         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  Assigned on June 5, 2007

                 STATE OF TENNESSEE v. MARCUS R. LEWIS

                  Direct Appeal from the Circuit Court for Chester County
                          No. 05-326 Roy B. Morgan, Jr., Judge



                  No. W2006-02579-CCA-R3-CD - Filed November 2, 2007


The defendant, Marcus R. Lewis, appeals the revocation of his alternative sentence. He argues that
there was insufficient evidence to conclude he committed a new offense while on community
corrections, that he failed to complete his community service work, and that he failed to report his
new arrest. We conclude the State proved by a preponderance of the evidence that, while on
community corrections, the defendant was arrested for a new law violation and that the defendant
failed to complete his community service requirements. We affirm the judgment revoking the
defendant’s alternative sentence.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

George Morton Googe, District Public Defender, and Kandi Kelley, Assistant Public Defender, for
the appellant, Marcus R. Lewis.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

        In August 2005, the defendant entered a guilty plea to two counts of aggravated burglary and
two counts of theft of property between $1000 and $10,000. He received a total effective sentence
of six years and was placed on community corrections. Subsequently, the defendant’s Community
Corrections was revoked and was to be reinstated after serving twenty days in the county jail.
        The instant violation warrant was issued against the defendant for failure to (1) remain arrest
free, (2) maintain full-time employment, (3) remain within the 26th Judicial District, (4) pay
supervision fees, and (5) complete community service work.

         A revocation hearing was held. The first witness called by the State was the victim of the
aggravated burglary and theft charges that allegedly occurred while the defendant was on community
corrections. The victim testified that he lived in McNairy County, Tennessee, and that, upon
returning to his home on September 11, 2006, he found both windows in his kitchen had been “pried
open.” He immediately called the police. He discovered that the following items were missing from
his home: money, a Bowie-type knife, a single shot .22 pistol, a camera, a BB gun, and two gasoline
cans. The victim testified that he found a piece of green paper with the defendant’s name written
on it lying on the floor in the kitchen. The paper was made an exhibit and was placed into evidence.
The victim does not know the defendant. The victim agreed that the charges against the defendant
would be dismissed after payment of restitution.

       Next, the State called Sergeant David Heathcock of the McNairy County Sheriff’s
Department. Sergeant Heathcock, who had responded to the victim’s call and observed the open
window, identified the piece of green paper. The Sergeant testified that he did not know the
defendant and that no fingerprints or DNA was recovered. He stated that the only clue was the piece
of green paper containing the defendant’s name.

        Jamie Hurst,1 who testified that she was employed with Chester County Community
Corrections and was assigned to supervise the defendant, identified him in court. As relates to the
defendant’s failure to complete his community service work, Ms. Hurst testified that he was
obligated to perform approximately 250 hours of community service, with a minimum of eight hours
per month, and that he had only reported between 22 and 34 hours during the period between
February 2006 and November 2006. Ms. Hurst identified the piece of green paper (Exhibit 1) as an
appointment slip given to the defendant from her on September 1, 2006.

        The defendant testified he would not argue with the hours of community service work
reported by Mrs. Hurst because he did not keep a record of the hours and stated that he was unaware
that he had not completed the required number of hours. He offered no explanation as to how the
appointment slip (Exhibit 1) came to be in the defendant’s home but simply said, “I didn’t do it.”

        After the hearing, the trial court found that the defendant had failed to complete the required
number of hours of community service work, had failed to report his latest arrest to his supervising
officers within the proper time, and had violated the law while on release, to wit: a burglary in
McNairy County.




         1
             Although Ms. Hurst testified to additional matters that might have resulted in violations, we only include
testimony related to the issues in this appeal.

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                                               Analysis

         A trial court may revoke an alternative sentence 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 their sentence. T.C.A. §§ 40-35-310, -311. The decision to revoke the alternative sentence 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 and a community corrections sentence are subject to an abuse
of discretion standard of review rather than a de novo standard. State v. Harkins, 811 S.W.2d 79,
82 (Tenn. 1991). Discretion is abused only if the record contains no substantial evidence to support
the conclusion of the trial court that a violation of probation or community corrections sentence has
occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation
need not be established beyond a reasonable doubt, and the evidence needs only show that the trial
judge exercised a conscientious and intelligent judgment rather than acted arbitrarily. Gregory, 946
S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

        Here, the record reflects that the defendant violated his sentence because he was arrested for
a new law violation and failed to complete his community service requirements. The record shows
that there was sufficient evidence to support the trial court’s conclusion that the defendant violated
the terms of his release and that the defendant’s revocation was not an abuse of the court’s discretion.
Therefore, we affirm the revocation of the defendant’s sentence.

                                             Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgment from the trial
court.




                                                        ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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