         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 3, 2005

            STATE OF TENNESSEE v. MALCOLM C. WHITESIDE

                    Appeal from the Circuit Court for Madison County
           Nos. 94-724, -1084, 95–78, -79, -160, -256 Roy B. Morgan, Jr., Judge



                   No. W2004-01894-CCA-R3-CD - Filed August 18, 2005


The defendant, Malcolm Whiteside, entered pleas of guilty to forgery, assault, resisting arrest,
aggravated burglary, two counts of evading arrest, and four counts of theft under $500. The trial
court imposed an effective sentence of seven years to be served in the community corrections
program. A violation warrant was filed less than one month after the defendant was placed on
community corrections. A second violation warrant was filed three years later. At a hearing held
six years after the filing of the second warrant, the trial court revoked the community corrections
sentence and ordered service of the balance of the sentence in the Department of Correction. In this
appeal, the defendant asserts that the trial court erred by revoking community corrections and
ordering service of the sentence. The judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN
EVERETT WILLIAMS, JJ., joined.

George Morton Googe, District Public Defender (on appeal) and Stephen P. Spracher, Assistant
District Public Defender (at trial), for the appellant, Malcolm C. Whiteside.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; and
Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

       On March 15, 1995, the defendant entered pleas of guilty to the following offenses:

       Case Number                    Offense                        Sentence
       94-724                         theft under $500               11 months, 29 days
       94-724                         forgery                        2 years
       94-724                         forgery                        2 years
       94-1084                        assault                        11 months, 29 days
       94-1084                         resisting arrest                6 months
       94-1084                         evading arrest                  11 months, 29 days
       95-78                           theft under $500                11 months, 29 days
       95-78                           aggravated burglary             3 years
       95-79                           evading arrest                  11 months, 29 days
       95-160                          theft under $500                11 months, 29 days

Pursuant to a plea agreement, the trial court ordered that the sentences for the forgery convictions
be served consecutively to one another and to the sentence for the aggravated burglary conviction.
The remaining sentences were ordered to be served concurrently for an effective sentence of seven
years. Also by agreement, the defendant was placed on community corrections.

        Less than one month later, on April 10, 1995, a community corrections violation warrant was
filed wherein it was alleged that the defendant had violated the terms of his release by changing his
residence without notifying his supervisor and by failing to report as required. In a second violation
warrant filed three years later, it was alleged that the defendant had violated the terms of his release
by failing to report, by failing to pay fines and costs, and by absconding from the jurisdiction. In
2004, after the defendant was found in another jurisdiction, the trial court conducted a hearing to
determine whether the defendant had violated the terms of his community corrections sentence.

        Community corrections supervisor Vicky Parrish testified that the defendant had reported to
his supervisor for the first time one week after entering his guilty pleas but never reported again. Ms.
Parrish stated that a number of supervisors had tried to locate the defendant over the years with no
success. According to Ms. Parrish, an entry in the defendant's file indicated that his grandmother
reported that she had not seen the defendant in at least three years and that he had left Madison
County. Ms. Parrish, who took over the case in 2004, eventually discovered that the defendant was
incarcerated in Lake County, Illinois.

        The defendant testified that shortly after he was placed on community corrections, he was
contacted by an assistant district attorney who asked him to provide information regarding the
shooting of a police officer. He claimed that he provided "all the information [he] knew" and, two
days after being released from jail, was confronted by the shooting suspect's brother. The defendant
asserted that an Officer Caldwell had advised him to "lay low," explaining that he would "take care
of it." The defendant contended that he was not aware of the violation warrants and thought it was
okay to leave the jurisdiction. He explained that he left because he was afraid for his life and the
lives of his wife and young daughter. The defendant testified that when he discovered that the
warrants were pending, he turned himself in to the authorities. He agreed to pay the outstanding
fines and costs and sought probation for the balance of his sentence.

        At the conclusion of the hearing, the trial court revoked the defendant's community
corrections sentence. The defendant was ordered to serve the balance of his sentence in the
Department of Correction:



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       [T]he [c]ourt does find that it has been established by a preponderance of the
       evidence that this [d]efendant did move without notifying Community Corrections
       as is required.
                The [c]ourt further finds that he failed to keep his contacts with Community
       Corrections and report as required. That's been well established by his own
       admission, that he's move to Illinois where he's lived off and on over the years has
       been established by his own admission when he testified. So I find that he failed to,
       in both of these warrants, comply with his visits, whether they be weekly or every
       two weeks or twice a week. He failed to comply.
                He failed to pay fines and costs or fines and fees as required, but I'm not
       holding that against him at all. Even though he admitted it, I do not give any weight
       to that for making decision today.
                As far as the allegation that he's an absconder, he absconded from the
       jurisdiction of the [c]ourt. The [c]ourt's already made a finding that he left the
       jurisdiction and failed to keep his required meetings of probation officer. This went
       on for many, many years, and I think that's sufficient alone to make that finding,
       without even reference to absconding. . . .

        In this appeal, the defendant contends that the trial court abused its discretion by revoking
his community corrections sentence and ordering service of the sentence. The state submits that the
trial court did not err.

       Once a defendant violates the terms of his community corrections program, the trial court
may revoke the sentence and impose a new one:
       The court shall also possess the power to revoke the sentence imposed at any time
       due to the conduct of the defendant or the termination or modification of the program
       to which the defendant has been sentenced, and the court may resentence the
       defendant to any appropriate sentencing alternative, including incarceration, for any
       period of time up to the maximum sentence provided for the offense committed, less
       any time actually served in the community-based alternative to incarceration.
Tenn. Code Ann. § 40-36-106(e)(4).

        In State v. Harkins, 811 S.W.2d 79 (Tenn. 1991), our supreme court ruled that a community
corrections sentence is so similar to a probationary sentence as to require the application of the same
standard of review. Our general law provides that 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
his release. Tenn. Code Ann. § 40-35-311(e) (Supp. 2001); Stamps v. State, 614 S.W.2d 71, 73
(Tenn. Crim. App. 1980). On appeal, a revocation will be upheld absent an abuse of discretion. In
order to establish that the trial court has abused its discretion, the defendant must show that there is
no substantial evidence to support the determination that he violated his probation. Harkins, 811
S.W.2d at 82 (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). Relief can be granted only when "'the trial court's logic and
reasoning were improper when viewed in the light of the factual circumstances and the legal


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principles involved.'" State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore,
6 S.W.3d 235, 242 (Tenn. 1999)).

        In this instance, the defendant has been unable to establish that the trial judge did not exercise
a conscientious and intelligent judgment. See State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim.
App. 1997). The record establishes that the defendant reported to his community corrections
supervisor only once. He made no effort to pay the fines and costs as required under the terms of
his release. He left the jurisdiction without alerting community corrections officials and remained
at large for more than six years. While he admitted that he had violated the terms of his release, the
defendant claimed that he had done so because a police officer had told him it was "taken care of."
He offered no proof, however, to support this contention. Under these circumstances, it is our view
that the trial court did not err by revoking the community corrections sentence and ordering the
defendant to serve the sentence in the Department of Correction.

        Accordingly, the judgment of the trial court is affirmed.

                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE




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