                                                                                       09/10/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                        Assigned on Briefs February 26, 2019

                STATE OF TENNESSEE v. HELENA MOORE

                 Appeal from the Criminal Court for Roane County
                 No. 2015-CR-152         Jeffery Hill Wicks, Judge
                      ___________________________________

                          No. E2018-00709-CCA-R3-CD
                      ___________________________________


The Appellant, Helena Moore, appeals the trial court’s revocation of her community
corrections sentence and order to serve her original two-year sentence in confinement,
contending that she should have been returned to community corrections. Upon review,
we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Ian McCabe, Knoxville, Tennessee, for the Appellant, Helena Moore.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Russell Johnson, District Attorney General; and Kristin Rudden
Kelley, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

                                I. Factual Background

       On August 14, 2015, the Appellant pled guilty to theft of property valued more
than $1,000 but less than $10,000, and she received a sentence of two years, which was
suspended to probation. On November 29, 2016, the trial court entered an order revoking
the Appellant’s probation and ordering her to serve forty days in jail before serving the
balance of her two-year sentence on community corrections. In connection with the
order, a “Behavior Contract and Conditions of Sentence” was entered that reflects the
Appellant was convicted of “Theft X 2 ($1000.00 to 10,000.00)” and that she was
“sentenced to serve a term of 4 years in the Department of Corrections.” 1




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       On April 7, 2017, a warrant was issued alleging that the Appellant violated the
terms of her community corrections. At the revocation hearing, the parties stipulated that
the Appellant had violated the terms of her community corrections.

        Victor Owen, who was in charge of the Community Corrections Program, testified
that on November 29, 2016, the Appellant began serving her community corrections
sentence and that she first reported on December 6, 2016. Owen reviewed the rules and
conditions of the community corrections sentence with the Appellant. He also warned
her that the “worst thing” she could do was “abscond from” community corrections and
that if she violated the terms of community corrections, she likely would go to prison.

      On December 6, the Appellant failed a drug test by testing positive for opiates and
morphine. Owen noted the Appellant had a prescription that could have accounted for
the positive opiate finding. Nevertheless, during in-person meetings and telephone
conversations Owen had with the Appellant during the month of December, the
Appellant acknowledged that she had “messed up,” that she “need[ed] help,” and that she
wanted to get into a drug treatment program. Owen told her that he would not object if
she could get into a program on her own but cautioned that she would be required to
complete the program as a condition of community corrections.

        Thereafter, the Appellant voluntarily entered a residential rehabilitation program at
“Serenity House.” Around February 6, 2017, after successfully completing the Serenity
House program, the Appellant entered a three-month “intensive outpatient” program at
Hope of East Tennessee (“Hope House”), which was a halfway house for women. Owen
noted that Serenity House was more restrictive than Hope House. He again informed the
Appellant that she would be required to complete the program as a condition of
community corrections. Owen thought that Hope House was a follow-up program to
Serenity House but did not know if the Appellant went there at the recommendation of
the staff at Serenity House.

       On March 1, the Appellant tested positive for Buprenorphine. Three days later,
the Hope House staff suspected the Appellant had used methamphetamine and requested
that she submit to a drug test. She refused and was discharged from the facility later that
day. On March 6, a Hope House staff member sent Owen a letter advising him of the
Appellant’s discharge, but Owen could not recall the date he received the letter.

        1
         The form indicates that at some point, the Appellant was convicted of another theft charge, that
a two-year sentence was imposed for the other theft conviction, and that the sentences for the theft
convictions were to be served consecutively.
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       Owen said that the Appellant “abscond[ed]” from community corrections and had
no contact with him for six months after her discharge from Hope House. He noted that
an offender was considered to have “officially absconded” from community corrections if
she failed to report for thirty days.

       In September 2017, the Appellant was arrested for violating the terms of her
community corrections sentence. Following her arrest, she sent Owen a letter from jail.
She said that she did not report to community corrections after she was discharged from
Hope House “because she was scared.” Sometime later, Owen learned that the Appellant
had been charged with theft and that the victim of the new charge was the same victim of
the theft convictions for which the Appellant was on community corrections. The new
charge was pending at the time of the revocation hearing.

        Owen noted that when he initially met with the Appellant, he advised her that she
was supposed to pay $100 per month toward costs, fines, and restitution. However, she
had paid nothing since she began serving her 2016 community corrections sentence. He
said that he was less concerned about her failure to pay while she was in the rehabilitation
facilities than he was about her failure to pay during “the six months she absconded.”
Nevertheless, he noted that he had another client who was in Hope House around the
same time as the Appellant and that the other client “actually did a good job on paying on
her court costs and fines.” Owen thought the Appellant was employed at a McDonald’s
restaurant for a brief time while she was at Hope House. Owen opined that the Appellant
should serve the remainder of her sentence in confinement.

       The State argued that the Appellant should be required to serve the balance of her
sentence in confinement, noting that this was the second time she had unsuccessfully
been released on alternative sentencing. The Appellant contended that as a drug addict,
she was the type of offender community corrections was designed to help. The Appellant
further contended that her violations were because she was a drug addict and that she
voluntarily sought treatment in the Serenity House program. The Appellant asked that
she be given another chance in community corrections.

        The trial court agreed that community corrections was designed to keep non-
violent felons out of prison. The court stated, however, that the Appellant had been given
a chance in community corrections and that she did not comply with its requirements.
The trial court noted that the Appellant failed to report for approximately six months and
that she left the rehabilitation facility without informing Owen. The trial court further
noted that the Appellant was arrested on a new charge while on community corrections.
The court revoked the Appellant’s community corrections sentence and ordered her to
serve the balance of her sentence in confinement. On appeal, the Appellant challenges
the trial court’s ruling.
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                                      II. Analysis

      Generally, community corrections sentences are governed by the Tennessee
Community Corrections Act of 1985. See Tenn. Code Ann. § 40-36-101. The Act
provides as follows:

             The court shall . . . possess the power to revoke the sentence
             imposed at any time due to the conduct of the defendant or
             the termination or modification of the program to which the
             defendant has been sentenced, and the court may resentence
             the defendant to any appropriate sentencing alternative,
             including incarceration, for any period of time up to the
             maximum sentence provided for the offense committed, less
             any time actually served in any community-based alternative
             to incarceration.

Tenn. Code Ann. § 40-36-106(e)(4). A trial court may revoke a community corrections
sentence upon finding by a preponderance of the evidence that an offender violated the
conditions of her suspended sentence. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). The trial court’s revocation of a community corrections sentence will be upheld
absent an abuse of discretion. Id. An abuse of discretion occurs if the record contains no
substantial evidence to support the conclusion of the trial court that a violation of
community corrections has occurred. See State v. Gregory, 946 S.W.2d 829, 832 (Tenn.
Crim. App. 1997).

       On appeal, the Appellant contends that the trial court abused its discretion by
revoking her community corrections sentence and ordering that she serve her sentence in
confinement because she demonstrated a desire to rehabilitate herself by voluntarily
attending the program at Serenity House. However, the Appellant admitted at the
revocation hearing, and she acknowledges on appeal, that she violated the terms of
community corrections. Therefore, the trial court did not abuse its discretion by revoking
her community corrections sentence and ordering that she serve her sentence in
confinement.




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                                      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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