                                                                                        02/28/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                       Assigned on Briefs November 28, 2017

            STATE OF TENNESSEE v. JOSHUA TEFFETELLER

                 Appeal from the Circuit Court for Blount County
         No. C-21131, C-24062, C-24064-65     David Reed Duggan, Judge
                    ___________________________________

                           No. E2017-00101-CCA-R3-CD
                       ___________________________________


In February 2013, the Defendant, Joshua Teffeteller, pleaded guilty to identity theft, and
the trial court granted judicial diversion and ordered him to serve three years on
Community Corrections. On September 17, 2015, the Defendant was charged with
numerous offenses and, the following day, the Defendant’s Community Corrections
officer filed an affidavit, alleging that the Defendant had violated his Community
Corrections sentence on multiple grounds. The Defendant pleaded guilty to the charges
on March 7, 2016, and received additional Community Corrections sentences. On
August 25, 2016, another probation violation warrant was issued and, after a hearing, the
trial court revoked the Defendant’s Community Corrections sentences and ordered the
Defendant to serve the balance of his sentences in confinement. On appeal, the
Defendant contends: (1) that the trial court erred when it ordered him to serve his
sentences in confinement rather than reinstating his Community Corrections sentences;
and (2) that one of his sentences had expired. After review, we affirm the trial court’s
judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, J., joined.

Mark Stephens, District Public Defender, and Michael R. Tabler, Assistant District
Public Defender, Knoxville, Tennessee, for the appellant, Joshua Grant Teffeteller.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Mike L. Flynn, District Attorney General; and Matthew Dunn,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION
                                         I. Facts


        On February 11, 2013, the Defendant pleaded guilty to identity theft (“C21131”),
a Class D felony. The trial court granted judicial diversion and ordered the Defendant to
serve three years on Community Corrections. On October 10, 2014, the Defendant
pleaded guilty to theft and the trial court imposed a sentence of eleven months and
twenty-nine days to be served consecutively to C21131. On July 24, 2015, the Defendant
pleaded guilty to theft, receiving a sentence for eleven months and twenty-nine days to be
served consecutively to the October 10, 2014 theft conviction. On September 17, 2015,
the Defendant was arrested for two counts of theft of property over $500, one count of
theft of property under $500, one count of theft of property over $1000, three counts of
burglary of a building, and three counts of burglary of a vehicle. The Defendant pleaded
guilty to these offenses on March 7, 2015.

       Following these charges, the trial court issued a probation violation warrant based
upon the new arrests, the Defendant’s failure to report to his probation officer, failure to
provide proof of employment, testing positive for Benzodiazepine, failure to pay court
costs and supervisions fees, and failure to show proof of completion of 100 hours of
community service. On March 7, 2016, the Defendant waived his right to a hearing and
stipulated to the facts set out in the violation of Community Corrections warrant. By
agreement of the parties, the trial court found that the Defendant had materially violated
the conditions of his sentence and ordered the Defendant to serve 267 days in jail with the
balance to be served through Community Corrections. The trial court also required that
the Defendant complete Recovery Court.

        On April 13, 2016, the trial court issued a probation violation warrant based upon
the Defendant’s discharge from Recovery Court. The Defendant once again waived his
right to a hearing and stipulated to the facts as set out in the violation of Community
Corrections warrant. By agreement of the parties, the trial court found a material
violation and ordered the Defendant to serve 160 days before returning to Community
Corrections for the balance of the sentence. On August 25, 2016, the trial court issued a
third probation violation warrant based upon the Defendant testing positive for
Benzodiazepine. The affidavit was later amended to add that the Defendant had
tampered with a drug screen and then tested positive for numerous substances following
his arrest on the probation violation.

        On December 20, 2016, the trial court held a hearing and the parties presented the
following evidence: Richard Stonis, the Defendant’s Community Corrections officer,
testified that he met with the Defendant on August 17, 2016, for an intake upon the
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Defendant’s release from jail. The Defendant had already been in Community
Corrections so the majority of paperwork had already been completed, but Mr. Stonis
arranged for the Defendant to be assigned to “an MRT group” and set up days for “check-
in.” Additionally Mr. Stonis reviewed the rules and conditions of Community
Corrections with the Defendant.

       Mr. Stonis testified that several days later, the Defendant contacted him by phone.
The Defendant notified Mr. Stonis that he had been to a doctor and obtained a
prescription. He inquired about whether he could take the prescription and still comply
with the conditions of his sentence. Mr. Stonis advised that the Defendant could begin
taking the prescribed medication but that he needed to bring the medical documentation,
the prescription, and the pill bottles to his next group meeting on August 23, 2016. Mr.
Stonis was not present at the group meeting but later learned that the Defendant failed to
bring the necessary items as requested. The following day, Mr. Stonis contacted the
Defendant and directed him to bring the medical documentation, the prescription, and the
pill bottles that day. When the Defendant arrived, Mr. Stonis advised the Defendant he
would be required to undergo a urine screen. The screen indicated the presence of
Benzodiazepine.

       Mr. Stonis testified that on August 24, 2016, he discussed with the Defendant his
conduct at the group meeting the previous night and the failed drug test. Mr. Stonis
asked the Defendant for the requested medical documentation for the prescribed
medication. The Defendant produced three receipts from a pharmacy for three separate
prescriptions. Mr. Stonis identified the results of the urine screen and the pharmacy
receipts. The receipts indicated that the prescriptions were filled on December 9, 2015,
and that there were “no refills.” Mr. Stonis explained to the Defendant that the receipts
showed “old prescriptions” and asked about whether the Defendant had current
prescriptions. The Defendant stated that he did not but that he had a scheduled doctor’s
appointment on September 15, 2016, approximately three weeks later.

       Mr. Stonis testified that he advised the Defendant that he was going to file a
warrant based upon the failed drug test and the old prescriptions. Further, he told the
Defendant that he would contact him after he had filed the warrant and that the Defendant
would “need to surrender.” Mr. Stonis filed the warrant on August 25, 2016, and then
called the Defendant to notify him of the active warrant and told him “he needed to
surrender.” The Defendant stated that he would do so but, ultimately, did not.

       Mr. Stonis identified inmate drug testing forms for Blount County Jail. The forms
were dated October 6, 2016. The first form evidenced an attempt to conduct a screen at
9:00 a.m., however, the Defendant “was caught filling the urine cup with water.” This
form was signed by the Defendant. The second form evidenced a screen conducted at
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10:43 a.m., and indicated that he tested positive for “BZO’s, methamphetamine,
amphetamine, and oxycodone.” This form was also signed by the Defendant. Mr. Stonis
testified that he supervised the Defendant for “[b]asically a week.” He stated that he did
not believe that he could effectively supervise the Defendant.

       On cross-examination, Mr. Stonis agreed that the Defendant complied with his
request to come to the office on August 24, 2016. He further agreed that the Defendant
attended the scheduled MRT class; however, he noted that the Defendant appeared at the
August 23, 2016 MRT class “intoxicated and had to be escorted out.”

       Sheila Pellasma, a Community Corrections treatment specialist, testified about the
August 23, 2016 MRT class that the Defendant had attended. She said that when he
entered the room, “he appeared very drowsy, his speech was slurred, he had a staggered
gait, and he had difficulty following what [they] were trying to do in the MRT group.”
Ms. Pellasma recalled that the other group members “appeared to be very
uncomfortable,” so she removed the Defendant from the group and spoke with him in her
office. The Defendant informed her that he had taken medication. She observed that the
Defendant had difficulty following simple commands. For example, she asked him to
call someone to come and pick him up four times and it was on the fifth instruction that
the Defendant complied. He also “could not find his way out of the office,” so Ms.
Pellasma escorted him out to wait for his ride. Ms. Pellasma said that the Defendant was
supposed to provide her with medical documentation as requested by Mr. Stonis but did
not do so. On cross-examination, Mrs. Pellasma stated that she would not be “agreeable”
to the Defendant returning to Community Corrections.

        Linda Teffeteller, the Defendant’s mother, testified that in December 2014, they
had discovered that her husband had “stage-four lung cancer and brain cancer.”
Recently, her husband had been “placed on hospice.” Ms. Teffeteller said that the
Defendant and his father were “really close” and the diagnosis seemed to make the
Defendant “angry.” Ms. Teffeteller said that the Defendant had been diagnosed with
“Depression. Panic attacks. Excessive anxiety.” Ms. Teffeteller recalled that the
Defendant’s anxiety began around the time his nephew was killed, in March 2012, when
hit by a train. The Defendant has been treated for his anxiety by both his primary care
physician and a psychiatrist. Ms. Teffeteller identified the Defendant’s prescription
records that she had obtained from Walgreen’s. She confirmed that the records showed
that the Defendant had a prescription for Alprazolam filled on August 26, 2016.

       Ms. Teffeteller said that the Defendant had had “a lot of different jobs,” and
received training for welding and auto body. She stated that she had no concern about
the Defendant’s ability to obtain employment if the trial court granted an alternative
sentence. Upon questioning about drug treatment that the Defendant had received, other
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than Drug Court, Ms. Teffeteller said that the Defendant had “gone to the emergency
room a couple of times to try to get help.” She believed, however, that he could
successfully complete a drug and alcohol treatment program.

       The Defendant testified that he was twenty-six years old and had completed high
school. He said that he competed in football, baseball, golf, and wrestling in high school
and that his grades were “pretty good.” The Defendant stated that he began working
when he was fourteen years old mowing lawns. Since that time he had held jobs as an
auto body technician, a security officer, a “laborer,” and a welder before starting his own
business, “Tree Commanders and Professional Landscaping.” The Defendant expressed
his desire to return to school to become “a culinary arts specialist or do something with
technology.”

        The Defendant testified that he had been diagnosed with “PTSD, two different
forms of anxiety, panic disorder, and depression.” He recalled that shortly after his
nephew was killed, he “felt like [he] was dying.” He described the episode as “weird”
and the “onset” of his diagnosis. The Defendant said that he has gone to the hospital on
five different occasions because of his panic attacks. He stated that, for his mental health
diagnoses, he has been prescribed Citalopram, Escitalopram, Alprazolam, Klonopin,
Paxil, and Strattera.

        The Defendant described his father as his best friend and stated that his father’s
diagnosis has been difficult for him. The Defendant stated that this hearing was so
important to him because he hoped to be released so that he could see his father before he
died. The Defendant agreed that his criminal history was “closely related” to his drug
use. Following his nephew’s death, the Defendant felt “down and depressed” and used
illegal drugs to self-medicate. He became addicted to the drugs, experiencing physical
symptoms in their absence.

       The Defendant testified that, on February 11, 2013, he pleaded guilty to identity
theft and the trial court granted judicial diversion for a three-year sentence. On
September 8, 2015, the Defendant was arrested on a probation violation warrant for
acquiring new charges and failing a drug test. On March 24, 2016, the Defendant
pleaded guilty to “a number of charges” and “submitted on a violation of [his] judicial
diversion.” He was ordered to complete Recovery Court as part of the agreement but did
not successfully complete Recovery Court. He explained that he was removed from
Recovery Court for “tak[ing] Suboxone inside the jail.” The Defendant agreed to a
violation based upon drug use and the allegation that he had circulated drugs in the jail
and served “160-day split confinement” before being returned to Community
Corrections. The Defendant agreed he was released from jail on August 11, 2016, and
immediately returned to Community Corrections.
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       The Defendant testified that after his release from jail in August 2016, they
learned that his father’s cancer had spread to his spine. The Defendant said that he was
“devastated” by this news and began experiencing anxiety attacks and depression. The
Defendant disagreed with Mr. Stonis’s testimony about the Defendant’s phone call about
his prescription. The Defendant said that because he was experiencing panic attacks, he
called his doctor first and told them that he had four pills left from his prior prescription.
His doctor said he could take the remaining pills for his anxiety “until [he] got in to see
him.” The Defendant then called Mr. Stonis and told him about the old prescription and
his panic attacks. Mr. Stonis said, “well, just bring it in in the morning.” Five or ten
minutes after that conversation, the Defendant called Mr. Stonis again to make sure it was
all right for him to take the prescription medication. He explained that he did this
because he did not want to “mess up” and “lose time with [his] family.”

       The Defendant read from a medical record entry from his primary medical
physician’s records dated August 26, 2016 as follows:

       Emergency visit, out of jail on Community Corrections. Father placed on
       hospice. Took Xanax from old RX. Facing going back to jail. Panic
       attacks worse. Anxious. Sleep off, mood down, denies SI.

The Defendant testified about the night he was removed from the MRT class. He said
that he took the old prescription after Mr. Stonis told him he could but that “[i]t affected
me a lot worse than just starting out because I was on it for like three years so I was on a
higher dose than what somebody starting out should be taking.” He agreed that his
behavior was affected by the medication on the night he attended the MRT class but that
it was not intentional.

        The Defendant testified that he was told to take his medication and paperwork to
Mr. Stonis the following day, which he did. Mr. Stonis told the Defendant that he could
not file a violation warrant based upon the violation but that he “would have to talk to the
District Attorney.” The Defendant stated that he did not remember having a discussion
with Mr. Stonis about “turning [him]self in” on the violation warrant. The Defendant
recalled that he made an agreement with Andy Long to turn himself in on a certain date.
He admitted that he did not do so but explained that he failed to turn himself in so that he
could spend more time with his father. The Defendant agreed that he failed to turn
himself in, and then failed a drug screen when he was placed in custody. The Defendant
stated that he would like to undergo inpatient treatment followed by intensive outpatient
treatment. The Defendant agreed that therapy would be beneficial for him.



                                            -6-
       On cross-examination, the Defendant agreed that his initial charge was in 2011
before his nephew was killed. He was on probation through judicial diversion when he
added ten additional charges in September 2015. The Defendant’s judicial diversion was
revoked and he was in custody from September 2015 until April 2016. During that time
period, he entered the Recovery Court program, completed the “in-jail phase,” and then
was released to complete the second phase. The Defendant was released from jail for
only a day or two before being re-sentenced to “another 160-day split.” The Defendant
agreed that he knew he was in violation of the Recovery Court rules at the time he took
Suboxone while still in custody. The Defendant was again released on August 11, 2016,
and was in “good standing” until the current violation warrant was issued on August 25,
2016. The Defendant agreed that once the warrant was issued he was “made aware” that
he needed to turn himself in. The Defendant admitted that he posted on Facebook about
the warrant and “turn[ing] [him]self in.” After the Defendant was “picked up,” he
attempted to provide the jail with a false drug sample and then ultimately tested positive
for opiates. The Defendant agreed that his PCP, Dr. Snow, did not prescribe opiates for
him. He agreed that the current violation was the third on his identity theft conviction.

       After hearing this evidence, the trial court found that the Defendant had violated
the terms of his Community Corrections sentences based upon “failing a drug screen,
testing positive for Benzodiazepines and also at the time of his arrest being given a drug
screen that he adulterated filling the urine cup with water, then being a second screen that
he failed, testing positive for Benzodiazepines, methamphetamine, amphetamine, and
oxycodone.” The trial court noted this was the third violation with respect to case
C21131 and the second violation with respect to cases C24062, C24064, and C24065.
The Defendant stipulated to the violations; however, the trial court still made the finding,
in regard to discrepancies in the testimony, that Mr. Stonis’s testimony was credible.
About the Defendant’s drug addiction and need for rehabilitation, the trial court stated:

       [Y]ou’ve had the opportunity to be on a diversion and you did not take
       advantage of that. And then even when you went on Community
       Corrections, you had the opportunity to get treatment in Recovery Court
       and you did not take full advantage of that and were terminated. And it
       sounds like, if I credit your testimony here today, that even after you were
       found to be in violation of your Community Corrections rules, you possibly
       had the opportunity to return to Recovery Court, and you chose not to do
       that. You didn’t want to do that.

              So, sometimes we’re just at the end of what’s available to do.

The trial court revoked the Defendant’s Community Corrections sentences and ordered
the Defendant to serve the sentences in confinement.
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                                       II. Analysis

       On appeal, the Defendant argues that the trial court erred when it ordered him to
serve his sentences in confinement rather than allowing him an alternative sentence. He
also argues that his sentence in C21131 had expired at the time the trial court revoked the
sentences.

                                     A. Revocation

       The Defendant asserts that the trial court abused its discretion when it ordered him
to serve his sentences in confinement. He argues that the trial court should have ordered
split confinement, allowing him the opportunity to seek drug treatment. The State
responds that the record supports the trial court’s judgment. We agree with the State.

       Our review of a trial court’s revocation of a Community Corrections sentence is
similar to our review of a trial court’s probation revocation. State v. Harkins, 811 S.W.2d
79, 83 (Tenn. 1991). A trial court may revoke probation upon its finding by a
preponderance of the evidence that a violation of the conditions of probation has
occurred. T.C.A. § 40-35-311(e) (2014). “In probation revocation hearings, the
credibility of witnesses is to be determined by the trial judge.” State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991). If a trial court revokes a defendant’s
probation, its options include ordering confinement, ordering the sentence into execution
as originally entered, returning the defendant to probation on modified conditions as
appropriate, or extending the defendant’s period of probation by up to two years. T.C.A.
§§ 40-35-308(a), (c), -310 (2014); see State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999).

       The judgment of the trial court in a revocation proceeding will not be disturbed on
appeal unless there has been an abuse of discretion. See State v. Smith, 909 S.W.2d 471,
473 (Tenn. Crim. App. 1995). In order 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 probation has occurred.” State v. Shaffer, 45 S.W.3d 553,
554 (Tenn. 2001). After finding a violation, the trial court is vested with the statutory
authority to “revoke the probation and suspension of sentence and cause the defendant to
commence the execution of the judgment as originally entered.” T.C.A. § 40-35-
311(e)(1) (2014); accord Hunter, 1 S.W.3d at 646 (holding that the trial court retains the
discretionary authority to order the defendant to serve his or her original sentence in
confinement). Furthermore, when probation is revoked, the trial court may order “the
original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension.” T.C.A. § 40-35-310(a) (2014).

                                           -8-
       The evidence shows that the Defendant failed to bring the documents and items
that Mr. Stonis requested to the MRT class on August 24, 2016. He attended the MRT
class exhibiting signs of intoxication and was asked to leave due to his behavior. The
following day, August 25, 2016, the Defendant was again told to bring the proper
documentation and items for prescribed medication. The Defendant met with Mr. Stonis
but, once again, failed to bring the requested information and items. Instead, he brought
old pharmacy receipts showing that he had purchased prescription medication in
December 2015. Mr. Stonis filed a violation warrant and notified the Defendant of the
active warrant. The Defendant failed to turn himself in and when apprehended, the
Defendant attempted to provide a false sample for his drug screen. Upon proper
screening, the Defendant tested positive for numerous substances, including opiates. The
Defendant conceded that his doctor had not prescribed opiates. Moreover, this was the
Defendant’s second time violating his Community Corrections sentence. Thus, the trial
court did not abuse its discretion when it ordered the Defendant’s Community
Corrections sentence to be revoked. The Defendant is not entitled to relief as to this
issue.

                         B. The Expiration of Case No. C21131

       The Defendant asserts that the trial court erred in imposing the Defendant’s
sentence in C21131 because the sentence had already expired. The State responds that
because the probation violation warrant was filed before the C21131 term was set to
expire, the trial court retained jurisdiction to enter an order of conviction and sentence the
Defendant to Community Corrections. We agree with the State.

       In State v. Johnson, this Court set forth the procedure for revocation of judicial
diversion:

       1. Upon placing a defendant on judicial diversion, the trial court shall enter
       an order reflecting the grant of judicial diversion, the length and conditions
       of probation, and that further proceedings are deferred. See Tenn. Code
       Ann. § 40-35-313(a)(1)(A). This shall be by order and not by the entry of
       the customary judgment of conviction form. A standard probation order
       may also be entered. Jail time may not be imposed as a condition of
       probation under the judicial diversion statute.

       2. If there is an alleged violation of probation, the matter shall proceed
       under the ordinary procedure for revocation of probation. See Tenn. Code
       Ann. § 40-35-311(a).



                                            -9-
      3. If the trial court determines by a preponderance of the evidence that the
      defendant has violated probation, the trial court may find a violation of
      probation. See Tenn. Code Ann. § 40-35-311(e).

      4. Upon finding a violation of probation, the trial court shall proceed to
      sentence the defendant for the original offense. See Tenn. Code Ann. § 40–
      35–313(a)(2). Sentencing shall proceed pursuant to the standard provisions
      of the Sentencing Act. See Tenn. Code Ann. § 40-35-101 et seq.

      5. The trial court shall then enter a standard judgment of conviction form
      reflecting the sentence. Either under the special conditions portion of the
      judgment form or by separate order, there should also be a notation that the
      judgment is being entered pursuant to the judicial diversion statute based
      upon a violation of probation.

       Generally, revocation may occur only within the probationary period. State v.
Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001). If, however, a probation revocation warrant is
issued within the term of probation, it tolls the limitation of time in which the court may
act to revoke probation. Alder v. State, 108 S.W.3d 263, 267 (Tenn. 2002) (emphasis
omitted) (citing Shaffer, 45 S.W.3d at 555). In this case, the September 18, 2015 warrant
tolled the limitation of time in which the trial court had to act to revoke probation;
therefore the Petitioner is not entitled to relief on these grounds.

                                     III. Conclusion

      Based upon the foregoing, we affirm the trial court’s judgment.




                                             ____________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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