         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs May 11, 2004

     STATE OF TENNESSEE v. ANTHONY CHARLES HENDERSON

                   Direct Appeal from the Circuit Court for White County
                        No. CR762, CR730      Leon Burns, Jr., Judge



                     No. M2003-02145-CCA-R3-CD - Filed June 25, 2004


On August 1, 2001, Defendant, Anthony Charles Henderson, entered guilty pleas to two counts of
sale of cocaine in an amount less than .5 grams, a Class C felony. See Tenn. Code Ann. § 39-17-417.
Defendant received concurrent sentences of five years for his convictions with ninety days to be
served in confinement and the remainder to be served on supervised probation. Defendant was also
ordered to pay $2,000 in fines. On July 24, 2002, a violation of probation warrant was issued.
Following an evidentiary hearing, the trial court found that Defendant violated the conditions of his
probation and ordered Defendant to serve his original sentences in confinement. Defendant appeals
the trial court’s revocation of probation, arguing that there was no substantial evidence to support
the revocation. Defendant also argues that the sentences imposed following the revocation were
excessive. After reviewing the record on appeal, we conclude that the trial court did not abuse its
discretion in revoking Defendant’s probation and ordering Defendant to serve his original sentences
in confinement.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

David Brady, District Public Defender; and John B. Nisbet, III, Assistant District Public Defender,
for the Appellant, Anthony Charles Henderson.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
William E. Gibson, District Attorney General; John Moore, Assistant District Attorney General; and
William Locke, Assistant District Attorney General, for the Appellee, the State of Tennessee.

                                            OPINION

       The probation violation warrant, issued July 24, 2002, alleged that Defendant violated the
conditions of his probation by failing to report on July 11, 2002; being delinquent in the payment of
his probation fees from November, 2001, through July, 2002; failing to pay fines and court costs as
ordered; and failing to complete community service work as ordered.

        At the July 28, 2003, probation revocation hearing, Chet Darby, of the Tennessee Department
of Probation and Parole, testified that Defendant failed to report on July 11, 2002. After Defendant
failed to report on July 11, 2002, Mr. Darby attempted to contact Defendant, but he was unable to
locate Defendant. Mr. Darby testified that Defendant reported again on August 27, 2002. At that
meeting, Mr. Darby advised Defendant that a probation violation warrant had been issued. Mr.
Darby testified that he had no contact with Defendant following the August 27, 2002, meeting. Mr.
Darby testified that Defendant was ordered to perform 100 hours of community service work, and
he had completed only fifty at the time of the probation violation warrant.

       Defendant did not testify at the revocation hearing. At the conclusion of the hearing, the trial
court revoked Defendant’s probation and ordered Defendant to serve his original sentences
incarcerated.

Standard of Review

        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 person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310, 311(e). The decision to revoke probation rests within the sound
discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
Revocation of probation and a community corrections sentence is subject to an abuse of discretion
standard of review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). Discretion is abused only if the record contains no substantial evidence to support the
conclusion of the trial court that a violation of probation or community corrections sentence has
occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation
need not be established beyond a reasonable doubt, and the evidence need only show that the trial
judge exercised a conscientious and intelligent judgment, rather than acting arbitrarily. Gregory, 946
S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

         Defendant argues that there is no substantial evidence to support the trial court’s conclusion
that Defendant violated the conditions of his probation. Defendant concedes, however, that he
missed an appointment with his probation officer in July, 2002. Mr. Darby, Defendant’s probation
officer, testified that Defendant failed to report on July 11, 2002. This is sufficient for the trial court
to conclude that Defendant violated the conditions of probation. The trial court clearly based its
decision to revoke probation on Defendant’s failure to report, stating, “It’s for failing to appear in
July, and he didn’t appear in July. And he didn’t have – he has no explanation for not reporting in
July.” Mr. Darby also testified that Defendant was delinquent in the payment of his fines and court
costs. We are unable to conclude that no substantial evidence exists to support the trial court’s
revocation of probation.




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         Defendant asserts that the trial court abused its discretion in revoking Defendant’s probation
because the trial court based its ruling in part on Defendant’s decision not to testify. This abuse of
discretion, Defendant argues, is evidenced by the trial court’s emphasis on Defendant’s decision not
to testify at the revocation hearing. At the conclusion of the hearing, the trial court ruled as follows:

         [Trial court]:          Well, what – I don’t know what Mr. Henderson is hiding,
                                 but if he’s not willing to tell me that he can do better, then
                                 I think clearly, if he didn’t report since August, he has not
                                 complied with his conditions of probation, for not
                                 reporting.

         [Defense counsel]:      That’s not currently before you.

         [Trial court]:          It’s for failing to appear in July, and he didn’t appear in
                                 July. And he didn’t have – he has no explanation for not
                                 reporting in July. So, he’s not poor, that didn’t cause him
                                 not to report. He just hasn’t been reporting.

         [Defense counsel]:      He didn’t report one time.

         [Trial court]:          Okay. Well, all I know to do with him is revoke him to
                                 serve his sentence. I think there is some burden on the part
                                 of the defendant to comply with the conditions, and he has
                                 not complied with those conditions, nor has he made some
                                 reasonable effort to explain why he could not have
                                 complied. Clearly, he has not complied, so, therefore, he’s
                                 revoked to serve his sentence.

        At the revocation hearing, defense counsel requested leniency from the trial court, and the
trial court responded, “any leniencies that might be considered would have to come as a result of
[Defendant’s] pleading his case, Mr. Nisbet, more so than you pleading his case.” We have already
concluded that the probation officer’s testimony at the revocation hearing gave the trial court a basis
upon which to revoke probation. Defendant is not entitled to relief on this issue.

        Defendant also argues that the trial court’s imposition of Defendant’s original sentence was
too harsh. Under the statute that gives trial courts authority to revoke suspended sentences, trial
courts have discretionary authority “to commence the execution of the judgment as originally
entered.” Tenn. Code Ann. § 40-35-311(e). Furthermore, in State v. Hunter, 1 S.W.3d 643 (Tenn.
1999), our supreme court held, “at the conclusion of a probation revocation hearing, a trial court can:
(1) order incarceration; (2) cause execution of the judgment as it was originally entered; or (3) extend
the remaining probationary period for a period not to exceed two years.” Id. at 648.




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       In his brief, Defendant cites Hunter for the position that the trial court acted too harshly by
ordering Defendant to serve his original sentences by incarceration. The court in Hunter stated as
follows:

         Under the statute [Tenn. Code Ann. § 40-35-308(c)], the trial court has the option
         to extend the existing probationary period up to two additional years instead of
         imposing the original sentence. The Sentencing Commission Comments suggest
         that section 40-35-308(c) was designed to address situations where a defendant
         violates probation near the end of the probation term and reinstatement of the
         defendant’s original sentence would produce too harsh a result.

State v. Hunter, 1 S.W.3d at 646-47.

        Defendant argues that he complied with the conditions of his probation from August, 2001,
until July, 2002, when he missed an appointment with his probation officer. We conclude that the
harsh result that the court intended to prevent in Hunter is not present in this case. Defendant was
not “near the end” of his probation term. See id. Defendant is not entitled to relief on this issue.

                                          CONCLUSION

       The judgment of the trial court is affirmed.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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