                                                                                        07/12/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs June 26, 2018

            STATE OF TENNESSEE v. DARIN PAUL DECKARD

                  Appeal from the Circuit Court for Blount County
                  No. C2312124      Tammy M. Harrington, Judge
                      ___________________________________

                           No. E2017-02467-CCA-R3-CD
                       ___________________________________


The Defendant, Darin Paul Deckard, appeals the trial court’s order requiring him to serve
the remainder of 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, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Mack Garner, District Public
Defender (at hearing), for the appellant, Darin Paul Deckard.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Mike L. Flynn, District Attorney General; and Tiffany Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.


                             MEMORANDUM OPINION

        On December 15, 2014, the Defendant was convicted of theft of property valued
over $1,000 and sentenced to four years of supervised probation. We glean from the
record that this conviction arose from a guilty plea involving other convictions and
resulting in an effective six-year sentence. The only judgment form included in the
record on appeal is for the theft conviction, and on appeal, the Defendant only challenges
the probation revocation as it applies to the four-year sentence for the theft conviction.
       On August 15, 2017, a probation violation warrant was issued for the Defendant.
The warrant alleged that on August 9, 2017, the Defendant “engaged in assaultive,
abusive, threatening, and intimidating behavior” and was arrested for domestic assault.
The warrant further alleged that the Defendant tested positive for morphine on December
9, 2016; December 15, 2016; January 6, 2017; and April 28, 2017.

       At the probation revocation hearing, Ms. Ashley Watson of the Tennessee
Department of Correction testified that she had been supervising the Defendant’s
probation since September 2016. She explained that after the Defendant failed his drug
screens, he was referred to a forensic social worker, who recommended that the
Defendant participate in either an inpatient or an outpatient drug treatment program. The
Defendant declined treatment and indicated he wanted to participate in a relapse
prevention group. He failed to attend two of the relapse prevention classes. He was
automatically dismissed from the class after being charged with a subsequent offense.

       On cross-examination, Ms. Watson testified that the Defendant attended three out
of five relapse prevention classes. She agreed that other than testing positive for drugs,
he remained in compliance with the rules. On redirect, Ms. Watson noted that the
Defendant had a prior violation on February 18, 2016, for testing positive for
methamphetamine, amphetamine, and morphine. She further testified that the Defendant
did not show up to his last scheduled meeting with her.

        The thirty-six-year-old Defendant stipulated to the four positive drug screens. He
testified that he used morphine from his “early or mid[-]twenties” until he was twenty-
seven. He remained sober for nearly five years until he stopped attending meetings. He
stated that after his first failed drug screen, he was given another chance. He was
working as a subcontractor with heat and air and plumbing companies. He remained
clean for a couple of months, then started using drugs again. This process repeated until
the probation violation warrant was issued. The Defendant explained that he failed to
attend his meeting with Ms. Watson because he had started using drugs again and was
“afraid of what was going to happen.”

       After the Defendant was arrested for domestic assault, he made bond and attended
a drug and alcohol treatment program at Serenity Center. He remained there for twenty-
three days and was arrested for the probation violation six days after returning home. At
the time of the sentencing hearing, the Defendant had been in jail for seventy-one days.
He explained that he planned to continue treatment with Serenity Center and to continue
attending recovery meetings. He stated that his sister had agreed to allow him to live
with her and that he could support himself working as a plumber.



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        On cross-examination, the Defendant testified that he has been convicted of six
felonies, including one conviction for forgery committed against his mother. He agreed
that his fourteen-year-old daughter was the victim in the domestic assault charge he
received while on probation. He acknowledged that his first probation violation was due
to failed drug screens, which resulted in his serving forty-five days in jail before being
released back on probation. When asked why he did not turn himself in to authorities
after an arrest warrant was issued, he explained, “There were things I wanted to take care
of before I came to jail.” He agreed that after making bond on the domestic assault
charge, he was charged with failure to appear.

       The trial court revoked the Defendant’s probation on the ground that the
Defendant materially violated his probation by testing positive on four separate drug
screens, to which the Defendant stipulated. The trial court noted its concern about the
Defendant’s continued drug use despite intervention and his failure to turn himself in to
the authorities both before and after he attended treatment at Serenity Center. The court
specifically noted that the Defendant was given many opportunities for treatment within a
short period of time and that the Defendant failed to take advantage of them. The trial
court concluded that the Defendant was not amenable to treatment and intervention and
ordered him to serve the remainder of his sentence in confinement. The Defendant
timely appeals.

                                       ANALYSIS

       On appeal, the Defendant acknowledges the basis of the revocation but argues that
he should not have been ordered to confinement for the remainder of his sentence. He
asserts that his acknowledgement of his drug problem, initiative to seek treatment, and
willingness to cooperate with additional treatment and supervision make him amenable to
further drug treatment.

        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.
§§ 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-

                                           -3-
9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999)), no perm.
app. filed.

        Here, the Defendant had previously violated his probation on the basis of failed
drug screens. He admitted to consistently using drugs even while seeking intervention.
The trial court was particularly troubled by the Defendant’s continued drug use despite
many opportunities for treatment and by the Defendant’s failure to turn himself in to the
authorities. We discern no abuse of discretion in the trial court’s ordering the Defendant
to serve the remainder of his sentence in confinement. He is accordingly 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, PRESIDING JUDGE




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