                                                                                       02/23/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs January 4, 2018

               STATE OF TENNESSEE v. CAREY GOODMAN

                 Appeal from the Circuit Court for Madison County
                        No. 15-308 Donald H. Allen, Judge
                     ___________________________________

                          No. W2017-01104-CCA-R3-CD
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The Defendant, Carey Goodman, appeals the trial court’s order requiring him to serve his
sentence in confinement after the revocation of his probation. Following our review, we
affirm the judgment of the trial court in accordance with Rule 20, Rules of the Court of
Criminal Appeals.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant District
Public Defender, for the appellant, Carey Goodman.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Jody Pickens, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.

                             MEMORANDUM OPINION

        On September 21, 2015, the Defendant pleaded guilty to aggravated assault and
received a sentence of four years and six months, to be suspended after serving nine
months in incarceration. On the day he entered his guilty plea, the Defendant was
released onto supervised probation, which was set to expire on July 23, 2019. On
October 24, 2016, a probation violation warrant was issued for the Defendant, alleging
that he had consumed an excessive amount of alcohol and was arrested for driving under
the influence (DUI), violation of open container law, driving on a suspended license, and
violation of registration law.
       At the probation revocation hearing, the Defendant admitted that he had consumed
a 375 milliliter bottle of Jim Beam whiskey and then drove to the store to purchase
cigarettes. He had a blood alcohol concentration of 0.14 percent. He admitted to
entering a guilty plea to DUI, third offense, and to violation of a habitual motor vehicle
offender (HMVO) order. He was sentenced to one year for the HMVO offense and to
eleven months and twenty-nine days for the DUI. For both sentences, he was required to
serve 120 days in incarceration with the remainder of the sentences to be suspended.

      The trial court found that the Defendant violated his probation by receiving new
convictions and using an excessive amount of an intoxicant. The court revoked the
Defendant’s probation and ordered him to serve the original sentence imposed in the
Tennessee Department of Correction (TDOC), receiving credit for his time served. The
Defendant now appeals.

                                       ANALYSIS

        We initially note that the probation revocation order was filed on May 1, 2017,
and the Defendant’s notice of appeal was filed thirty-one days after, on June 1, 2017. See
Tenn. R. App. P. 4(a) (requiring notice of appeal to be filed “within 30 days after the date
of entry of the judgment appealed from”). The Defendant asserts in his brief that he
originally informed defense counsel that he did not wish to appeal, but later decided to
seek an appeal. In consideration of the short one-day delay in filing, we waive the timely
filing requirement in the interest of justice and reach the merits of the Defendant’s claim.
See Tenn. R. App. P. 4(a) (authorizing this court to waive the timeliness requirement “in
the interest of justice”).

       The Defendant asserts on appeal that the trial court erred in ordering him to serve
his sentence in the TDOC after revoking his probation. He specifically argues that
because he had completed a required victim impact class, remained current on his court
cost payments, and obeyed the terms of supervision for nearly a year before his arrest, the
court should have allowed him to serve a period of “shock incarceration” followed by
probation, with the additional requirement of participating in an outpatient alcohol
treatment program.

       We review a trial court’s decision to revoke probation under an abuse of discretion
standard. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). 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). The trial court is authorized to order the incarceration of a defendant for
the entire term of the sentence when the defendant’s probation has been revoked. T.C.A.
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§§ 40-35-310(a), 40-35-311(e)(1)(A). “‘[A]n accused, already on probation, is not
entitled to a second grant of probation or another form of alternative sentencing.’” State
v. Gregory Lamar Gillespie, Jr., No. E2016-01970-CCA-R3-CD, 2017 WL 6027817, at
*4 (Tenn. Crim. App. Dec. 5, 2017) (quoting State v. Jeffrey A. Warfield, No. 01C01-
9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999)), no perm.
app. filed.

       The Defendant does not contest the trial court’s finding that he violated the terms
of his probation, and we agree that the record supports the finding of the trial court. See
State v. Aaron Jermaine Clark, No. E2017-00616-CCA-R3-CD, 2017 WL 6547102
(Tenn. Crim. App. Dec. 21, 2017) (noting that a defendant’s admission to violating the
terms of probation is sufficient to support probation revocation). In revoking the
Defendant’s probation, the trial court noted its concern about the Defendant “endangering
the public and endangering [him]self by drinking and driving,” especially since the
Defendant should not be driving at all. In consideration of the Defendant’s convictions
and his admission that he consumed an excessive amount of alcohol, we discern no abuse
of discretion in the trial court’s ordering the Defendant to serve his sentence in
confinement. Accordingly, he is not entitled to relief.

       When an opinion would have no precedential value, the Court of Criminal
Appeals may affirm the judgment or action of the trial court by memorandum opinion
when the judgment is rendered or the action is taken in a proceeding without a jury, such
judgment or action is not a determination of guilt, and the evidence does not preponderate
against the finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that
this case satisfies the criteria of Rule 20. The judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.



                                                  ________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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