                                                                                      07/11/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                   Assigned on Briefs June 27, 2017 at Knoxville

            STATE OF TENNESSEE v. DEVON ALVON WILSON

                 Appeal from the Circuit Court for Maury County
                No. 20425, 21698, 20700 Stella L. Hargrove, Judge



                           No. M2017-00248-CCA-R3-CD


Devon Alvon Wilson (“the Defendant”) appeals the Maury County Circuit Court’s order
revoking his probation and imposing his sixteen-year sentence for three counts of
possession of more than 0.5 grams of cocaine with intent to sell, three counts of
possession of marijuana with intent to sell, possession of a Schedule III substance with
intent to sell, and evading arrest. On appeal, the Defendant acknowledges that he
violated probation but argues that the trial court should have ordered only a partial
revocation. Discerning no error, we affirm the judgment of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Claudia Jack, District Public Defender; Michelle VanDeRee, Assistant District Public
Defender (on appeal and at trial); Brandon E. White (on appeal), Columbia, Tennessee,
for the appellant, Devon Alvon Wilson.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Dan Runde, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

                       I. Factual and Procedural Background

             In September 2014, the Defendant entered into a global plea agreement in
relation to charges filed against him in three different cases. The agreement is
summarized as follows:
 Case No.         Count                 Offense                                   Sentence
                              Possession of more than 0.5             8 years on probation; concurrent
   21698             1        grams of cocaine with intent            with counts 2, 3, and 4,
                              to sell                                 consecutive to count 6
                              Possession of more than 0.5             8 years on probation; concurrent
   21698             2        grams of cocaine with intent            with counts 1, 3, and 4,
                              to sell                                 consecutive to count 6
                                                                      2 years on probation; concurrent
                              Possession of marijuana with
   21698             3                                                with counts 1, 2, and 4,
                              intent to sell
                                                                      consecutive to count 6
                                                                      2 years on probation; concurrent
                              Possession of a Schedule III
   21698             4                                                with counts 1, 2, and 3,
                              substance with intent to sell
                                                                      consecutive to count 6
                              Possession of a firearm
   21698             6        during the commission of a              3 years in custody, served 100%
                              dangerous felony
                              Possession of marijuana with            2 years on probation;
   20425             1
                              intent to sell                          consecutive to case no. 21698

                                                                      2 years on probation; concurrent
   20425             2        Evading Arrest
                                                                      with count 1
                              Possession of more than 0.5             8 years on probation; concurrent
   20700             1        grams of cocaine with intent            with case no. 20425, consecutive
                              to sell                                 to case no. 21698
                              Possession of marijuana with            2 years on probation; concurrent
   20700             2
                              intent to sell                          with count 1

These convictions resulted in an effective nineteen-year sentence, composed of a three-
year sentence in custody, followed by two consecutive eight-year probationary sentences.

       On January 28, 2015, the Defendant was arrested after selling an undercover
police officer a bag of white powder.1 A probation violation warrant was issued for the
Defendant on February 24, 2015, alleging that the Defendant had violated his probation
based on the January 28 arrest, his failure to report to his probation officer, and failure to
pay fines and supervision fees. At a probation revocation hearing, the State called two
witnesses, Felicia Helton, a probation officer, and Gerrod Shirey, an Investigator for the
Pulaski Police Department who was involved in the investigation that led to the

        1
         The officer first believed the white bag of powder to be cocaine, but further testing revealed that the
powder was actually flour.

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Defendant’s January 28 arrest. Ms. Helton testified about the various violations included
in the probation revocation warrant. Ms. Helton testified that the warrant included four
grounds for prospective revocation. Ms. Helton testified that the warrant alleged that
Defendant had been arrested on January 28, 2015, which violated rule one of the
Defendant’s probation agreement; the Defendant failed to notify his probation officer of
his change of residence, which violated rule five; the Defendant had failed to contact his
probation officer since February 6, 2015, in violation of rule six; and the Defendant had
stopped making payments on his court fines and supervision fee arrearage in February of
2013, in violation of rule nine. Ms. Helton testified that the Defendant’s probation
officer had attempted to contact the Defendant using the information he provided, but
another resident of the Pulaski address told the probation officer that the Defendant was
no longer a resident of that address. Ms. Helton also testified that the Defendant ceased
communications with his probation officer after he posted bond in relation to the January
28 arrest and that his probation officer considered the Defendant “to have absconded
from probation supervision.” Ms. Helton testified that the Defendant’s case was turned
over to the absconding unit in Nashville, where the absconding unit would work with
local and federal law enforcement to locate the Defendant.

       Investigator Shirey testified about the investigation that led to the Defendant’s
January 28 arrest. Investigator Shirey received information from the Drug Task Force
that the Defendant wanted to engage in a drug transaction with one of the department’s
undercover agents. Investigator Shirey assisted in the controlled cocaine transaction
between the undercover agent and the Defendant, where the Defendant sold the agent a
bag of white powder. According to Investigator Shirey’s testimony, the Defendant
waited for the undercover agent in the bathroom of an Exxon gas station in Pulaski,
Tennessee, where the transaction occurred. Shortly after the Defendant emerged from the
bathroom, he entered his car and drove a short distance where he was stopped and
arrested by waiting officers. Investigator Shirey testified that the officers searched the
Defendant and found the marked money the undercover agent used in the transaction. On
cross-examination, Investigator Shirey testified that, while he did not know what the
substance was, the white powder that the Defendant gave the undercover agent was not
cocaine.

       The trial court determined that the Defendant violated Rule 1 by being arrested for
possession of cocaine for resale, Rule 5 by failing to notify his probation officer of a
change in his residence, and Rule 6 by failing to report to his probation officer as
required. The trial court noted that the Defendant had multiple drug offenses – calling
them “bothersome” – before it revoked the Defendant’s probation and ordered the
Defendant to serve his sixteen-year sentence in confinement. This timely appeal
followed.




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                                        II. Analysis

       On appeal, the Defendant argues that the trial court abused its discretion by
ordering him to serve his full sixteen-year sentence instead of ordering him to serve either
a one-year partial revocation in confinement or only the eight-year sentence ordered in
case number 21698. The State argues that the trial court did not abuse its discretion
because ordering a defendant to serve his sentence is one of the options available to a trial
court pursuant to statute. We agree with the State.

       Upon a finding by a preponderance of the evidence that a defendant has violated a
condition of his or her probation, a trial court may revoke probation and order the
imposition of the original sentence. Tenn. Code Ann. §§ 40-35-310, -311 (2017); State v.
Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991)). We will not disturb the trial court’s ruling
on appeal absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554-55 (Tenn.
2001) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse
of discretion, a defendant must show that there is “no substantial evidence” in the record
to support the trial court’s determination that a violation of probation has occurred. Id.
Proof of a violation does not need to be established beyond a reasonable doubt. State v.
Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984) (citing Roberts v. State, 584
S.W.2d 242, 243 (Tenn. Crim. App. 1979)). Rather, if a trial court finds by a
preponderance of the evidence that a violation has occurred, the court may revoke the
probation and suspension of the sentence. Tenn. Code Ann. § 40-35-311(e) (2017).

       In his brief, the Defendant does not dispute the fact that the trial court was
presented with substantial evidence that showed that he violated his probation by a
preponderance of the evidence. In any event, the testimony presented at the probation
revocation hearing provided the trial court with substantial evidence to determine that the
Defendant violated three rules of his probation.

       Once a trial court has determined that a violation of probation has occurred, the
court has the discretionary authority to order the defendant to: (1) incarceration; (2) have
the defendant serve the original sentence; (3) modify the conditions of the defendant’s
probation; or (4) extend the defendant’s probation period for up to two additional years.
See Tenn. Code Ann. §§ 40-35-308(a), -308(c), -310, -311(e); State v. Hunter, 1 S.W.3d
643, 648 (Tenn. 1999). The determination of the proper consequences of the probation
violation embodies a separate exercise of discretion. State v. Reams, 265 S.W.3d 423,
430 (Tenn. Crim. App. 2007).

       Citing to Tennessee Code Annotated section 40-35-102(5), the Defendant argues
that the trial court abused its discretion when it fully revoked the Defendant’s probation
and ordered him to serve the remainder of his sentence in confinement. That statute
recognizes that “state prison capacities and the funds to build and maintain them are

                                            -4-
limited[.]” Tenn. Code Ann. § 40-35-102(5). According to the statute, “convicted felons
committing the most severe offenses, possessing criminal histories evincing a clear
disregard for the laws and morals of society and evincing failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving incarceration[.]”
Id. In this case, the Defendant had been convicted of multiple drug offenses, for which
the Defendant originally received probation. The Defendant’s arrest on January 28 was
for an additional drug offense. The trial court called these drug offenses “bothersome”
before it revoked the Defendant’s probation and ordered him to serve his remaining
sentence. Because the trial court acted under its discretionary authority, as authorized by
statute, to order the Defendant to serve his remaining sixteen-year sentence in
confinement, the trial court did not abuse its discretion. The Defendant is not entitled to
relief on this ground.

                                      III. Conclusion

       For the aforementioned reasons, the judgment of the trial court is affirmed.


                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




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