        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 11, 2015

              STATE OF TENNESSEE v. DAVID MUANGKHOT

                 Appeal from the Circuit Court for Bedford County
                  Nos. 15656, 15657   Franklin L. Russell, Judge




               No. M2014-01029-CCA-R3-CD - Filed March 19, 2015




In January 2005, David Muangkhot (“the Defendant”) pleaded guilty to one count of sale of
a Schedule I controlled substance and one count of possession of a Schedule I controlled
substance with the intent to sell. Pursuant to a plea agreement, the trial court imposed
concurrent, 10-year sentences and ordered the Defendant to serve his sentence in
confinement. Following the completion of a boot camp program, the Defendant was released
and placed on supervised probation for the remainder of his sentence pursuant to Tennessee
Code Annotated section 40-20-206. In April 2014, the trial court issued a violation of
probation warrant and, following a hearing, revoked the Defendant’s probation and imposed
the Defendant’s original sentence. On appeal, the Defendant argues that the trial court
abused its discretion by ordering him to serve his sentence. Upon review, we affirm the
judgment of the trial court.

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

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and T IMOTHY L. E ASTER, J., joined.

Donna L. Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant
District Public Defender, Shelbyville, Tennessee, for the appellant, David Muangkhot.

Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Robert Carter, District Attorney General; and Richard Aaron Cawley, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                           I. Facts

        In November 2004, the Bedford County Grand Jury indicted the Defendant for one
count of sale of Schedule I controlled substance and one count of delivery of a Schedule I
controlled substance in case number 15656. In case number 15657, the grand jury indicted
the Defendant for one count each of possession of a Schedule I controlled substance with
intent to sell, possession of a Schedule I controlled substance with intent to deliver, and
unlawful carrying of a weapon. On January 20, 2005, the Defendant pleaded guilty, as a
Range I standard offender, to one count of sale of a Schedule I controlled substance and one
count of possession of a Schedule I controlled substance with intent to sell. The Defendant
received concurrent sentences of 10 years at 30% to serve on both counts. On August 16,
2005, the Defendant completed a boot camp program and was placed on supervised
probation for the remainder of his sentence.

       On April 15, 2014, the trial court issued a violation of probation warrant based upon
allegations that the Defendant had tested positive for marijuana and cocaine. At a hearing
conducted on May 16, 2014, the Defendant admitted that he had violated the terms of his
probation. The Defendant testified that he lived with his parents in Murfreesboro. He was
engaged to be married and was working two jobs at the time of his arrest on the violation
warrant. The Defendant testified that he had no prior violations of probation. He had
reported to his probation officer as required, paid all fines, and passed all other drug screens
given to him since 2005. The Defendant further explained that, other than the underlying
convictions, he had no other criminal history.

        Regarding the violation of probation, the Defendant testified that he smoked a
marijuana joint while attending a Super Bowl party on February 3, 2014. He explained that
he did not know the joint was laced with cocaine until he inhaled. As an explanation for his
use of drugs, the Defendant stated that he was under a lot of stress because he had lost his
sister that year and because his father was sick. The Defendant stated that he only smoked
one joint and he had thought that he could “beat the system.”

          Following the Defendant’s testimony, defense counsel argued that there was no
excuse for the Defendant’s behavior but asked the trial court to “be gracious and consider
that . . . this was his first violation. And other than this one positive drug screen, he appears
to have done quite well on probation . . . .” At the conclusion of the hearing, the trial court
determined that the Defendant had violated the terms of his probation, and it revoked
probation and ordered the Defendant to serve his sentence. This timely appeal followed.



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                                         II. Analysis

       On appeal, the Defendant acknowledges that he violated the terms of his probation
by testing positive for controlled substances, but he argues that the trial court improperly
required him to serve the balance of his sentence. He asserts that the trial court should have
imposed a sentence of split confinement followed by inpatient drug rehabilitation. The State
responds that the trial court did not abuse its discretion by revoking the Defendant’s
probation and ordering his sentence into effect. 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 judgment. Tenn. Code Ann. §§ 40-35-310, -311 (2014); 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 (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). 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) (2014).

        Upon finding a violation, the trial court is vested with the statutory authority to
“revoke the probation and suspension of sentence and cause the defendant to commence the
execution of the judgment as originally entered.” Id. Furthermore, when probation is
revoked, “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.” Tenn. Code Ann. § 40-35-310. The
trial court retains the discretionary authority to order the defendant to serve the original
sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

       Upon review, we conclude that the trial court did not abuse its discretion by revoking
the Defendant’s probation and ordering the Defendant to serve his sentence. The Defendant
tested positive for using marijuana and cocaine and admitted that he was guilty of violating
his probation. Indeed, the Defendant does not challenge the revocation of his probation on
appeal. The Defendant’s sole issue concerns whether the trial court erred by failing to grant
him another alternative sentence after revoking his probation. He contends that the sentence
imposed by the trial court was “not deserved for the committed infraction of the rules of
probation” and was not the “least severe measure necessary” under the purposes and
principles of sentencing. See Tenn. Code Ann. § 40-35-103(2), (4) (2014).

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       However, as we have stated, it was within the trial court’s authority to order the
Defendant to serve his original sentence upon revoking probation. See Tenn. Code Ann. §§
40-35-310 and -311(e); Mitchell, 810 S.W.2d at 735. Moreover, “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. Feb. 10, 1999). Finally, when the Defendant entered his guilty plea
agreement, he accepted an effective 10-year sentence to serve. The Defendant cannot now
complain that his original, agreed-upon sentence was not in keeping with the purposes and
principles of sentencing. The Defendant is not entitled to relief.

                                    III. Conclusion

      For the aforementioned reasons, we affirm the judgment of the trial court.




                                                 _________________________________
                                                 ROBERT L. HOLLOWAY, JR., JUDGE




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