 1, 2010, failing to pay your fees and court costs, and not maintaining [his]
       6:00 p.m. curfew while under supervision. The Court also notes that it is true
       that [he has] a history of non-compliance.




The trial court ordered Appellant to serve his six year sentence. Appellant appeals the
revocation of his probation.
                                      ANALYSIS

      On appeal, Appellant argues that the trial court erred in revoking his probation.
Appellant admits that “he had not strictly complied with the terms of probation,” but argues



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that the trial court erred in “ordering incarceration for the balance of the sentence rather than
the less severe penalty of split confinement.”

       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 a condition
of probation. T.C.A. §§ 40–35–310 & –311. After finding a violation of probation and
determining that probation should be revoked, a trial judge can: (1) order the defendant to
serve the sentence in incarceration; (2) cause execution of the judgment as it was originally
entered, or, in other words, begin the probationary sentence anew; or (3) extend the
probationary period for up to two years. See T.C.A. §§ 40-35-308(c) & -311(e); State v.
Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). 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). Revocation of probation and a community corrections sentence is subject to an
abuse of discretion standard of review, rather than a de novo standard. State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown if the record is devoid of
substantial evidence to support the conclusion that a violation of probation has occurred. Id.
The evidence at the revocation hearing need only show that the trial court exercised a
conscientious and intelligent judgment in making its decision. State v. Leach, 914 S.W.2d
104, 106 (Tenn. Crim. App. 1995).

       We have reviewed the record on appeal and find ample evidence to support the trial
court’s conclusion that a violation of probation occurred. Appellant himself testified that he
did not provide proof of employment, had not reported since June 1, 2010, and had not had
contact with his probation officer of any kind since that same date. When a trial court has
determined that a defendant has violated the terms of his probation, the trial court may
choose to order the defendant to serve his sentence in incarceration as originally ordered. In
the case at hand, the trial court decided to do so. Based on the record before us, we find no
abuse of discretion in ordering Appellant to serve his sentence in incarceration.

                                       CONCLUSION

       For the foregoing reasons, we affirm the decision of the trial court.


                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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