            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs December 11, 2013

                      STATE OF TENNESSEE v. BRANDI CLUTTS

                      Appeal from the Circuit Court for Marshall County
                      No. 10CR43, 46, 52, 55   Robert G. Crigler, Judge


                    No. M2013-01426-CCA-R3-CD - Filed January 15, 2014


The Defendant-Appellant, Brandi Clutts, appeals the trial court’s revocation of her probation
and reinstatement of her original four-year sentence in the Department of Correction. On
appeal, Clutts argues that the trial court abused its discretion in ordering a sentence of full
confinement rather than imposing split confinement. Upon our review, we affirm the
judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

Donna Orr Hargrove, District Public Defender; and William J. Harold, Assistant Public
Defender, Lewisburg, Tennessee, for the Defendant-Appellant, Brandi Clutts.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Robert
Carter, District Attorney General; and Weakley E. Barnard, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                               OPINION

        On June 18, 2010, the Defendant-Appellant, Brandi Clutts,1 was convicted in the
Marshall County Circuit Court of five counts of burglary of an automobile, six counts of
theft, four counts of vandalism, and seven counts of reckless endangerment.2 She received

        1
            The Defendant-Appellant’s name is also spelled as “Brandy Clutts” elsewhere in the record.
        2
         The record reflects that the Defendant-Appellant was also convicted in the Moore County Circuit
Court on June 18, 2010 of three counts of burglary of an automobile, three counts of theft, and one count of
                                                                                               (continued...)
an effective four-year sentence, which was suspended to eight years on supervised
probation.3 On February 9, 2013, Clutts was arrested in Lincoln County and charged with
driving while under the influence (DUI), first offense. A warrant was issued on March 6,
2013 alleging that Clutts violated the conditions of her probation due to her arrest and DUI
charge. At the time of the arrest, Clutts was also on probation in Moore County.

       At the May 22, 2013 hearing, Clutts entered a guilty plea to violating the terms and
conditions of her probation and waived her right to a violation hearing. The hearing
proceeded as to the disposition of the probation violation.

        Robert Fitch testified that he was Clutts’s fiancé and that they had been in a
relationship for three years. He said that in the two months that Clutts had been in custody,
her three children had experienced traumatic effects due to her absence. The oldest child had
been taken to the emergency room for threatening to harm himself. Fitch said he and Clutts’s
grandfather were the primary caretakers of the children, who were aged twelve, six, and two.
He stated that Clutts’s grandfather had difficulty caring for the children due to his recent
heart surgery and that Clutts’s grandmother had recently passed away. According to Fitch,
Clutts was working at Tepro Industries when she was taken into custody and could clean
houses if she were released.

       On cross-examination, Fitch acknowledged that Clutts had been on probation in
Moore County and in Marshall County at the time of the DUI offense and that she had a
blood alcohol count (BAC) of 0.14. Fitch asked the court to be as lenient as possible in its
disposition for the sake of Clutts’s children and grandfather. He maintained that Clutts had
been on probation for three years without any problems. Three letters written on Clutts’s
behalf by her grandfather, aunt, and potential employer were entered into evidence without
objection.

       Lieutenant Andy Rodriguez of the Fayetteville Police Department testified that he
arrested Clutts for DUI in Lincoln County on the evening of February 9, 2013. Lieutenant
Rodriguez said he had responded to a call of a possible DUI driver, which included a detailed
description of the vehicle. He located the vehicle, which was parked with the engine running
in a handicapped space at Walmart. Lieutenant Rodriguez identified Clutts as the driver and

        2
            (...continued)
conspiracy to commit burglary of an automobile. She received an effective four-year sentence, which was
suspended to eight years on supervised probation to be served consecutively with the sentence in Marshall
County.
        3
         We glean these facts from the Probation Violation Report and the Violation of Probation Affidavit
because the underlying indictment and judgments of conviction were not included in the record on appeal.

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detected an odor of alcohol while speaking with her. He said multiple children under the age
of sixteen were also in the car. After the initial field test, Clutts was transported to a local
hospital where a blood alcohol test was conducted. Her BAC registered at 0.14. A certified
copy of the DUI arrest warrant was entered into evidence without objection. Lieutenant
Rodriguez said the matter was pending and that there was no disposition at that time. He
agreed that the arrest warrant reflected that Clutts had admitted to drinking on the night in
question.

       Renee Howell of the Tennessee Board of Probation and Parole testified that she was
Clutts’s probation supervisor and that she had requested the probation violation warrant after
Clutts was arrested and charged with DUI in Lincoln County. She agreed that Clutts was
also on probation in Moore County. Howell stated that prior to the DUI charge, Clutts had
complied with all the terms and conditions of her probation.

        At the conclusion of the disposition hearing, the trial court revoked Clutts’s probation
and ordered her to serve the balance of her original sentence in confinement. In support of
its decision, the trial court stated:

       You know, it’s sad that people hurt their family members by committing
       crimes, and it’s -- not criticizing counsel, but it can be kind of irritating that
       they try and use their family to leverage into a -- some sort of break that they
       haven’t merited. Sure their family suffers when they’re in jail, but they did it
       to themselves, not going to make me feel guilty about it. I’m sorry their family
       members suffer, but they need to look in the mirror when they find -- to the
       cause of that hurt to their family members.

       And we talked about mitigating, enhancing factors, and range. And there’s no
       legal factor that’s going to hurt my family member to be in jail. That’s not the
       law. That’s just a naked pitch to sympathy. You know, this defendant
       committed a huge number of felonies in Moore County and here and
       committed a DUI that’s a danger to herself. DUI is a danger to the person
       driving and the public at any -- any situation and certainly when there’s
       children in the car. So I’m going to order her to serve the sentence that she
       was fortunate enough to have it probated to begin with.

It is from this order that Clutts now timely appeals.




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                                         ANALYSIS

       On appeal, Clutts argues that the trial court “improperly required [her] to serve the
balance of her sentence for violating the terms of her probation.” She asserts that the trial
court should have imposed a sentence of split confinement and that a sentence of full
incarceration based on these facts “essentially amounts to an abuse of discretion.” The State
responds that the trial court did not abuse its discretion when it ordered Clutts to serve the
balance of her original sentence in confinement. We agree with the State.

       After determining that a defendant “has violated the conditions of probation and
suspension by a preponderance of the evidence, the trial judge shall have the right . . . to
revoke the probation and suspension of sentence, and . . . [c]ause the defendant to commence
the execution of the judgment as originally entered, or otherwise, in accordance with § 40-
35-310[.]” T.C.A. § 40-35-311(e) (2010). Probation revocation rests within the sound
discretion of the trial court, and this court will not disturb the trial court’s ruling absent an
abuse of that discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). In order to establish an abuse of discretion, the
defendant must show “that the record contains no substantial evidence to support the
conclusion of the trial judge that a violation of the conditions of probation has occurred.”
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)). Once the trial judge has made the
finding that a violation of probation has occurred, he or she has the discretion to order the
defendant to (1) serve the original sentence in incarceration; (2) serve the probationary term,
beginning anew; or (3) serve a probationary period that is extended for up to an additional
two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999) (citations omitted); see T.C.A.
§§ 40-35-308, -310, -311.

       Here, Clutts entered a guilty plea to violating the conditions of her probation and thus
the right of the trial judge to revoke her probation is not in dispute. She contends, however,
that the trial court abused its discretion and improperly ordered her to serve her original
sentence in incarceration. She argues that, in spite of her “one poor decision,” split
confinement would be a better alternative to confinement. However, it is well-established
that once the trial court determined that Clutts had violated the terms of her probation, it was
authorized “to cause execution of the defendant’s original judgment as it was originally
entered.” Hunter, 1 S.W.3d at 647 (citing T.C.A. § 40-35-310). Moreover, this court has
repeatedly held 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. Feb. 10, 1999), perm.
app. denied (Tenn. June 28, 1999). Based on the record, we cannot conclude that the trial



                                               -4-
court abused its discretion in ordering Clutts to serve the balance of her original sentence in
confinement. Accordingly, she is not entitled to relief.




                                      CONCLUSION

       Upon our review, we affirm the judgment of the Marshall County Circuit Court.




                                           ___________________________________
                                           CAMILLE R. McMULLEN, JUDGE




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