        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs July 23, 2013

          STATE OF TENNESSEE v. MICHAEL ALAN BURLESON

               Direct Appeal from the Circuit Court for Blount County
                   Nos. C20473 - 75    Tammy Harrington, Judge


             No. E2013-00585-CCA-MR3-CD - Filed September 20, 2013


The appellant, Michael Alan Burleson, pled guilty to three counts of aggravated burglary of
a vehicle and was sentenced to a total of five years to be served on community corrections.
Thereafter, the trial court revoked the sentences and ordered the appellant to serve the
balance of his sentence in confinement. On appeal, the appellant contends the trial court
abused its discretion by denying an alternative sentence. Upon review, we affirm the
judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee
(at trial), for the appellant, Michael Alan Burleson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Betsy Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The record reflects that on February 10, 2012, the appellant pled guilty to three counts
of aggravated burglary. Pursuant to the plea agreement, the trial court imposed sentences of
two years, two years, and one year, which were to be served consecutively on community
corrections.
       On June 13, 2012, a violation of community corrections warrant was filed against the
appellant, alleging that he failed to report and to attend a Moral Recognition Therapy (MRT)
class. On September 20, 2012, and on January 7, 2013, amended warrants were filed,
alleging that the appellant had amassed new criminal charges.

       At the revocation hearing, Officer Brian Hensley with the East Tennessee Human
Resource Agency testified that he was the appellant’s community corrections supervisor. The
appellant first reported on February 14, 2012, and he was required to report weekly.
Additionally, as a condition of his release, the appellant was to attend MRT classes, which
were designed to deal with alcohol and drug addiction.

       Officer Hensley said that on April 25, 2012, he issued a written warning to the
appellant regarding his failure to be employed, to complete thirty hours of community service
work per week, and to be truthful with the community corrections officer. Officer Hensley
said that the appellant never corrected his behavior. The appellant failed to provide proof
that he was applying for jobs, and he failed to report as ordered.

        Officer Hensley said that the appellant last reported on June 6, 2012. After that day,
another probationer, Jonathan Beck, informed Officer Hensley that the appellant told him to
tell Officer Hensley that the appellant would not report again. Officer Hensley waited five
days to see if the appellant would report, but the appellant missed an appointment and an
MRT class. Officer Hensley attempted to call the appellant, sent him text messages, and
went by the appellant’s house, but the appellant never responded. Thereafter, Officer
Hensley filed a violation warrant.

        Officer Hensley said that he later learned that the appellant had been charged with
resisting arrest and possession of drug paraphernalia.

       Officer Hensley said that he doubted the appellant could successfully complete an
alternative sentence, noting, “You can’t get through a program when you won’t report and
do your check-in.”

       On cross-examination, Officer Hensley said that he gave the appellant one drug test,
which he passed. Officer Hensley talked to the appellant about his noncompliance, and the
appellant promised to “do better” and “try harder.” The appellant always seemed “laid-back
[and] nonchalant.”

       Officer Hensley said that he doubted the appellant had “the will to do the program”
because he would not report or get a job. He said that warning the appellant of an impending
violation warrant had no effect on the appellant’s behavior. The appellant said that he was

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working but failed to provide proof.       Officer Hensley surmised that the appellant’s
grandparents helped him financially.

        Regarding the new charges, Maryville Police Officer Dwight William Porter, II,
testified that on the night of September 17, 2012, he responded to a domestic disturbance call
at 617 Ardmore Circle. The complainant said that the person who had caused the disturbance
had fled in a white minivan. After Officer Porter left the residence, he saw a white minivan
and activated his emergency lights to stop the vehicle. The van sped up, went through a
traffic light, and drove into a parking lot. Officer Porter saw the appellant jump out of the
passenger side of the vehicle and flee on foot. Officer Porter recognized the appellant and
knew he had “three active warrants on file” for violation of probation. Officer Porter ordered
the appellant to stop running and chased after him. Officer Porter searched the area for thirty
minutes but was unable to find the appellant. Thereafter, Officer Porter filed a warrant
against the appellant for resisting arrest.

       Officer Porter said he later learned that the appellant had been staying at his
grandmother’s house, and he went to that location to serve the warrant on the appellant. After
Officer Porter knocked on the door, the appellant attempted to flee. Officer Porter told the
appellant that the house was surrounded and that he should not run. Officer Porter took the
appellant into custody, patted him down, and found in his pocket a multi-color glass pipe.
The pipe smelled like marijuana and had the residue of a green, leafy substance inside.
Officer Porter said the pipe was warm, indicating that it had been recently smoked. He
arrested the appellant for possession of drug paraphernalia.

       The twenty-one-year-old appellant testified that he was single and had three small
children by two different mothers. The appellant owed child support for all three children,
and court dates were scheduled for his failure to pay child support. The appellant said that
he had been on community corrections for approximately one year and was living at his
mother’s house. As a condition of his release, he was required to report once per week,
attend MRT classes, perform thirty hours of community service per week, and seek
employment by filling out a minimum of ten applications a week. The appellant’s mother
supported him.

       The appellant acknowledged that Officer Hensley’s testimony “was pretty accurate.”
He said that he had been “lazy and didn’t really go through with the program, thought I could
slide by [without being incarcerated].” He was incarcerated for 120 days following his arrest
for possession of drug paraphernalia, which “kind of woke [him] up a little bit.” The
appellant and his mother fought because she had to support him. The appellant said that his
mother was not happy with him and that at the beginning of June, she asked him to leave her
home because he was not complying with the terms of his release. Thereafter, the appellant

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left home, “never reported[,] and just went on doing [his] own thing.” The appellant denied
speaking with Beck, who was his “charge partner.” He acknowledged that if he did not get
a job and support his children, the court would be displeased with him and would send him
to jail.

        The appellant said that he had a general equivalency diploma and that he had
previously worked in construction. The appellant said that he had been unemployed for two
years because he was lazy. The appellant said that when he was a juvenile, he was
adjudicated unruly. He was granted probation, which he violated twice. As a result of those
violations, he was confined on weekends. He said that after being confined for 120 days
after his most recent arrest, he was “taking things seriously.” He wanted to comply with the
terms of his release to avoid further incarceration. He asked the court for the chance to prove
that he could successfully comply with an alternative sentence.

       On cross-examination, the appellant said that his first arrest as an adult occurred one
month after his eighteenth birthday. He received probation, which he claimed he completed
successfully. He denied violating probation six months after it was granted. The appellant
was later charged with two counts of burglary of a vehicle. He did not recall violating the
probationary sentences he was granted for those offenses.

       The appellant acknowledged that he had failed to appear in the instant case. He
further acknowledged that he ran from Officer Porter, explaining, “I seen the blue lights and
my adrenaline started to kick in, and I just jumped out and ran.” The next day, the appellant
was in possession of a marijuana pipe. He said that it was warm from being in his pocket,
not from recent use.

       The court found that the appellant violated the conditions of his community
corrections sentence by failing to report, failing to attend MRT classes, and failing to obey
the law by resisting arrest and possessing drug paraphernalia. The court found that despite
being warned regarding his probation violation in April 2012, the appellant continued to
violate the conditions of his release. The court stated that the appellant’s youth and laziness
did not excuse his behavior. Accordingly, the court revoked the appellant’s community
corrections sentence and ordered him to serve the balance of his sentence in confinement.

       On appeal, the appellant challenges the trial court’s refusal to grant an alternative
sentence after revoking his community corrections sentence.

                                        II. Analysis

       Initially, we note that the appellant acknowledges that his notice of appeal was

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untimely filed and asks this court to waive the timely filing. Rule 4(a) of the Tennessee
Rules of Appellate Procedure instructs that “the notice of appeal required by Rule 3 shall be
filed with and received by the clerk of the trial court within 30 days after the date of entry of
the judgment appealed from [.]” The trial court entered the order revoking his community
corrections sentence on January 7, 2013. The appellant’s notice of appeal was filed on
February 28, 2013, rendering it untimely. Regardless, Rule 4 provides that “in all criminal
cases the ‘notice of appeal’ document is not jurisdictional and the filing of such document
may be waived in the interest of justice.” Tenn. R. App. P. 4(a). We have chosen to waive
the timely filing to address the appellant’s concerns.

      Generally, community corrections sentences are governed by the Tennessee
Community Corrections Act of 1985. See Tenn. Code Ann. § 40-36-101, et seq. The Act
provides as follows:

                     The court shall . . . 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 any community-based alternative to
              incarceration.

Tenn. Code Ann. § 40-36-106(e)(4). A trial court may revoke a community corrections
sentence upon finding by a preponderance of the evidence that an offender violated the
conditions of his suspended sentence. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
The trial court’s revocation of a community corrections sentence will be upheld absent an
abuse of discretion. Id. An abuse of discretion occurs if the record contains no substantial
evidence to support the conclusion of the trial court that a violation of community corrections
has occurred. See State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

        The appellant concedes that he violated the terms of his release but maintains that due
to his “change of heart in his approach to his responsibilities on community corrections, it
would have been reasonable to try community corrections at least once more before ordering
confinement for the balance of the sentence.” As we stated earlier, the trial court was entitled
to order the appellant to serve his original sentence in confinement after revoking his
community corrections sentence. See Tenn. Code Ann. § 40-36-106 (e)(4). Moreover, this
court has repeatedly cautioned “‘that an accused, already on [alternative sentencing], is not
entitled to a second grant of probation or another form of alternative sentencing.’” State v.

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Benjamin William Riffey, No. E2011-00641-CCA-R3-CD, 2012 WL 762320, at *8 (Tenn.
Crim. App. at Knoxville, Mar. 9, 2012) (quoting State v. Jeffrey A. Warfield, No. 01C01-
9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. at Nashville, Feb. 10, 1999)).

                                     III. Conclusion

       In sum, we conclude that the trial court did not abuse its discretion by revoking the
appellant’s community corrections sentence and by ordering him to serve the balance of his
original sentence in confinement. Accordingly, we affirm the judgment of the trial court.


                                                  _________________________________
                                                  NORMA McGEE OGLE, JUDGE




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