                                                                                         07/21/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 9, 2020

           STATE OF TENNESSEE v. JOSHUA BRYAN JOHNSON

            Appeal from the Circuit Court for Montgomery County
   Nos. CC18-CR-10, CC16-CR-391, CC-15-CR-1130 William R. Goodman, III,
                                    Judge
                   ___________________________________

                           No. M2019-00943-CCA-R3-CD
                       ___________________________________


After pleading guilty to several offenses, Defendant, Joshua Bryan Johnson, received an
effective eight-year sentence to be served on probation. A violation of probation warrant
was issued and the trial court fully revoked his probation after a hearing. Defendant filed
a timely notice of appeal. After the notice of appeal was filed, Defendant filed a motion
pursuant to Rule 35 of the Tennessee Rules of Appellate Procedure asking the trial court
to modify his sentence to provide for inpatient rehabilitation. The trial court held a
hearing on the motion and denied relief. Defendant filed an additional notice of appeal
and this Court consolidated the appeals. After a review, we affirm the judgments of the
trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jay Umerley (on appeal), Nashville, Tennessee, and Crystal Myers (at violation hearing)
and Kenneth Merriweather (at motions hearing), Clarksville, Tennessee, for the appellant,
Joshua Bryan Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Lee Willoughby,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION
        From the scant record on appeal, we have ascertained that in mid-October of 2018,
Defendant pled guilty to possession of methamphetamine with the intent to manufacture,
deliver, or sell in case number 18-CR-10; burglary other than a habitation in case number
16-CR-391; and vandalism in case number 15-CR-1130. For these offenses he received
concurrent sentences of eight years, four years, and eleven months and twenty-nine days,
respectively. The judgment forms for these convictions do not appear in the technical
record. However, from other documents that appear in the technical record, we have
gleaned that Defendant’s sentences were suspended to probation for a period of eight
years.1

       In January of 2019, an affidavit was filed alleging that Defendant violated the
terms of his probation by: (1) failing to notify his probation officer of a change of
residence; (2) failing to report to his probation officer as required; (3) and testing positive
for amphetamine, methamphetamine, cocaine, codeine, and morphine. In April of 2019,
an amended probation violation report was filed indicating that Defendant had a “new
arrest” on March 6, 2019, for theft of property, shoplifting, and a “[m]ethamphetamine
violation.” As a result of the new arrest, an amended probation violation warrant was
issued to include the allegation that Defendant had failed to “obey the laws of the United
States” by getting arrested on the new charges.

       The trial court held a hearing on the probation violation. At the hearing, the State
introduced certified judgments for Defendant’s new convictions for joy riding and
shoplifting. For each conviction, Defendant received a sentence of forty days and
received credit for forty days served.

       Briana Byers testified that she supervised Defendant’s probation. She explained
that Defendant reported to probation one time, on October 25, 2018. That same day,
Defendant tested positive for amphetamines, methamphetamines, cocaine, codeine, and
morphine. Ms. Byers conducted a home visit to an address provided by Defendant on
West Belair Boulevard and was told by Defendant’s step-sister that he did not live at the
residence.

       Defendant testified that when he was not incarcerated, he lived at his mother’s
house on West Belair Boulevard but that he was not at the residence when his probation
officer visited in October “because [his] mother was in jail during that time” and
Defendant did not get along with his step-father. Defendant explained that he “was
staying at [his] aunt’s house” when his probation officer visited. Defendant claimed that

        1
          The violation of probation affidavit actually lists the period of probation as ten years. However,
in the transcript of the hearing on the violation, counsel for the State explained that it is an eight-year
probationary sentence.
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he attempted to notify his probation officer that he had “nowhere to stay” and that he was
not staying at his mother’s house.

       Defendant admitted that he “pretty well realized” there was a warrant for his arrest
about a month after he stopped reporting but when his mother got diagnosed with cancer
in January he tried to stay out of jail “as long as [he] could.”

       Defendant explained that he would live at his mother’s home if he were released
from jail but that, at the time of the hearing, his mother was suffering from “stage IV
terminal bone cancer.” Defendant’s mother was released from jail after her diagnosis and
Defendant took his mother to and from Vanderbilt for chemotherapy prior to his arrest.
At the time of the hearing, doctors “stopped the chemo” because it was not working.
Defendant’s mother spent some time “on hospice.” Defendant explained that if
something happened to his mother he would go to Safe Harbor Rehabilitation. Defendant
had “already spoke[n] to rehab and got an acceptance letter.”

       Defendant explained to the trial court that he was thirty-three years of age and had
been using drugs since he was fifteen years old. Defendant reported that he had never
been in a treatment program but that he had been “in-and-out of jail [his] whole life.”
Defendant asked the trial court that he be allowed “to go spend some time with his
mom.” He explained that as soon as his mother passed away he would turn himself in to
Safe Harbor Rehabilitation for six months. Defendant admitted to the trial court that his
“track record [wa]s not good” and that he had been given “a lot of chances.” Defendant
made a promise to the trial court that if given the chance he would “go to this program
and finish it for [the trial court], for [his] mom, and for [himself].”

        At the conclusion of the hearing, the trial court commented that it was “an
understatement to say that it’s a bad situation with [Defendant’s] mother.” However, the
trial court noted Defendant had a “significant” criminal history as well as a history of
failing to report and failing to show up in court. The trial court found that the court had
“probably been too easy on [Defendant]” in the past. The trial court stated that there was
no “other choice” but to revoke Defendant’s probation and order him to serve his
sentence. The trial court issued an order on May 13, 2019, finding Defendant in violation
of probation and ordering full revocation of his probation. Defendant received 69 days of
jail credit. Defendant filed a notice of appeal in the trial court on May 20, 2019. The
trial court notified Defendant that he should file the notice of appeal in this Court.
Defendant filed a timely notice of appeal on June 3, 2019.

      On May 20, 2019, Defendant filed a pro se Motion for Approval to Furlough to
Rehab. In the motion, he explained that he had a bed reserved at Safe Harbor
Rehabilitation Center in Memphis and requested the trial court grant him a furlough to
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enter the program at that facility. On July 15, 2019, Defendant filed a motion to modify
his sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. The trial
court held a hearing on the motions. At this hearing, counsel for Defendant
acknowledged that the motion for furlough was moot because Defendant was currently
incarcerated in the Tennessee Department of Correction. Defendant testified that the
reason for filing the motion was “[t]o try to get to go to rehab.” Defendant admitted that
he was under the influence of both methamphetamines and opiates at the time he was
arrested on the charges which eventually led to the violation of probation. Defendant
claimed that he discussed rehab with his probation officer and “already [had] a bed . . . at
the Hope Center Rehab” but that he needed the approval of his probation officer to go.
Defendant admitted that he did not inform the trial court of this information during his
violation hearing because his “lawyer told [him] . . . [not] to put the blame on [his]
probation officer.” Defendant had also been accepted to Safe Harbor Rehabilitation in
Memphis.

       Defendant explained that he tried to get into a drug program with the Department
of Correction but explained that he was not “tapped” for any programs because he was
not parole mandated so there would be no programs available for him while in custody of
the Department of Correction. Defendant admitted on cross-examination that he had a
criminal history dating back to 2011 and explained that “all” of his criminal history was
“due to his drug problem.” Defendant admitted that he was given leniency on multiple
charges when he testified for the State in a murder trial and that he failed on probation.

        At the conclusion of the hearing the trial court noted that it was good that
Defendant “recognized that perhaps he needs help” but was concerned that Defendant
was “given probation” and only made the decision to attempt rehab when he was in the
custody of the Department of Correction. The trial court noted that Defendant had the
opportunity for rehab while he was out of prison and chose not to go. At this point, the
trial court determined that it was “just a little late” and denied the motion.

       Defendant filed a second notice of appeal from the denial of relief under Rule 35
on October 28, 2019. On October 30, 2019, this Court entered an order consolidating the
two appeals. It is from the revocation of probation and the denial of the Rule 35 motion
that Defendant now appeals.

                                         Analysis

        On appeal, Defendant “does not challenge the revocation of probation, but asserts
that the trial court erred by enforcing the sentence and not allowing him to enter a rehab
facility.” The State contends that Defendant has waived his issue on appeal by failing to

                                           -4-
cite to relevant legal authority and by failing to appeal the denial of the motion under
Rule 35. Moreover, the State insists that the trial court did not abuse its discretion.

       At the outset, we are compelled to note that Defendant did not, as the State
suggests, fail to file a notice of appeal with regard to the denial of his Rule 35 motion.
As noted above, Defendant filed a notice of appeal after the trial court revoked his
probation and filed a separate notice of appeal after the trial court denied his motion
pursuant to Rule 35. This Court consolidated the two appeals.

        However, we agree with the State’s assessment that Defendant waived his issues
on appeal by failing to support his argument with citation to authority. Time and again
we have cautioned that “[i]ssues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived” in the
appellate court. Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7)( (a
brief shall contain “[a]n argument . . . setting forth the contentions of the appellant with
respect to the issues presented, and the reasons, therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and appropriate
references to the record . . . relief on”). Defendant’s entire brief contains three citations
appearing in footnotes in the Statement of the Case section of the brief. Of these three
citations, only one, a citation to State v. Bise, 380 S.W.3d 682, 707-08 (Tenn. 2012), is
relevant to Defendant’s argument on appeal. Defendant’s issues are waived.

                                        Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.



                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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