        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 25, 2014

       STATE OF TENNESSEE v. DEMETRIUS MARCELLE SMITH

                 Appeal from the Criminal Court for Hamilton County
                      No. 269133     Barry A. Steelman, Judge


                  No. E2013-01796-CCA-R3-CD - Filed April 7, 2014


The Defendant, Demetrius Marcelle Smith, appeals the revocation of his probation by the
Hamilton County Criminal Court. On appeal, the Defendant argues that the trial court erred
in revoking his probation and ordering his sentence into execution. Following our review,
we affirm the judgment of the Hamilton County Criminal Court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Jay Underwood, Chattanooga, Tennessee, for the appellant, Demetrius Marcelle Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
William H. Cox, III, District Attorney General; and Lance Pope, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

        On December 14, 2009, the Defendant pled guilty to aggravated assault, a Class C
felony. See Tenn. Code Ann. § 39-13-102. He was sentenced as a Range II, multiple
offender to seven years and was placed on probation. On November 29, 2010, the trial court
revoked the Defendant’s probation and ordered that he serve eleven months and twenty-nine
days in confinement followed by intensive probation for the remainder of his sentence. The
Defendant again violated his probation, and on October 1, 2012, the trial court ordered
continued probation and added a further requirement that he attend drug treatment. On
October 26, 2012, the trial court issued a capias for the Defendant after he failed to report
to his probation officer or attend a drug treatment program.
       The trial court held a hearing on July 8, 2013, to determine whether the Defendant’s
probation should be revoked as a result of his most recent probation violations. At the
revocation hearing, the Defendant’s probation officer, Hampton Steele, testified that he had
not seen the Defendant since October 1, 2012. Mr. Steele testified that the Defendant did not
attend the court ordered drug treatment program, nor did the Defendant contact Mr. Steele
to attempt to schedule treatment. Mr. Steele also stated that he was not aware of any new
criminal activity from the Defendant.

        Sam Bullock testified on behalf of the Defendant. Mr. Bullock testified that he works
for the organization “House of Refuge,” which he described as a “faith-based program” with
“drug and alcohol classes” that works to “help [people] get back into independent living and
become responsible.” Mr. Bullock stated that he had been in contact with the Defendant
prior to his incarceration and that the Defendant expressed a willingness to attend the
program. Mr. Bullock also testified that the program currently had a space open for the
Defendant.

       After hearing the testimony of these two witnesses, the trial court revoked the
Defendant’s probation and ordered him to serve the remainder of his seven-year sentence in
confinement. The trial court based its decision on the facts that the Defendant’s probation
had been revoked twice previously, that following the last revocation the Defendant had not
reported to his probation officer, and that he also failed to attend a court ordered drug
treatment program. Although the court acknowledged that House of Refuge was a viable
alternative to confinement, it expressed reluctance to entrust the Defendant to that program
given his history of violating probation.


                                         ANALYSIS

        On appeal, the Defendant’s main contention is that the trial court improperly
considered the nature of the underlying offense when deciding to revoke his probation. The
Defendant contends that because his probation violation was only a technical violation, the
trial court could and should have ordered continued probation rather than ordering his
sentence into execution. The State responds that there was uncontroverted evidence that the
Defendant violated the terms of his probation by failing to report to his probation officer.
Therefore, the State concludes that the trial court acted within its discretion in revoking the
Defendant’s probation and placing his sentence into effect. We agree with the State.

       A trial court’s authority to revoke a suspended sentence is derived from Tennessee
Code Annotated section 40-35-310, which provides that the trial court possesses the power
“at any time within the maximum time that was directed and ordered by the court for the

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suspension, . . . to revoke . . . the suspension” and cause the original judgment to be put into
effect. 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 release. Tenn. Code. Ann. §
40-35-311(e).

       Furthermore, the trial court’s decision to revoke probation will be upheld on appeal
unless there has been an abuse of discretion. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn.
Crim. App. 2005); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To find
an abuse of discretion in a probation revocation case, the record must be devoid of any
substantial evidence that would support the trial court’s decision that a violation of the
conditions of probation occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn.
Crim. App. 1980). Such a finding “‘reflects that the trial court’s logic and reasoning was
improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

        The Defendant contends that the trial court improperly relied on the nature of the
underlying crime when deciding whether to revoke his probation. While it is true that courts
should not revoke probation based on criminal conduct that was known at the time probation
was granted, see State v. Beard, 189 S.W.3d 730, 737 (Tenn. Crim. App. 2005), the record
belies the Defendant’s contention that the trial court improperly relied on such evidence in
this case. The trial court did briefly mention that the Defendant’s underlying crime was
violent, but only in response to defense counsel’s contention that he was currently on
probation for “the only violent conviction he’s had.” The trial court went on to say that the
“most concerning” factor for the court was that at his last revocation hearing, the Defendant
had been given an opportunity to report back to his probation officer and attend drug
treatment, but he failed to comply with either condition. The record shows that the trial court
properly focused its decision to revoke the Defendant’s probation on his failure to comply
with the conditions of his probation. “[I]f a trial court determines that a defendant has
violated the conditions of probation, it has the authority to revoke the defendant’s probation
and cause execution of the original judgment.” State v. Hunter, 1 S.W.3d 643, 646 (Tenn.
1999). The trial court acted within its discretionary authority to revoke the Defendant’s
probation and impose his original seven-year sentence. See Tenn. Code Ann. §§ 40-35-310,
-311(e). The Defendant’s claim is without merit.


                                       CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgment of the trial

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court is affirmed.

                           _____________________________
                           D. KELLY THOMAS, JR., JUDGE




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