                                                                                                  07/16/2020
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                             Assigned on Briefs April 29, 2020

                 STATE OF TENNESSEE v. SHANNON DANIELS

                 Appeal from the Criminal Court for Campbell County
                         No. 148801 E. Shayne Sexton, Judge
                      ___________________________________

                             No. E2019-01602-CCA-R3-CD
                         ___________________________________

The Appellant, Shannon Daniels, appeals the Campbell County Criminal Court’s
revocation of her probation and ordering that she serve the balance of her effective ten-
year sentence in confinement. 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 Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which TIMOTHY L. EASTER
and J. ROSS DYER, JJ., joined.

Corbin H. Payne, Knoxville, Tennessee, for the appellant, Shannon Daniels.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Jared Ralph Effler, District Attorney General; and Lindsey Cadle,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                    I. Factual Background

        On November 14, 2011, the Appellant pled guilty as a Range I, standard offender
to two counts of aggravated assault, a Class C felony; one count of reckless endangerment,
a Class E felony; one count of theft under $500, a Class A misdemeanor; one count of
aggravated assault against a public employee, a Class A misdemeanor; and one count of
resisting arrest, a Class B misdemeanor. After a sentencing hearing, the trial court imposed
an effective ten-year sentence to be served as six-months in jail followed by supervised
probation.
       1
         We note that the trial court case number on the Appellant’s notice of appeal was incorrect,
however, the error has been corrected.
       On November 7, 2013, the Appellant’s probation officer filed a probation violation
report, alleging that the Appellant violated her probation by failing to report to her
probation officer during September 2013, by failing to attend a meeting with the
Administrative Case Review Committee on October 24, 2013, and by failing to make
payments on court costs and restitution. A probation violation warrant was issued. On
January 13, 2014, the trial court found that the Appellant violated her probation and ordered
that she serve 120 days in jail and the balance of her sentence on “TDOC-FS.”

       On April 23, 2014, the Appellant’s probation officer filed a second probation
violation report, alleging that the Appellant violated her probation by failing to make
payments on court costs and restitution and by making verbal threats to a neighbor after
the Appellant’s pit bull got loose on the neighbor’s property. A probation violation warrant
was issued. On May 5, 2014, the trial court found that the Appellant violated her probation,
credited her with time served in jail, and ordered that she continue to serve the balance of
her sentence on TDOC-FS.

        On June 3, 2016, the Appellant’s probation officer filed a third probation violation
report, alleging that the Appellant violated her probation by failing to provide proof of
attendance to mandated anger management therapy; by missing her appointment with
TDOC FSW; by testing positive for THC, Suboxone, BUP, and Oxycodone; by failing to
pay supervision fees; by failing to provide proof of completing community service; and by
failing to pay restitution. A probation violation warrant was issued.

        On July 20, 2016, an amended probation warrant was issued, alleging that the
Appellant also violated her probation by attempting to falsify a drug screen and by using a
“drug screen defeat device” on January 26, 2016. On October 24, 2016, the trial court
ordered that the Appellant complete an alcohol and drug assessment. On October 28, 2016,
the trial court filed an order, finding that the Appellant had violated her probation and
noting that the assessment ordered on October 24 had been completed. The trial court
ordered that the Appellant be released from custody, reinstated her probation, and ordered
that she be given credit for time served in jail.

       On November 1, 2018, the Appellant’s probation officer filed a fourth probation
violation report, alleging the Appellant violated her probation by failing to submit proof of
employment; by failing to inform a probation officer about her change of residence and
change of employment; by failing to obtain permission from a probation officer to leave
the county of residence or the State of Tennessee; by failing to allow a probation officer
“to verify listed residence for a home visit”; by failing “to comply with lawful instructions
upon sentencing hearing held on or about 6/26/18 for Strong-R assessment”; by failing to
report to the probation office as instructed; by failing to submit to a random drug screen;
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by failing to pay courts costs; by failing to pay supervision fees; by failing to obtain an
alcohol and drug assessment; and by failing to submit a DNA analysis specimen to the TBI
as required by law. A probation violation warranted was issued.

        On August 12, 2019, the Appellant appeared in court for a revocation hearing. At
the outset of the hearing, the Appellant acknowledged committing most of the violations
listed in the probation violation report. She stated, though, that she completed an alcohol
and drug assessment “three years ago” and that the assessment should be in her file. The
Appellant’s probation officer, who was present in the courtroom, advised the trial court
that the Appellant was ordered to complete an alcohol and drug assessment in 2012 but
that no documentation of the assessment existed. The probation officer also advised the
trial court that another assessment was ordered in 2016 but that the Appellant failed to
complete it.

        Defense counsel informed the trial court that the Appellant completed an assessment
while the Appellant was in jail. The trial court responded that it was concerned about the
Appellant’s absconding from supervision, not her failure to complete the assessment.
Defense counsel stated that this was the Appellant’s third probation violation and that she
absconded in November 2018. At that point, the Appellant’s probation officer advised the
trial court that the Appellant was last seen in the probation office on May 23, 2018, when
he “drug screened her.” He also stated that the Appellant was supposed to return on June
26, 2018, for a risk and needs assessment but that she failed to do so and that her first two
violations were due to her failure to report. Defense counsel informed the trial court that,
according to the Appellant, she was in the hospital during part of June 2018 and that her
child was suffering from severe seizures, which contributed to her failure to report.

        The trial court noted that the most recent probation violation warrant was not filed
until November 2018. The court stated, “I’m not gonna do this again. Simply not gonna
do it.” Defense counsel argued that the Appellant had a history of mental illness and could
do well on probation. Defense counsel then stated, “My client has got a lot going on in her
life. I really do think that she could -- she can do well on this.” The court responded, “No,
she can’t, she won’t show up.” The trial court allowed the Appellant to address the court,
and the Appellant said, “I’m begging you, please, have mercy on me.” The trial court
stated as follows:

       The mercy has been shown twice. This is not about mercy. I can’t get you
       to do anything. You won’t show up. So, what more would you have me do?
       Do you want eight violations, ten violations? No. I am not doing this again.
       I’m not doing it again. I cannot preach loud and high enough about staying
       engaged in probation. . . . So I -- I’m not doing again what has not worked
       time after time after time. At what point does someone say, I’m gonna do
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       this myself? I’m not playing it anymore. This is a -- this is a very serious
       program, probation is a serious program, and you don’t take it very serious.

The trial court revoked the Appellant’s probation and ordered that she serve the balance of
her effective sentence in confinement.

                                         II. Analysis

        The Appellant does not deny that she violated her probation but asserts that she was
denied due process because the trial court revoked her probation without “giving her the
ability to be heard in person and to present her arguments on an appropriate sentence for
her probation violation.” The Appellant acknowledges that the trial court had the right to
conduct an informal hearing by asking questions about the nature of her probation
violations but contends that the trial court abused its discretion and violated due process by
interrupting defense counsel and herself at the hearing while they presented arguments for
mitigation. We conclude that the trial court properly revoked the Appellant’s probation
and that the trial court did not deny her due process.

        Upon finding by a preponderance of the evidence that the Appellant has violated the
terms of her probation, a trial court is authorized to order the Appellant to serve the balance
of her original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e);
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Furthermore, probation revocation rests
in the sound discretion of the trial court and will not be overturned by this court absent an
abuse of that discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).
“A trial court abuses its discretion when it applies incorrect legal standards, reaches an
illogical conclusion, bases its ruling on a clearly erroneous assessment of the proof, or
applies reasoning that causes an injustice to the complaining party.” State v. Phelps, 329
S.W.3d 436, 443 (Tenn. 2010). This court has 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. 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).

      Initially, we note that this is the Appellant’s fourth probation violation, not her third.
Regardless, defense counsel stated the outset of the latest revocation hearing that “we will
be submitting to the [violation of probation].” Accordingly, the trial court properly revoked
the Appellant’s probation.

      As to the Appellant’s claim that she was denied due process, the trial court asked
the Appellant if she was admitting to the violations listed in the report, and the Appellant
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took issue with only one of violations: whether she failed to complete the alcohol and drug
assessment. The trial court allowed the Appellant to address the court, and the Appellant
asked for “mercy.” The trial court stated that mercy already had been shown to the
Appellant and that the trial court was “not doing again what has not worked time after time
after time.” The trial court then asked, “So is there anything else that needs to be put on
the record?” Defense counsel requested that the trial court declare the Appellant indigent.
Defense counsel did not request to call the Appellant or any other witnesses to the stand
and made no further argument. Therefore, we conclude that the trial court did not prohibit
defense counsel or the Appellant from arguing mitigation and that the Appellant was not
denied due process. To the contrary, we think the trial court has been more than patient
with the Appellant. Thus, we conclude that the trial court did not abuse its discretion by
revoking her probation and by ordering that she serve the balance of her effective ten-year
sentence in confinement.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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