                                                                                        06/18/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs March 24, 2020

       STATE OF TENNESSEE v. SAMANTHA DARLENE BREWER

                  Appeal from the Circuit Court for Blount County
                    No. C-26079 Tammy M. Harrington, Judge
                     ___________________________________

                           No. E2019-01361-CCA-R3-CD
                       ___________________________________


Following a revocation hearing, the trial court revoked the probation of Defendant,
Samantha Darlene Brewer, and ordered confinement for her sentence. On appeal,
Defendant alleges the trial court abused its discretion and requests split confinement and
furlough to substance abuse and mental health treatment courses. Based upon the record
and the parties’ briefs, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal) and Raymond Mack Garner, District
Public Defender, Maryville, Tennessee (at trial) for the appellant, Samantha Darlene
Brewer.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Ashley Salem,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

      Background

      On August 13, 2018, Defendant pled guilty to theft of property valued at more
than $1,000 from the Belk store and received a sentence of two years to be served on
supervised probation. The trial court ordered Defendant to complete alcohol and drug
assessment and to follow all recommendations. Defendant was further ordered to
complete fifty hours of community service and to have no contact with the Belk store. On
September 7, 2018, a probation violation warrant was issued against Defendant alleging
that she violated the terms of her probation by testing positive for methamphetamine,
morphine, and benzodiazepines. Defendant admitted to the violation and was reinstated
to probation after serving thirty days in confinement.

       On May 31, 2019, a second probation violation warrant was issued against
Defendant alleging that she violated the terms of her probation by failing to obtain lawful
employment, failing to complete a mental health assessment, and failing to provide proof
of attending community support meetings. It was further alleged that Defendant was
discharged from the Cognitive Behavior Intervention Program on December 7, 2018, and
May 7, 2019, due to excessive absences. Defendant tested positive for morphine and
benzodiazepines on January 3, 2019, and on May 10, 2019. She also admitted to the use
of morphine. Defendant failed to make any payments toward court costs and supervision
fees, and she failed to provide proof of completing any community service hours.

        At the probation revocation hearing, Defendant stipulated that she tested positive
for morphine and benzodiazepines on January 3, 2019, and May 10, 2019, and that she
had not completed her community service hours or paid her court costs. We note that in
the trial court’s findings at the conclusion of the revocation hearing, the trial court said:
“I’m not going to find a stipulation as to the benzodiazepines because [Defendant] said
she had a prescription for that and I don’t think it’s really relevant at this point, given the
positives for morphine.” The drug screen results report notes “(RX)” beside of the
positive result for benzodiazepines.

        Defendant’s probation officer, Sylvia Popova, testified that she began supervising
Defendant on August 13, 2018. She said that the special conditions of Defendant’s
probation included: “community service, her curfew, no contact with Belk, an A[lcohol]
& D[rug] assessment, and pay restitution - - two restitutions to Belk.” Ms. Popova
testified that Defendant did not complete a drug and alcohol assessment through the
probation department, and she had not received anything indicating that Defendant
completed an assessment elsewhere. She said that the paperwork received from the
social worker indicated that Defendant refused alcohol and drug treatment because she
had completed inpatient treatment in September 2018, and Defendant did not feel that she
needed the additional treatment. It was also recommended that Defendant complete a
mental health assessment, which Defendant agreed through her treatment plan to set up
and complete on her own. Ms. Popova never received anything indicating that Defendant
completed the mental health assessment. She noted that Defendant had been prescribed
medication for her mental health through her primary care physician.

       Ms. Popova testified that Defendant was discharged twice from her cognitive
behavior intervention program. Defendant was supposed to have begun the class on
December 10, 2018. Ms. Popova testified that Defendant missed classes on December
10, 11, and 17, 2018, and she was discharged from the program on December 17 due to

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her absences. Defendant was granted an opportunity to retake the class which started
again in January 2019. Defendant missed classes on February 4, 2019, April 8, 2019,
April 29 and 30, 2019, and May 7, 2019. Defendant was again discharged from the
cognitive behavior intervention program due to her absences. Ms. Popova testified that
she had not received proof of employment from Defendant, and Defendant had not made
any payments toward her court costs and supervision fees. Ms. Popova said that
Defendant had not submitted any proof that she had completed her community service
hours.

        On cross-examination, Ms. Popova testified that Defendant’s mental health
complaint consisted of anxiety and depression for which Defendant had been prescribed
Zoloft. She did not know what else Defendant had been prescribed. Ms. Popova testified
that Defendant seemed fine during the times that Defendant reported to her. She was not
aware of any of Defendant’s physical difficulties or ailments. Ms. Popova noted that
Defendant was supposed to report to her once or twice a month, and Defendant reported
to her as required. She was aware that Defendant completed an inpatient treatment
program in Florida in the fall of 2018. Ms. Popova agreed that Defendant tested positive
for drugs after completing the inpatient treatment. She asked Defendant if she needed
further treatment, and Defendant did not think she needed treatment. Ms. Popova
testified that she had conversations with Defendant again after Defendant tested positive
for drugs in May 2019, and Defendant said that she probably needed treatment.
However, Defendant did not take any steps to get treatment.

       Ms. Popova testified that Defendant’s first probation violation involved a positive
drug screen for methamphetamine and morphine, and she left the state without
permission to go to Florida. It was Ms. Popova’s opinion that Defendant is a drug addict,
and she needs treatment for her addiction. She again noted that Defendant said that she
did not need treatment when she was asked about it.

        Defendant testified that she was in an in-patient treatment program in Florida for
thirty-two days, and she completed the program. She came back to Tennessee and
reported to Ms. Popova. Defendant was living with her mother at the time, and she was
unemployed. Defendant testified that she sought employment through Staffing Solutions
but she was told that she was not hirable due to her felony charge. Defendant testified
that on April 24, 2019, her brother came home drunk and attacked her breaking her “L2
vertebra.” He also broke her nose and fractured her right eye socket. Defendant thought
that all of her injuries were now healed but she is in pain every day. She asserted that due
to wearing a brace, her torso “is really weak and I keep tearing the muscles. And I don’t
- - I’m supposed to be in physical therapy right now, but I don’t know what to do myself
to strengthen it correctly.”

     Defendant testified that she missed meetings for her treatment program in
December 2018 because she had the flu and forgot about the meetings. She was then

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discharged from the program. Defendant acknowledged that she testified positive for
morphine in January 2019. She testified that she used morphine because of an older back
injury from 1998. Defendant asserted that she was placed on pain medication in 2000
and remained on it daily “until 2015 when I decided to come off of it. And I just got tired
of hurting.” She testified that she also had been “fighting a lot of depression as well.”
Defendant testified that she was diagnosed with depression in 1996 and was placed on
Zoloft.

       Defendant admitted that she told Ms. Popova that she did not have an addiction
and did not need treatment. Defendant said that she thought it was “just a one-time
thing” and that she would be able to control it. Defendant claimed that she did not
complete her community service hours because she did not always have gas to put in her
car to drive there. She testified that she went for community service once but arrived too
late and went back home. Defendant asserted that she would do better if placed back on
probation because “jail life” was not for her. Defendant testified that she tested positive
for drugs in May 2019 because of her back and facial pain. She said that she had a
prescription for hydrocodone at the time but it was not enough for the pain. Defendant
agreed that she is a drug addict and needs treatment. She said that she would live with
her mother if released back on probation, and she would have to go to “Allcor or
somewhere” to look for a job.

       On cross-examination, Defendant testified that she met with her forensic social
worker, Shondra Jones, but she did not recall if Ms. Jones prepared a treatment plan for
her. Defendant also did not remember completing a mental health assessment.
Defendant testified that she did not make any efforts to go to treatment after completing
the inpatient treatment program because she thought a social worker would call her. She
did not try to contact Ms. Jones because she did not have her telephone number.
Defendant thought that she signed something with Ms. Popova indicating that she needed
help.

      At the conclusion of probation revocation hearing, the trial court revoked
Defendant’s probation and ordered her to serve the balance of her sentence in
confinement.

       Analysis

      On appeal, Defendant argues that that trial court erred by revoking her probation
and ordering her to serve the balance of her original sentence in confinement. She
contends that the trial court should have imposed a sentence of split confinement after
which she would then be furloughed to substance abuse and mental health treatment
courses.



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       In Tennessee, 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 defendant
has violated the conditions of his or her probation. Tenn. Code Ann. §§ 40-35-310,
311(e). The trial court has full discretionary authority to order the defendant to serve his
or her sentence in confinement. State v. Hunter, 1 S.W.3d 643, 646 (Tenn. 1999). A trial
court’s judgment will not be disturbed absent an abuse of discretion. State v. Harkins,
811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion occurs when “the record
contains no substantial evidence to support the conclusion of the trial judge that a
violation of the conditions of probation has occurred.” State v. Delp, 614 S.W.2d 395,
398 (Tenn. Crim. App. 1980).

       The trial court in this case found that the State had met its burden of proof either
through evidence presented at the revocation hearing or by stipulation that all of the
violations contained in the probation violation warrant occurred. The trial court took into
consideration Defendant’s need for drug and mental health treatment. However, the trial
court ultimately determined that the balance of Defendant’s original sentence should be
served in confinement. Specifically, the trial court found:

        But then we look to the actions. And once again really the testimony
        seemed to the Court, through demeanor and words, that this was more
        about [Defendant] doesn’t think she needs to be in the jail as opposed to
        a sincere request for treatment or intervention. There was not a lot of
        sincerity or motivation in the testimony or in the actions. Needs it, but in
        no doubt does this Court think she’s ready or truly wants it, which
        creates a significant issue.

        I’ll even go to the part where, as the General was arguing and going
        through - - and these things, [defense counsel], you can’t do anything
        about. But as you sit there with your client and she’s going through - -
        the DA’s going through her cognitive behavior intervention program and
        the excuses for the miss on December 10th, 11th and 17th, your client is
        sitting there rolling her eyes. You can’t do anything with that, [defense
        counsel]. That after the proof - - and you can’t do anything with how
        your client presents on the stand. You’ve done a fine job of putting forth
        a case that this is a defendant in need of intervention. The Court finds,
        though, that this is a defendant that is in no way motivated or ready for
        any intervention. So, therefore, she is revoked to serve the balance of
        her sentence in custody.

      In this case, the evidence clearly supports the trial judge court’s finding that the
balance of Defendant’s sentence should be served in confinement. This is Defendant’s
second probation violation in this case. Defendant concedes, and the proof shows, that
she committed the probation violations which include: testing positive for morphine on

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January 3, 2019, and May 10, 2019, failing to pay her court costs and supervision fees,
failing to complete community service hours, failing to complete a mental health
assessment as recommended by the forensic social worker, failing to obtain lawful
employment, failing to provide proof of attending community support meetings or
obtaining a sponsor, and being discharged twice from the cognitive behavior intervention
program. Defendant only challenges the decision of the trial court to order confinement.
Where the defendant admits to the violation of the terms of probation, withdrawal of
probation by the trial court is “neither arbitrary nor capricious.” State v. Michael Emler,
No. 01C01-9512-CC-00424, 1996 WL 691018, at *2 (Tenn. Crim. App. Nov. 27, 1996).

       It is well within the trial court’s discretion to determine the appropriate disposition
of the case after a violation has occurred. The trial court did not abuse its discretion in
ordering confinement for Defendant’s sentence because there is a plethora of evidence in
the record to support this decision. Upon finding that the Defendant violated the terms of
her probation, it was within the trial court’s authority to order the Defendant to serve her
original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e); State
v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Moreover, “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); see also State v.
Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn.
Crim. App. at Nashville, Feb. 11, 2002). State v. Makoyous Houston, No. E2018-01118-
CCA-R3-CD, 2019 WL 4274147, at *4 (Tenn. Crim. App. Sept. 10, 2019). Defendant is
not entitled to relief on this issue.

                                          CONCLUSION

       For the foregoing reasons, the decision of the trial court is affirmed.


                                           ____________________________________
                                           THOMAS T. WOODALL, JUDGE




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