        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 9, 2014

      STATE OF TENNESSEE v. CONCETTA LONG aka CONCETTA
                           WALTON

                Appeal from the Circuit Court for Rutherford County
                        No. F-63059A     David Bragg, Judge


                No. M2014-00564-CCA-R3-CD - Filed October 3, 2014


The defendant appeals the order of the Rutherford County Circuit Court revoking her
probation and ordering her to serve the balance of her sentence in confinement. In this
appeal, she argues that the trial court erred by ordering her to serve the balance of her
sentence. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and T IMOTHY L. E ASTER, JJ., joined.

Russell N. Perkins, Assistant District Public Defender, for the appellant, Concetta Long aka
Concetta Walton.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; William Whitesell, District Attorney General; and Jennings Jones, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On June 25, 2009, the defendant pleaded guilty to two counts of robbery in
exchange for an effective sentence of five years to be served on probation. As a condition
of her probation and memorialized on the judgment forms, the defendant agreed “on the 1st
violation to serve the entire sentence.” The defendant also agreed to enroll in classes toward
taking the General Educational Development (“GED”) test on or before February 1, 2011.
On November 22, 2013, a probation violation warrant issued alleging that the defendant had
violated the terms of her probation by failing to maintain lawful employment, by failing to
report to her probation officer at any time after August 20, 2013, by failing to pay required
probation fees and court costs, and by failing to obtain a GED certificate.

               At the February 13, 2014 revocation hearing, the defendant agreed that she had
violated the terms of her probation and asked the trial court to sentence her. The defendant
acknowledged that she failed to report to her probation officer after August 20, 2013, that
she had failed to verify and maintain employment, had failed to obtain a GED certificate, and
had failed to pay court costs and probation fees as required. Explaining the failure to obtain
a GED certificate, the defendant said that she was “on Putnam County’s list” but she had
been unable to take the test because she was incarcerated. She blamed her failure to report
in August on her failure to “make it clear with [her] grandmother soon enough to have a
ride.” She said that she did telephone her probation officer to let him know that she would
be unable to report in August, but her probation officer told her that she “had to come.” She
had no explanation for her failure to report in September. She testified that on October 6, she
“was in a serious domestic” situation and that she “ended up going to a safe house in Putnam
County.” She acknowledged that she did not inform her probation officer of her whereabouts
but claimed that she had intended to mail proof of her placement in the safe house to her
probation officer. Before she could mail the items, however, her parents telephoned and told
her that officers had gone to her grandmother’s house looking for her. At that point, she
telephoned “the detective and let him come get” her at the safe house on November 22, 2013.
She had been incarcerated since that time.

               The defendant admitted that the violation warrant at issue was her second
violation, but she said, “I have a little problem with that also. My first violation was because
of a charge I picked up in Smyrna that I ended up beating. . . . So, I wasn’t sure if that was
still considered a first violation.” She conceded that she had pleaded guilty to the first
violation on November 23, 2010, and that she had served four days’ incarceration on
consecutive weekends as a result of the previous revocation. The defendant testified that she
had taken “normal classes” before her previous probation violation but that she had “just
ended up quitting again.” She acknowledged having agreed on the occasion of the previous
revocation that she would serve her entire sentence upon any subsequent violation.

               The defendant expressed interest in a community corrections placement. She
said that she had spoken with her grandmother and that her grandmother had agreed to allow
the defendant and the defendant’s daughter to live with her.

               During cross-examination, the defendant conceded that as a part of her original
plea agreement, she agreed that if she violated her probation she would be required to
“flatten” the effective five-year sentence. The defendant said that although she was at the
domestic violence shelter for “[a]bout a month,” she had failed to report to her probation
officer for three months.

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               After the defendant’s grandmother, Henrietta Conley, offered a number of
unsworn statements from the gallery, the State agreed to stipulate that the defendant could
live with her grandmother if her probation was reinstated.

              At the conclusion of the hearing, the trial court, noting that the defendant had
admitted that she violated the terms of her probation and that she had agreed to serve her
entire sentence upon revocation, revoked the defendant’s probation and ordered that she
serve the balance of her five-year sentence less any credits for time spent in incarceration.

               In this appeal, the defendant contends that the trial court erred by ordering her
to serve the balance of her sentence in confinement and argues that a community corrections
placement would have been a more appropriate disposition.

                The accepted appellate standard of review of a probation revocation is abuse
of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[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
1989 Sentencing Act expresses a burden of proof for revocation cases: “If the trial judge
finds that the defendant has violated the conditions of probation and suspension by a
preponderance of the evidence, the trial judge shall have the right by order duly entered upon
the minutes of the court to revoke the probation and suspension of sentence. . . .” T.C.A. §
40-35-311(e)(1).

               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
“[c]ause the defendant to commence the execution of the judgment as originally entered, or
otherwise in accordance with § 40-35-310.” Id.; 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 defendant acknowledged having violated the terms of her probation by
failing to report, by failing to pay court costs and probation fees, by failing to obtain a GED
certificate, and by failing to verify her employment. Thus, the defendant conceded an
adequate basis for a finding that she had violated the terms of her probation. See State v.
Neal Levone Armour, No. E2003-02907-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App.,
Knoxville, Sept. 9, 2004) (citations omitted). Perhaps the State phrases it best when saying
that the defendant “has squandered her privilege of probation by her own actions and

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inactions.” The defendant, granted the extreme largesse of a five-year, probationary sentence
when facing a potential sentence of 24 years’ incarceration, violated the terms of her
probation on more than one occasion. The trial court acted well within its discretion by
revoking her probation and ordering her to serve the balance of her sentence in confinement.

              Accordingly, the judgment of the trial court is affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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