                                                                                         09/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville July 24, 2018

               STATE OF TENNESSEE v. DURWIN L. RUCKER

                Appeal from the Circuit Court for Cheatham County
                 Nos. 18024, 18025 Suzanne Lockert-Mash, Judge
                     ___________________________________

                           No. M2017-02536-CCA-R3-CD
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The Appellant, Durwin L. Rucker, pled guilty in the Cheatham County Circuit Court to
violating an order declaring him to be a motor vehicle habitual offender and driving
under the influence (DUI) and received an effective four-year sentence to be served as
sixty days in jail and the remainder on supervised probation. Subsequently, the trial court
revoked his probation. On appeal, the Appellant contends that the trial court erred by
ordering that he serve his effective four-year sentence in confinement. Based upon the
record and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and J. ROSS DYER, JJ., joined.

Mitchell B. Dugan, Ashland City, Tennessee, for the appellant, Durwin L. Rucker.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Wendell Ray Crouch, Jr., District Attorney General; and Margaret
Sagi, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

        In September 2016, the Cheatham County Grand Jury indicted the Appellant in
case number 18024 for violating an order declaring him to be a motor vehicle habitual
offender, failure to provide proof of insurance, and speeding and in case number 18025
for DUI, fifth offense, DUI per se, fifth offense, driving on a revoked license, fourth
offense, violating an order declaring him to be a motor vehicle habitual offender, and
failing to provide proof of insurance. The indictments alleged that the offenses in case
number 18024 occurred on March 8, 2016, and that the offenses in case number 18025
occurred on June 20, 2016.

       The State filed a written notice that it was going to use the following convictions
to impeach the Appellant if he testified at trial and seek sentencing as a Range III
offender: Forgery over $1,000, a Class D felony, in June 2005; identity theft, a Class D
felony, in June 2005; theft over $1,000, a Class D felony, in June 2005; theft over $1,000,
a Class D felony, in March 2007; aggravated assault, a Class C felony, in August 2007;
statutory rape, a Class E felony, in January 2012; and DUI, fourth offense, a Class E
felony, in January 2014. On July 11, 2017, the Appellant pled guilty in case number
18024 to violating an order declaring him to be a motor vehicle habitual offender, a Class
E felony, and received a four-year sentence as a Range II, multiple offender. The
Appellant pled guilty in case number 18025 to DUI per se, first offense, a Class A
misdemeanor, and received a concurrent sentence of eleven months, twenty-nine days.
The Appellant was to serve the sentences as sixty days in jail on consecutive weekends
with the remainder to be served on supervised probation. The parties agreed that the
Appellant would start serving his jail time on July 20, 2017. The State dismissed the
remaining charges.

       Just two months later, on September 11, 2017, the Appellant’s probation
supervisor filed a probation violation report, alleging that the Appellant violated the rules
of probation by failing to report to her in August 2017, by failing to report to jail since
July 27, and by being charged in Cheatham County with failure to appear. A probation
violation warrant was filed and executed that same day.

       At the outset of the Appellant’s probation violation hearing, defense counsel
advised the trial court that “[w]e have a disposition.” Defense counsel informed the court
that the Appellant was “going to plead true to a violation” and serve ninety days in
confinement followed by community corrections. The trial court noted that “his violation
says that he quit reporting and then he didn’t go to serve his 60 days” and asked the
parties if they thought the Appellant was “going to report.” The State responded, “Well,
Your Honor, we’ll find out very quickly.” The trial court expressed concern and asked
the Appellant’s probation supervisor, who was in the courtroom, if she had agreed to
“this plea.” The supervisor indicated that she had not agreed, so the trial court refused to
accept the sentence without a hearing.

        Barbara Stevenson, the Appellant’s probation supervisor, testified that she began
supervising the Appellant on the day of his guilty pleas, July 11, 2017, and that he was
supposed to serve sixty days in jail on weekends. On July 20, the Appellant showed up at
the jail for his “intake.” He also reported to jail on the weekend of July 25 and reported

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to her on July 18. She said, though, that “I have not seen him since.” The Appellant did
not report to jail or Stevenson in August.

       On cross-examination, Stevenson acknowledged that the Appellant lived in
Wilson County and that he requested to transfer his probation from Cheatham to Wilson
County. However, she told him that he would have to report in Cheatham County until
he was accepted in Wilson County. She said it was not possible the Appellant was
confused about where he was to serve his jail time or where he was to report to his
probation officer. After the Appellant failed to report to jail in Cheatham County, he was
charged with failure to appear. The charge was still pending at the time of the probation
revocation hearing.

        The Appellant testified that when he agreed to plead guilty, his attorney told him
that he would be able to transfer the service of his jail weekends to Wilson County, where
he lived. However, after he entered the pleas, “everything got changed,” and the
Appellant was told that “it would be up to Wilson County to take him.” The Appellant
reported to Barbara Stevenson and told her that he was “misinformed.” He said that he
told her “from the beginning” he would not be able to get from Wilson County to
Cheatham County to serve his jail time and that she “sent [him] to Clarksville” to serve
his jail time. The Appellant found a way to get to Clarksville for his intake. However,
his sixty-eight-year-old mother lived in Nashville and was his only means of
transportation to Clarksville.

       The Appellant testified that he called the Cheatham County Court Clerk and told
the clerk that he would “not be able to make the weekends” and that he wanted to serve
his sixty days at one time and “get it over with.” The clerk told the Appellant that he
could not do that and that a warrant for his arrest would be issued. The Appellant tried to
contact Stevenson but was unable to get in touch with her. The Appellant said he thought
he was “doing right” by trying to serve the sixty days at one time. While he was waiting
for an arrest warrant to be issued, he went to rehabilitation at Recovery in Christ in
Lebanon and paid for his treatment out of his own pocket. He said that he did not use
drugs, that he was a full-time student at the University of Phoenix, and that he had a 3.5
grade point average. Since the Appellant’s arrest on the probation violation, he had
served eighty-nine days in jail in addition to the four days he served on two weekends.

        On cross-examination, the Appellant testified that he was a sophomore in college
and acknowledged that he did not go to the probation office to speak with Stevenson. He
said, though, that he did not have transportation to her office and that he telephoned her
and left a voicemail. On redirect examination, defense counsel asked the Appellant if he
would report to jail on weekends if the trial court gave him an opportunity “to get back
out,” and the Appellant answered,
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              Yes, sir, I would. I will -- I know without a shadow of a
              doubt that I’m not gonna have a problem now reporting to my
              probation officer and doing things I have to. I’m just trying
              to get back out here and continue with my life, and not mess
              up my school, and not mess up what I have going on out
              there.

       The trial court found that the Appellant reported to his probation supervisor only
one time and to jail only two times and that he had violated his probation. The trial court
revoked the Appellant’s probation and ordered that he serve his effective sentence in
confinement.

                                       II. Analysis

       On appeal, the Appellant acknowledges that he violated his probation but argues
that the trial court “should have reinstated his period of probation with additional safe
guards in place to assure his compliance or transferred him to the Community
Corrections Program.” We conclude that the trial court properly ordered that the
Appellant serve his sentence in confinement.

       Upon finding by a preponderance of the evidence that the appellant has violated
the terms of his probation, a trial court is authorized to order an appellant to serve the
balance of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310, -
311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests in
the sound discretion of the trial court and will not be overturned by this court absent an
abuse of that discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995);
see State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013) (concluding that abuse of
discretion with a presumption of reasonableness is the appropriate standard of appellate
review for all sentencing decisions). “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 Appellant acknowledges that he violated his probation. Therefore, the trial
court did not abuse its discretion by revoking his probation. Moreover, this court has
repeatedly cautioned that “an accused, already on probation, is not entitled to a second
grant of probation or another form of alternative sentencing.” State v. Jeffrey A.
Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. at
Nashville, Feb. 10, 1999); see State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-
CD, 2002 WL 242351, at *2 (Tenn. Crim. App. at Nashville, Feb. 11, 2002).
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Accordingly, the trial court properly ordered that the Appellant serve his effective four-
year sentence in confinement.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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