        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned On Briefs June 17, 2014

          STATE OF TENNESSEE v. ROBERT KING VAUGHN, JR.

              Appeal from the Circuit Court for Rutherford County
                 Nos. F-62438; F-68086 David Bragg, Judge



                No. M2013-02099-CCA-R3-CD - Filed July 3, 2014



Appellant, Robert King Vaughn, Jr., pled guilty to aggravated burglary and theft in case
number F-64238 and aggravated burglary in case number F-68086 in Rutherford County
Circuit Court. As a result, in case number F-64238, Appellant was ordered to serve 90 days
in incarceration and the remainder of a four-year sentence on probation. In case number F-
68086, Appellant was sentenced to thirteen years. The sentence was suspended and
Appellant was ordered to serve the term on Community Corrections. A warrant was filed
against Appellant for a violation of the terms of the Community Corrections sentence and
probation. After a hearing, the trial court ordered Appellant to serve the remainder of the
four-year sentence and thirteen-year sentence in incarceration. Appellant appeals. After a
review of the record and applicable authorities, we affirm the judgments of the trial court but
remand the matter to the trial court for correction of the order revoking Appellant’s
Community Corrections sentence in case number F-68086 to reflect a violation of
Community Corrections rather than probation.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed
                                  and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.

Gerald L. Melton, District Public Defender; Russell N. (Rusty) Perkins, Assistant Public
Defender, for the appellant, Robert King Vaughn, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; William Whitesell, District Attorney General; and Shawn
Puckett, Assistant District Attorney General, for the appellee, State of Tennessee.
                                                   OPINION

                                             Factual Background

       Appellant pled guilty on April 16, 2010, to aggravated burglary and theft of property
over $1,000 in case number F-64238 in Rutherford County. The trial court sentenced
Appellant to four years on each count, to be served concurrently. The trial court further
ordered Appellant to serve 90 days in incarceration and the balance of the sentence on
probation. On June 14, 2012, Appellant was found guilty of violating probation. The trial
court reinstated his original four-year sentence, and ordered Appellant to serve another 90
days in incarceration prior to being reinstated to probation for the duration of the sentence.

       On May 16, 2013, Appellant pled guilty to aggravated burglary in case number F-
68086. As a result, he was sentenced to thirteen years as a Persistent Offender. The trial
court ordered Appellant to serve the sentence on Community Corrections. In June of that
same year, the trial court issued a warrant indicating that Appellant violated the conditions
of Community Corrections, citing both case numbers F-64238 and F-68086.1 In particular,
the affidavit in support of the warrant indicated that Appellant failed to: (1) report on a
regular basis to the probation officer; (2) carry out the instructions of the probation officer
and make truthful reports to the probation officer; (3) refrain from using intoxicants of any
kind, or from using or possessing any controlled substance or mind altering drug, except
pursuant to a licensed doctor’s medical prescription; (4) follow the recommendations
regarding the Community Corrections sentence; and (5) submit to a risk assessment for
substance abuse. To support the allegations, the affidavit indicated that Appellant, among
other things, failed a drug screen and admitted to using cocaine.

        The trial court held a hearing on the Community Corrections and probation violations.
At the hearing, Kelly Sanders, a Community Corrections case officer, testified that she
supervised Appellant on Community Corrections beginning on May 16, 2013. By June 17,
2013, Appellant had violated the terms of Community Corrections by failing to report. Ms.
Sanders testified that Appellant attempted to report on several occasions but that he came in
to the office on either non-reporting days or after hours. Appellant successfully reported a
total of three times. He missed one report date. Additionally, Appellant did not schedule his
alcohol and drug assessment as instructed and failed a drug screening testing positive for
cocaine. Appellant did not follow any of the recommendations of the Community
Corrections program.

        1
          The warrant alleged that Appellant had committed a violation of “Community Corrections” with respect to his
sentences for aggravated burglary and theft of property, citing case numbers F-64238 and F-68086. W hen looking at
the judgments, however, it appears that Appellant was sentenced to an alternative sentence of probation in case number
F-64238 and an alternative sentence of Community Corrections in case number F-68086.

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       Ms. Sanders acknowledged that Appellant had some mental disabilities but recalled
that Appellant provided a letter from the Guidance Center indicating that he was competent
enough to comply with the terms and conditions of Community Corrections. Ms. Sanders
was aware of Appellant’s drug problem and expressed the need for Appellant’s assessment
in order for Appellant to receive recommendations for treatment. Ms. Sanders stated that
Appellant’s last visit was in June, when he failed a drug screen and admitted to cocaine use.

       Appellant testified at the hearing. At the time of the alleged violation, Appellant was
on house arrest. He had to ask for permission prior to leaving the house; Ms. Sanders did not
give him permission to leave the house on the day that he used cocaine. He explained that
he was “legally disabled” because he suffered from paranoid schizophrenia, depression,
anxiety, and obsessive compulsive disorder. Appellant takes multiple medications, including
Zyprexa. Appellant insisted that his medication causes memory problems and prevented him
from recognizing Ms. Sanders. Appellant admitted that he was addicted to cocaine and
remained sober for about one month before he “relapsed.” Appellant stated that he had met
with Ms. Sanders until the relapse and then “everything went downhill from there.” He
denied intentionally missing appointments, acknowledged his indiscretions, and signed a
document stating that he used cocaine while on Community Corrections. Appellant also
explained that he was new to Community Corrections and had violated the terms and
conditions before he even knew all the rules.

      At the conclusion of the hearing, the trial court made the following findings of fact
and conclusions of law:

              The Court finds based on [Appellant’s] testimony and on the other
       evidence submitted to the Court that [Appellant] has failed to comply with the
       terms of his Community Corrections plan by failing a drug screen, admitting
       that he’s used drugs while on Community Corrections, failure to follow the
       reporting instruction of his supervising officer by failing to report on those
       dates when he was requested to report.

               [Appellant] on his own behalf has testified he was trying to get used to
       it. It was difficult to get used to it. It was a new program. Different from
       programs he had been on before.

              The Court finds based on a review of the record that it has serious
       questions based on [Appellant’s] testimony, the testimony of Ms. Sanders as
       to whether or not [Appellant] could successfully complete any lengthy period
       of probation or Community Corrections based on his failure to comply with



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         any of those types of terms in the past and based on his prior record of
         conduct.

                 Therefore, the court would order that [Appellant] serve his sentence as
         imposed with any applicable credits. [Appellant] has said he would like to be
         able to provide care for his children. I’m hopeful that once he has served this
         sentence that he will have that opportunity. He will have these things behind
         him. And he won’t just continue to push this matter down the road. He will
         have the opportunity to get this chapter of his life closed so that he can start
         fresh.

                [Appellant], I appreciate your testimony. I appreciate your candor with
         the court and your honesty. I believe you testified honestly.

                  ....

               But it appears to me based on the record before the Court that
         [Appellant] is not a good candidate for release into the community.

       The trial court entered two orders after the hearing. One order reflected a violation
of probation2 in case number F-68086, indicating that Appellant should serve the sentence
originally imposed of thirteen years. The second order reflected a violation of probation in
case number F-64238, and ordered Appellant to serve the original sentence of four years.
After the revocations, Appellant filed a timely notice of appeal.

                                                   ANALYSIS

        On appeal, Appellant insists that the trial court abused its discretion in ordering
confinement for the full duration of the original sentence rather than ordering split
confinement or a suspended sentence. Specifically, Appellant argues that it was not a willful
failure to report on his behalf and that he was not on Community Corrections long enough
to receive the proper treatment for his drug addiction. The State disagrees, arguing that the
trial court did not abuse its discretion.

       In State v. Harkins, 811 S.W.2d 79 (Tenn. 1991), our supreme court ruled that a
community corrections sentence is so similar to a probationary sentence as to require the
application of the same standard of review. 811 S.W.2d at 82. A trial court may revoke


        2
           This should state that Appellant violated Community Corrections. On remand, the trial court should correct
this clerical error.

                                                        -4-
probation and order the imposition of the original sentence upon a finding by a
preponderance of the evidence that the person has violated a condition of probation. T.C.A.
§§ 40-35-310, -311. After finding a violation of probation and determining that probation
should be revoked, a trial judge can: (1) order the defendant to serve the sentence in
incarceration; (2) cause execution of the judgment as it was originally entered; or (3) extend
the probationary period for up to two years. See T.C.A. §§ 40-35-308(c) & -311(e); See also
State v. Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). The decision to revoke probation rests
within the sound discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.
Crim. App. 1991). Revocation of probation or Community Corrections is subject to an abuse
of discretion standard of review, rather than a de novo standard. Harkins, 811 S.W.2d at 82.
The evidence at the revocation hearing need only show that the trial court exercised a
conscientious and intelligent judgment in making its decision. State v. Leach, 914 S.W.2d
104, 106 (Tenn. Crim. App. 1995). An abuse of discretion is shown if the record is devoid
of substantial evidence to support the conclusion that a violation of probation has occurred.
Id.

       We have reviewed the record on appeal and find ample evidence to support the trial
court’s conclusion that a violation of probation and Community Corrections occurred.
Evidence was presented that Appellant failed a drug screen and failed to report to his
probation officer. Appellant admitted to the violations in his testimony, including the fact
that he used cocaine while on probation. Despite Appellant’s admitted disabilities, we
conclude that the trial court did not abuse its discretion in concluding that Appellant violated
the terms of his probation and Community Corrections sentences and should be incarcerated.
Appellant is not entitled to relief.

                                       CONCLUSION

      For the foregoing reasons, we affirm the revocation of probation. However, we
remand to the trial court for entry of a corrected order to reflect that in case number F-68086
Appellant violated Community Corrections, not probation.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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