        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs April 23, 2014

            STATE OF TENNESSEE v. RICKY NEAL FORSTER, II

                   Appeal from the Circuit Court for Blount County
              Nos. C-20641 & C-20642      Tammy M. Harrington, Judge


                   No. E2013-01963-CCA-R3-CD - Filed May 6, 2014


Appellant, Ricky Neal Forster, II, pleaded guilty to two counts of theft and received an
effective six-year sentence, suspended to probation. A probation violation warrant and an
amendment thereto were issued, alleging violations of the terms and conditions of probation
by: (1) testing positive for marijuana; (2) using controlled substances; (3) failing to complete
a drug rehabilitation program as instructed; (4) failing to make payments toward court costs
and restitution; and (5) garnering new criminal convictions. Following a hearing, the trial
court revoked appellant’s probation, which appellant now claims was an abuse of discretion.
Following our review, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
A LAN E. G LENN, JJ., joined.

J. Liddell Kirk (on appeal), Knoxville, Tennessee; Raymond Mack Garner, District Public
Defender; and Matthew Elrod, Assistant District Public Defender (at revocation hearing),
Maryville, Tennessee, for the appellant, Ricky Neal Forster, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Michael L. Flynn, District Attorney General; and Betsy Brockman Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                          I. Facts

                                   A. Procedural History

       On March 23, 2012, appellant pleaded guilty to one count of theft of property valued
at $500 or more, a Class E felony, and one count of theft of property valued less than $500,
a Class A misdemeanor. He received concurrent sentences of six years for felony theft and
eleven months, twenty-nine days for misdemeanor theft, and the sentences were suspended
to probation following completion of three Knox County sentences he was serving at the
time.

       The State obtained a probation violation warrant on April 18, 2013. The affidavit in
support of the warrant alleged that appellant had failed to complete a drug rehabilitation
program at Buffalo Valley as instructed, that he had tested positive for “THC” and had “self-
reported abuse of Roxycodone and Morphine,” and that he had failed to make a payment
toward court costs or restitution. The probation violation warrant was amended on July 1,
2013, based on appellant’s being arrested for theft and burglary in Knox County on May 15,
2013.

                                  B. Facts from Hearing

       At the outset of the August 9, 2013 hearing on the probation violation, the parties
agreed that appellant was eligible to receive a grant through the Supervised Probation
Offender Treatment (“SPOT”) program and that he had been placed on waiting lists at
several different treatment facilities. The State then introduced certified copies of
convictions for two counts of theft of property valued at more than $500 from Knox County,
dated June 26, 2013.

       The State presented Pamela Upton, appellant’s probation officer, as a witness. She
began supervising appellant’s probation in January 2013 when he was released from the
Tennessee Department of Correction (“TDOC”). When appellant first reported, he tested
positive for marijuana, so Ms. Upton referred him to an outpatient alcohol and drug program.
She instructed appellant to begin outpatient treatment on February 21 and instructed him to
report to her the same day. When appellant reported, he stated that he required more
intensive treatment than outpatient classes because he had been abusing Morphine and
Roxycodone. Accordingly, Ms. Upton referred appellant to their forensic social worker for
a rehabilitation evaluation on March 5. After the evaluation, the social worker arranged for
appellant to enter treatment at Buffalo Valley on March 11. On that day, he reported to the

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probation office and explained to Ms. Upton that he had medical problems that required
“urgent attention at the Health Department,” so she postponed his entry date at Buffalo
Valley until March 27.

       Ms. Upton confirmed that appellant entered treatment at Buffalo Valley as scheduled
on March 27. However, on April 1, she received a telephone call from one of the employees
there who reported that the staff suspected appellant of having brought drugs into the facility.
A search of appellant proved fruitless, so no action was taken at that time. On April 2, a
voice mail message awaited on Ms. Upton’s telephone, informing her that upon review of
security footage, appellant had been discharged from Buffalo Valley for participating in a
drug transaction at the facility. Ms. Upton spoke with appellant by telephone that day and
advised him that she would seek revocation of his probation. On April 18, appellant
contacted Ms. Upton and informed her that he was going to attempt to be admitted to
CenterPointe in Knoxville for rehabilitation, but she instructed appellant that he would have
to appear in court first to answer for the probation violations.

        Ms. Upton explained that from that point forward, she had no further contact with
appellant. In fact, she was unaware of his whereabouts until he was arrested in Knoxville
on May 17, 2013, on two new theft charges and a burglary charge. He subsequently pleaded
guilty to the theft charges and received concurrent sentences of one year each, to serve, that
were also concurrent with the sentences in the instant case. Ms. Upton stated that in addition
to the Knox County convictions, appellant had also been convicted in Campbell County.

       On cross-examination, Ms. Upton clarified that she did not seek a probation violation
warrant when appellant tested positive for marijuana or when he self-admitted use of
prescription drugs; she only did so when he was discharged from rehabilitation for
introducing drugs into the facility. She also emphasized that after appellant’s discharge from
Buffalo Valley, he “pretty much dropped out of sight.” She was going to have him classified
as an absconder, but he was arrested in Knoxville before she could do so. When asked if she
believed appellant committed the crimes to “feed a drug habit,” Ms. Upton responded that
she had “no idea.”

       Appellant testified on his own behalf and stated that he was twenty-nine years of age
and that he had earned a GED after being expelled from school in the eleventh grade. When
not in custody, appellant was employed as a painter. He testified that he used “any type
opiate” he could get and that he became addicted to heroin while in TDOC custody. He
recalled that he had used illegal drugs since he was fifteen or sixteen years of age. He
explained the circumstances of his discharge from Buffalo Valley and maintained that he was
not involved in a drug transaction. Appellant stated that he asked to be drug-tested at Buffalo
Valley, but they discharged him instead.

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         Appellant admitted that he had violated his probation and stated that he was “in the
wrong.” He claimed, however, that he had a “serious drug issue” and that his criminal
history was due to his “[s]tealing to get high.” He asked the trial court to give him another
opportunity to succeed at probation because he wanted to change, he “had the right mentality
this time,” and he was “in the wrong place at the wrong time” at Buffalo Valley. He stated
that if he received a sentence of split confinement rather than complete revocation, he would
be willing to go to a “halfway house” or submit to more strict supervision after he completed
his Knox County sentences.

      At the close of the hearing, the trial court found that appellant had violated the terms
and conditions of his probation by failing to complete rehabilitation, by abusing narcotics,
and by committing new criminal offenses. This appeal follows.

                                         II. Analysis

       Appellant claims that the trial court’s revocation of his probation constituted an abuse
of judicial discretion. We disagree.

                                   A. Standard of Review

        The revocation of a suspended sentence rests in the sound discretion of the trial judge.
State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997) (citing State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991)). In determining whether to revoke probation, it
is not necessary that the trial judge find that a violation of the terms of the probation has
occurred beyond a reasonable doubt. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If
the trial court finds by a preponderance of the evidence that the defendant has violated the
conditions of probation, the court is granted the authority to: (1) order confinement; (2) order
execution of the sentence as originally entered; (3) return the defendant to probation on
appropriate modified conditions; or (4) extend the defendant’s probationary period by up to
two years. Tenn. Code Ann. §§ 40-35-308(a), -308(c), -310, -311(e)(1); see State v. Hunter,
1 S.W.3d 643, 648 (Tenn. 1999). The appellate standard of review of a probation revocation
is abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State
v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[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)
(citing State v. Jordan, 325 S.W.3d 1, 38-40 (Tenn. 2010)). In the context of probation
revocations, for this court to find an abuse of discretion, “there must be no substantial
evidence to support the conclusion of the trial court that a violation of the conditions of



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probation has occurred.” Shaffer, 45 S.W.3d at 554; see also State v. Pamela J. Booker, No.
E2012-00809-CCA-R3-CD, 2012 WL 6632817, at *2 (Tenn. Crim. App. Dec. 19, 2012).

                              B. Alleged Abuse of Discretion

       Appellant “acknowledge[s] that he . . . violated the terms of release. He only contests
the exercise of the trial court’s discretion in determining what to do about the violation.” This
court has recognized that upon concluding that an appellant violated the terms and conditions
of his probation, “[t]he determination of the proper consequence of the . . . violation
embodies a separate exercise of discretion.” State v. Darius J. Hunt, No. E2011-01238-
CCA-R3-CD, 2012 WL 952265, at *2 (Tenn. Crim. App. Mar. 20, 2012) (citing State v.
Hunter, 1 S.W.3d 643, 647 (Tenn. 1999); State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim.
App. 2007)). Accordingly, our review in this case is limited to the trial court’s ordering
execution of appellant’s original sentence.

        In this case, we cannot conclude that the trial court abused its discretion. Appellant
tested positive for marijuana within days of his release from confinement. He admitted to
illegally using prescription medications. He failed to complete drug rehabilitation as
instructed. After leaving Buffalo Valley, appellant failed to maintain contact with his
probation officer. In the meantime, he was charged with two counts of theft and one count
of burglary, and he entered guilty pleas to the theft counts. Upon this record, we discern
ample evidence to support the trial court’s ordering appellant to serve his original sentence
in confinement.

                                       CONCLUSION

       Based upon the record as a whole, the briefs of the parties, and applicable legal
authority, we affirm the judgment of the trial court.




                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




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