        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 28, 2010

             STATE OF TENNESSEE v. VINCENT BYRON ROSE

                 Appeal from the Criminal Court for Sullivan County
                        No. S52,950    R. Jerry Beck, Judge




                  No. E2009-02396-CCA-R3-CD - Filed June 10, 2010


The defendant, Vincent Byron Rose, appeals from the trial court’s order revoking his
probation and ordering that he serve his sentence in confinement. Discerning no error in the
judgment of the trial court, we affirm.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and J.C. M CL IN, J., joined.

Terry Jordan, Assistant District Public Defender, for the appellant, Vincent Byron Rose.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Tara Trent, Assistant District
Attorney General Pro Tempore, for the appellee, State of Tennessee.

                                         OPINION

              On November 10, 2008, the defendant pleaded guilty in the Sullivan County
Criminal Court to assault and reckless endangerment in exchange for an effective sentence
of 11 months and 29 days to be served on probation. On April 29, 2009, a probation
violation warrant issued alleging that the defendant had violated the terms of his probation
by using alcohol, as established by his being charged with driving under the influence, and
by failing to complete court-ordered community service. On June 25, 2009, a second
probation violation warrant issued alleging that the defendant had violated the terms of his
probation by committing an assault and by failing to complete community service.

              At the probation revocation hearing, the State presented certified copies of the
defendant’s conviction judgments for assault and driving under the influence garnered after
he was placed on probation. In addition to these certified copies being placed into evidence,
defense counsel noted that the defendant was guilty of those offenses.

             Tennessee Board of Probation and Parole Officer Tim Trantham testified that
he had supervised the defendant’s probation since November 10, 2008, and that the
defendant had violated the terms of his probation by being charged with driving under the
influence and aggravated assault and by failing to complete any of the 120 hours of
community service ordered by the court. Mr. Trantham testified that the defendant was
employed at “the Robinette Company.”

              Mr. Trantham admitted during cross-examination that the defendant had
presented “medical information” regarding his inability to perform the community service
work but that he had not done so until October 20, 2009, well after the probation violation
warrants had been filed.

                The defendant testified that he lived in Bluff City with his mother, wife,
daughter, and son. He stated that he received his driving under the influence conviction after
he was stopped for speeding while he “was test driving a vehicle.” He said that he entered
an Alford guilty plea to assaulting his 17-year-old son as a lesser included offense of
aggravated assault in the general sessions court.1 The defendant claimed that his son had also
pleaded guilty to assaulting him and that he intended to file a petition for post-conviction
relief in that case.

               The defendant testified that he was the sole provider for his mother, wife,
daughter, and son, and that he would “lose [his] house for sure” if incarcerated. He said that
he needed surgery on his back and that both his wife and daughter needed surgery, too. The
defendant stated that medical insurance provided by his employer would cover the cost of the
surgeries but that he would lose his job if incarcerated for an extended period of time.

               Regarding his failure to perform community service, the defendant claimed that
he had provided his 2007 medical records to Mr. Trantham. He described his medical
problems, “Well, of course, I’ve got bad knees. But I’ve got a – a disease that affects my
spinal cord. I’m supposed to have the C5 disc removed and a donor bone, you know, put
back in it’s place; and the . . . 3, 4, 5, 6, and 7 fused back together.” The defendant testified
that he “was under the assumption that . . . that part would be waived as far as . . . the


        1
          In North Carolina v. Alford, 400 U.S. 25, 37 (1970), the United States Supreme Court held that a
criminal defendant may enter a guilty plea without admitting guilt if the defendant intelligently concludes
that his best interests would be served by a plea of guilty.

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community service.” He claimed that Mr. Trantham “never brought up” the issue of his
performing community service during his monthly meetings and that “it just popped up after
[he] got this DUI.”

              The defendant asked the court to “give him a chance” and stated that he did not
want his family “to have to suffer for . . . another mistake that [he] made.” He emphasized
that he would lose his job if incarcerated and that he would lose his home if he lost his job.
He asked the court to allow him to serve some incarceration on the weekends so that he could
maintain his employment.

              During cross-examination, the defendant said that he did not know that driving
after taking Lortab would be driving under the influence. As to the assault of his son, the
defendant said, “[H]e assaulted me first.” The defendant admitted that even with his medical
problems he maintained full-time employment as a maintenance mechanic at the Robinette
Company.

               The defendant’s wife, Ann Yvonne Rose, testified that she and the defendant
lived with their son and daughter and the defendant’s mother. She said that the defendant’s
income is the only financial support for the family. She stated that should the defendant lose
his job, they would lose their home and that their daughter would not be able to attend
college. She stated she did not know where she and the children would go because they had
no family in Tennessee and she was “not allowed to leave the state of Tennessee.” She said
that the defendant’s mother “draws Social Security” but does not help with the household
expenses.

              At the conclusion of the hearing, the trial court ruled that the defendant violated
the terms and conditions of his probation by being convicted of driving under the influence
and assault. The court concluded that the State had failed to establish that the defendant had
violated his probation by failing to complete community service. The court ruled that the
defendant would be required to serve his 11-month and 29-day sentence in confinement.

              We consider the defendant’s claims with a few well-settled principles in mind.
Upon a finding by a preponderance of the evidence that the defendant has violated the
conditions of probation, the trial court may revoke the defendant’s probation and “cause the
defendant to commence the execution of the judgment as originally entered, or otherwise in
accordance with § 40-35-310.” T.C.A. § 40-35-311(e) (2006); see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the original judgment so
rendered by the trial judge shall be in full force and effect from the date of the revocation of
such suspension.” Id. § 40-35-310. The revoking court may extend the period of probation
supervision for a period not to exceed two years. Id. § 40-35-308(c).

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                The decision to revoke probation rests within the sound discretion of the trial
court, and this court will not disturb the trial court’s ruling in the absence of a showing that
the trial court abused that discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001)
(citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). “In order for a reviewing court
to be warranted in finding an abuse of discretion in a probation revocation case, it must be
established that the record contains no substantial evidence to support the conclusion of the
trial judge that a violation of the conditions of probation has occurred.” Harkins, 811 S.W.2d
at 82 (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d
395, 398 (Tenn. Crim. App. 1980)).

               In this case, the defendant admitted that he violated the terms of his probation
by driving while intoxicated and assaulting his 17-year-old son. On appeal, he again
concedes that he violated his probation but argues that the trial court erred by ordering that
he serve his sentence in confinement. The defendant essentially asks this court to reverse the
imposition of a fully incarcerative sentence on the basis of the hardships that incarceration
will pose on the defendant’s family. Although we comprehend the defendant’s plight, we
are without authority to reverse the judgment of the trial court in light of the defendant’s
clear violations of his probationary terms. In consequence, we affirm the judgment of the
trial court.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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