        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 14, 2009

             STATE OF TENNESSEE v. STEPHANIE MAYFIELD

              Direct Appeal from the Circuit Court for Madison County
                   Nos. 02-702, 03-119   Donald H. Allen, Judge




               No. W2008-02534-CCA-R3-CD - Filed January 26, 2010


The defendant, Stephanie Mayfield, appeals the Madison County Circuit Court’s revocation
of her community corrections sentence and subsequent resentencing. The defendant, in two
separate cases, pled guilty to ten counts of Class D felony identity theft and received an
effective four-year sentence to be served in the Community Corrections Program. A
violation warrant was later issued, alleging that the defendant had violated the terms and
conditions of her agreement. Following a revocation hearing, the trial court ordered
revocation of the defendant’s community corrections sentence. After a sentencing hearing,
the court again imposed sentences of four years for each conviction but ordered that the two
sentences be served consecutively for an effective sentence of eight years. On appeal, the
defendant contends that the trial court erred in ordering revocation based upon the testimony
of the current case officer. The defendant further challenges the imposed sentence due to the
reliance on prior criminal charges and the imposition of consecutive sentencing. Following
review of the record, we find no error and affirm the judgments of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which A LAN E. G LENN,
J., joined. N ORMA M CG EE O GLE, J., concurred in results only.

A. Russell Larson, Jackson, Tennessee, for the appellant, Stephanie Mayfield.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                   Factual Background
       The underlying facts of the case, as recited in the presentence report, are as follows:

              According to Ms. Carolyn Crawford, on or about January 15th, 2002,
       [the defendant] stole Ms. Crawford’s Social Security number, using it and Ms.
       Crawford’s date of birth to obtain credit cards. After being notified by
       Discovery Card staff of the situation, she was able to block her credit accounts
       and thus prevented [the defendant] from use of said cards.

              On [March 17, 2002], Ms. Kimberly Stanfield notified the Sheriff’s
       Department that a co-worker, [the defendant], had used personal information
       to obtain credit cards, noting that there are at least [seven] unauthorized
       attempts which she never requested.

              On [September 27, 2002], Ms. Paulette Marshall came to the Police
       Department and reported her personal information had been used in order to
       apply for a Capital One credit card. The credit card company verified that a
       card had been issued and that several charges had been made to that account.
       [The defendant] became a suspect. Ms. Marshall reported they were co-
       workers and that [the defendant] did have access to her personal information.
       According to Capital One, total loss is $411.00.

        Subsequently, a Madison County grand jury returned indictments in two separate cases
charging the defendant. In Case No. 02-702, the defendant was charged with four counts of
identity theft, and, in Case No. 03-119, she was charged with six counts of identity theft.
Following the denial of her request for pretrial diversion, the defendant entered negotiated
guilty pleas to all counts. Pursuant to the agreement, she received a sentence of four years
for each count, with all counts to be served concurrently. The agreement further provided
that a hearing was to be held to determine if judicial diversion was appropriate and, if not,
that the sentence was to be suspended and served in the Community Corrections Program.
Following the sentencing hearing, judicial diversion was denied, and, in November 2003, the
defendant was sentenced to an effective four-year term, to be served on community
corrections.

        In April 2005, a violation warrant was issued, alleging that the defendant had violated
the terms and conditions of her community corrections agreement. Specifically, the report
charged that the defendant had violated the terms of her agreement by: (1) failing to report
to her probation officer since February 22, 2005; (2) remaining out past curfew on December
3, 2004, February 27, 2005, and April 10, 2005; (3) failing to pay costs and restitution, with
the last payment being February 17, 2005; (4) failing to obtain permission prior to changing
her address; (5) failing to report being discharged from full-time employment; (6) failing to

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make a full and truthful report to her probation officer; and (7) absconding the judicial
district. Though issued in 2005, the warrant was not served on the defendant until July 2008.

       A revocation hearing was held at which Cindy Cooper, a Madison County community
corrections case officer, and the defendant testified. Ms. Cooper testified that she inherited
the defendant’s file in April 2006 from a former case officer, Ruby Schuler, who was no
longer employed with the Department of Community Corrections. Ms. Cooper testified that
when she received the defendant’s file, the violation warrant had already been issued and was
outstanding. She further stated that she had never met the defendant personally, as the
defendant had not reported since she took over the case. Ms. Cooper acknowledged that she
had made no attempt to contact the defendant although the violation warrant remained
outstanding. Based upon the information in the file, Ms. Cooper testified that the defendant
had not reported since March 2, 2005, and had failed to pay anything toward fines or costs
since February 17, 2005. The other charged violations, such as curfew violations and address
changes, were stricken because Ms. Cooper had no personal knowledge of the violations as
they had been conducted by the prior case officer.

        The defendant acknowledged that she failed to report after February 22, 2005, and
stated that she had been “working a lot” of “rotat[ing] shifts” at the Milan Arsenal, where she
had been employed for three and a half years. According to the defendant, she attempted to
contact Ms. Schuler, but her voice mail was always full. The defendant also testified that she
visited Ms. Schuler’s office “several times” but was told that she was not in the office. She
further acknowledged that she had moved to Beech Bluff from her original address and then
moved to Henderson County during the week prior to her arrest.

        With regard to her payment of costs and restitution, the defendant asserted that she
had paid the entire balance in one case and believed that amount was her entire balance. She
also testified that she had spoken with her employer and that she would be able to return to
work if she was again sentenced to a probationary sentence.

        On cross-examination, the defendant stated that she had tried to contact Ms. Schuler
until “sometime in ‘06,” when she found out that Ms. Schuler was no longer employed with
the Community Corrections Program. The defendant further testified that she both called and
visited the community corrections offices and that they were unable to give her information
about her new supervising officer. According to the defendant, someone in the office
informed her that “somebody would be contacting” her. She did acknowledge that she had
made no payments toward her restitution and costs but, again, stated that she believed that
they were paid in full.




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       Upon questioning by the trial court, the defendant again acknowledged that she had
not reported since February 2005. She reiterated her claim that she had visited the probation
office on multiple occasions and had asked “the lady at the front desk” who her new officer
was. The defendant denied that anyone in the community corrections office had informed
her of the outstanding warrant. Finally, the defendant admitted that she moved from her
original address to Beech Bluff without gaining permission from Ms. Schuler. She asserted,
however, that she called the community corrections officer and relayed the information after
the move.

       Ms. Cooper was then recalled and testified that the office had a computerized case
management system and, further, that she was listed as the defendant’s case officer in that
system. According to Ms. Cooper, anyone working the front desk at the office would have
access to this information.

       After hearing the evidence presented, the trial court determined that the defendant had
violated the terms and conditions of probation and removed her from the Community
Corrections Program. Subsequently, a resentencing hearing was held. The only proof
admitted at the hearing was the presentence report and letters from the defendant’s former
employer and landlady. Following the hearing, the trial court again imposed four-year
sentences for each conviction, to be served in the Department of Correction, and further
ordered that the convictions in case numbers 02-702 and 03-119, be served consecutively for
an effective sentence of eight years. Subsequently, notice of appeal was filed.

                                          Analysis

        On appeal, the defendant presents challenges to both the revocation of her probation
and the subsequent imposition of consecutive sentencing. Specifically, she contends that:
(1) the trial court erred in conducting a hearing and revoking the probation in the absence of
the original probation officer; and (2) the court imposed an excessive sentence by relying
upon prior criminal charges from Obion County and imposing consecutive sentencing. As
an initial matter, the State contends that the appeal should be dismissed as the defendant
failed to file a timely appeal.

       Rule 4(a) of the Tennessee Rules of Appellate Procedure states that the notice of
appeal “shall be filed . . . within 30 days after the date of entry of the judgment appealed
from[.]” We agree with the State that the defendant was not in compliance with this rule as
the judgments were entered on October 1, 2008, and the notice of appeal was not filed until
November 3, 2008.




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        However, Rule 4(a) states that “in all criminal cases the ‘notice of appeal’ document
is not jurisdictional and the filing of such document may be waived in the interest of justice.”
Tenn. R. App. P. 4(a). In determining whether waiver is appropriate, this court will consider
the nature of the issues presented for review, the reasons for and the length of the delay in
seeking relief, and any other relevant factors presented in the particular case. State v.
Markettus L. Broyld, No. M2005-00299-CCA-R3-CO (Tenn. Crim. App. at Nashville, Dec.
27, 2005). Waiver is not automatic and should only occur when “the interest of justice”
mandates waiver. State v. Scales, 767 S.W.2d 157, 158 (Tenn. 1989).

       The State argues that waiver is not appropriate in this case because the defendant has
not sought relief from this court from the untimely filing of the notice of appeal. While we
agree with the State that the defendant has failed to acknowledge the untimely notice of
appeal, we, nonetheless, conclude that the interest of justice mandates review in this case,
based upon the completeness of the record and judicial economy to resolve the raised issues.

I. Revocation

       First, the defendant contends that the trial court erred in revoking her sentence of
community corrections when her supervising probation officer was not present and available
for subpoena. The defendant specifically asserts that she was denied the opportunity to
confront and cross-examine Ruby Schuler, who was the only witness who could have
disputed the testimony given by the defendant.

        The decision of a trial court to revoke a defendant’s probation is reviewed under an
abuse of discretion standard. State v. Harkins, 811 S.W.2d 79, 83 (Tenn. 1991). In a
revocation case, a trial court will not be found to have abused its discretion unless the
defendant shows “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.” Id. at 82.
Substantial evidence of a violation need only be supported by a preponderance of the
evidence. State v. Wall, 909 S.W.2d 8, 9 (Tenn. Crim. App. 1994). Such evidence will be
deemed sufficient “if it allows the trial judge to make a conscientious and intelligent
judgment.” Harkins, 811 S.W.2d at 82. Appellate review of the trial court’s judgment
entails an examination of the record to determine whether it contains evidence showing that
the trial court’s exercise of its statutory authority to revoke the suspension and impose the
original sentence was not arbitrary but was within the trial court’s sound discretion. State
v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991); see also T.C.A. § 40-35-310
(2006).

       As an alternative or non-incarcerative sentence, “a community corrections sentence,
as a practical matter, closely resembles that of probation.” Harkins, 811 S.W.2d at 82.

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“Given the similar nature of a community corrections sentence and a sentence of probation,
we hold that the same principles are applicable in deciding whether a community corrections
revocation was proper.” Id. at 83. The Community Corrections Act explicitly gives the trial
court “the power to revoke the sentence imposed at any time due to the conduct of the
defendant. . . .” T.C.A. § 40-36-106(e)(4) (2006). Although the Act imposes special
procedures that must be followed when a trial court resentences a defendant to an increased
sentence after finding that he or she has violated the program, whether a violation has
occurred is determined by and reviewed under the same standard as that for probation
violations. State v. Crook, 2 S.W.3d 238, 241 (Tenn. Crim. App. 1998); see also T.C.A. §
40-36-106(e)(2), (4).

        In revoking the defendant’s sentence, the trial court made the following findings of
fact:

                In this case the Court finds that [the defendant] has in fact violated the
        terms and conditions of her probation in a substantial way those being that she
        has failed to report every two weeks to visit with her probation officer. Now,
        I believe Ms. Cooper has testified that according to the records with the
        Community Corrections office, it appears that [the defendant] last reported to
        their office either February the 22nd of 2005 or perhaps March the 2nd of
        2005, but clearly she has not reported to their office since that time. I
        understand she testifies that she has reported, but I [do not] find her testimony
        credible at all. You know, I tend to believe that if she showed up to that office
        and said I’m here to report to my probation officer and Ms. [Schuler] is my
        probation officer and if Ms. [Schuler] was no longer employed there,
        somebody from that office would have made sure that she met with whoever
        the new probation officer was which in this case was Ms. Cindy Cooper. It
        makes absolutely no sense that she would just show up there and then turn
        around and leave. I just [do not] find her testimony credible at all with regards
        to her saying that she has reported.

               I do credit Ms. Cooper when she testifies that to her knowledge this
        defendant has not reported since March the 2nd of 2005 which would be over
        three years she’s gone without reporting to her probation officer. Again, the
        proof is that she was supposed to report every two weeks.

               Also the Court finds that she violated probation by failing to pay $75
        per month as ordered on her court costs and restitution. It would appear that
        the last payment made was February the 17th of 2005. I understand she
        indicates that she thought she paid everything off, but again it’s her

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       responsibility to make sure when she makes her payments to the clerk’s office
       that she had paid everything off. According to what has been testified to, she
       still owes quite a bit on her court costs and restitution and she certainly had the
       ability to pay. She testified that she had been working at the Milan Arsenal
       this whole time and certainly had the ability to pay but chose not to pay for
       whatever reason. The Court finds that she did wilfully violate probation by
       failing to make her payments each and every month.

              Also the Court finds that she failed to obtain special permission from
       her case officer before changing her residence. [She has] testified here today
       that she had discussed with Ms. [Schuler] the fact that she might move, but
       clearly from her testimony she moved to another location without notifying
       Ms. [Schuler]. It [was not] until after she had already moved to Beech Bluff,
       Tennessee, away from Jackson, that she attempted according to her testimony
       to contact Ms. [Schuler] who apparently was not working there any longer at
       that time so, again, the Court finds that she did in fact move without
       permission of her case officer in this case.

              Obviously since she has not reported in over three years, the Court finds
       that she has absconded from probation.

        Review of the record fails to reveal that the trial court’s decision to revoke the
defendant’s sentence was an abuse of discretion. As noted by the State, it chose to proceed
only upon the charged violations that Ms. Cooper had personal knowledge of because Ms.
Schuler was not available to testify with regard to the other alleged infractions, despite the
fact that they were the type of violations this court has previously found to be admissible as
reliable hearsay from the violation report. See State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim.
App. 1994). Nonetheless, with regard to the failure to report and the failure to pay costs, Ms.
Cooper gave specific testimony that the defendant had failed to comply. Moreover, the
defendant herself admitted that she had not reported or paid costs. The trial court, making
a credibility determination, rejected her asserted reasons for not complying, and it is not the
province of this court to reweigh either the credibility or the validity of excuses.
Additionally, the defendant testified that she had moved prior to gaining approval from Ms.
Schuler. A violation of only one condition of probation is necessary to support revocation.
There was substantial and credible evidence of multiple violations. As such, we are unable
to conclude that the trial court failed to exercise its conscientious and intelligent judgment
in revoking the sentence. The defendant’s argument is without merit.

II. Resentencing



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        The defendant asserts two errors with regard to her resentencing. The first involves
the trial court’s reliance upon information contained in the presentence report, specifically,
prior charges in Obion County in 1996 and 1997. The presentence report indicates that the
cases remain pending; thus, no convictions have actually occurred. The defendant argues
that it was error to rely upon “these [eleven]-year[-]old stale and non-prosecuted cases” in
determining her sentence. She asserts that the reliance on the Obion County charges was an
abuse of discretion and should be reversed.

        After review, we must reject the defendant’s argument. Initially, we are constrained
to note that the defendant’s argument is somewhat unclear, as she appears to imply that
reliance on this resulted in both improper revocation and an improper sentence. Clearly, the
trial court did not rely upon this conduct to support the revocation, as it was not made
available to the court until the sentencing hearing. We would further note that the abuse of
discretion standard is not applicable if we address this in the context of sentence imposition.
Rather, this court reviews sentencing under a de novo standard with a presumption of
correctness. State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). Regardless of the standard
we apply, however, the defendant’s arguments are factually incorrect. The court, although
noting that the Obion County charges existed and that the charges were still pending,
specifically stated that “I don’t really hold these against her.” From this statement, it is clear
that the trial court did not rely upon those convictions in resentencing the defendant. Thus,
the defendant’s assertion is misplaced.

        Second, the defendant contends that the trial court erred in ordering consecutive
sentencing following resentencing. Specifically, she asserts that “it [was] error for the Court
to increase the sentence of a probationer at a revocation hearing” by imposing consecutive
sentences because it made the sentence more onerous than the original imposed sentence.
State v. Merriweather, 34 S.W.3d 881 (Tenn. Crim. App. 2000). This argument is misplaced.

       While we would agree with the defendant’s argument that a trial court may not
increase a probationary sentence after finding a violation, that is not the situation before this
court. T.C.A. § 40-35-311(d) (2006) (the most severe punishment available upon revocation
of probation is for the court to commence the execution of the judgment as originally
entered). The defendant in this case was on community corrections, not probation. Although
the two are similar, distinctions do exist. One such distinction is that the Community
Corrections Act specifically allows a court to increase the length of the sentence up to the
maximum of the sentencing range of the original sentence imposed provided that proper
procedures are followed at the new sentencing hearing. Samuels, 44 S.W.3d at 494 n.2.
Further, the authority of the trial judge to “alter or amend at any time the length, terms, or
conditions of the sentences imposed[,]” T.C.A. 40-36-106(e)(2), has been repeatedly
interpreted by this court to allow for the imposition of consecutive sentences. Id. at 496.

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Thus, provided that the trial court considered all the requisite principles of sentencing, there
was no statutory bar to resentencing the defendant to consecutive sentences.

       We note that the defendant does not challenge the trial court’s findings that
consecutive sentencing was appropriate, only that it was statutorily precluded. Nonetheless,
our review supports that the trial court correctly imposed consecutive sentencing based upon
the defendant’s prior extensive criminal history. Consecutive sentencing is appropriate,
pursuant to Tennessee Code Annotated section 40-35-115(b)(2) (2006), if the court finds that
the offender has an extensive criminal history. See also State v. Adams, 973 S.W.2d 224, 231
(Tenn. Crim. App. 1997) (extensive criminal history alone is sufficient to justify consecutive
sentencing).

        Our review reveals that the trial court considered all relevant sentencing principles,
as well as all relevant facts and circumstances, pursuant to the mandates of State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). Accordingly, we afford the presumption of correctness.
We find nothing to dispute the trial court’s finding that the defendant’s criminal history was
extensive as evidenced by her convictions for ten counts of identity theft, as well as her
multiple prior misdemeanor convictions for writing bad checks and the fraudulent use of a
credit card. Thus, we find no error in the court’s imposition of consecutive sentencing.

                                       CONCLUSION

       Based upon the foregoing, the judgments of the trial court are affirmed.




                                                    ___________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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