        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   June 3, 2014 Session

                  STATE OF TENNESSEE V. DENNIS BUTLER

                  Appeal from the Criminal Court of Shelby County
                        No. 10-01213    Chris Craft, Judge


                 No. W2013-01397-CCA-R3-CD - Filed July 28, 2014


Dennis Butler (“the Defendant”) pleaded guilty to one count of sale of cocaine. Pursuant to
the plea agreement, the Defendant was sentenced to four years suspended to probation. Upon
the filing of a probation revocation warrant, the Defendant was taken into custody, and a
revocation hearing was held. At the conclusion of the hearing, the trial court revoked the
Defendant’s probation and ordered him to serve his original sentence in confinement. The
Defendant timely appealed the trial court’s ruling. Upon a thorough review of the record,
we affirm the trial court’s judgment.

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

J EFFREY S. B IVINS, S P. J., delivered the opinion of the Court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN , JJ., joined.

Joseph S. Ozment, Memphis, Tennessee, for the appellant, Dennis Butler.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Stephanie Johnson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

       The Defendant was indicted by a Shelby County Grand Jury on one count each of sale
of cocaine, possession with intent to sell cocaine, and possession with intent to deliver
cocaine. The Defendant subsequently entered into a guilty plea for sale of cocaine, and the
other two charges were dismissed. In accordance with the plea agreement, the Defendant
received a sentence of four years suspended to probation. Included within the terms of the
Defendant’s probation were the requirements that the Defendant submit to “random and
frequent drug screens,” acquire full-time employment, and obtain his GED by August 26,
2011. On November 30, 2011, a probation violation warrant was issued, alleging that the
Defendant “violated Rule #10 in that he failed to . . . obtain [his] GED by August 26, 2011.”

        The trial court held a hearing on January 25, 2012. During this hearing, the State
agreed to allow the Defendant out on bond to take the test for his GED on March 13, 2012.
Accordingly, the trial court reset the matter. At a hearing on June 15, 2012, the Defendant
told the trial court that his test scores had “improved” but that he needed to take the test again
on July 23, 2012. Accordingly, the trial court reset the matter for August 31, 2012, at which
point the Defendant still had failed to obtain his GED. The trial court again reset the matter
for November 16, 2012. At the November 2012 hearing, the Defendant told the trial court
that he had “passed everything” except the essay portion and requested permission to re-take
the exam, which the trial court allowed. The next hearing was on February 22, 2013, at
which point the Defendant still had yet to obtain a passing score for his GED. The State
agreed to let the Defendant have “one more opportunity” to obtain his GED but stated, “[I]f
he doesn’t pass then I think we’re at the end of the line.” Accordingly, the trial court reset
the matter again. On May 24, 2013, the Defendant still had failed to attain a passing score
on the test for his GED. Upon hearing that the Defendant had not passed the test, the trial
court stated, “I’m revoking [the Defendant’s] probation because he did not apply himself and
get a GED. He can do it. I’m finding he can do it, he just didn’t work at it. Just didn’t. And
I’ve told him that several times.”

        The Defendant testified at the May 24 hearing that he was aware that he would receive
incarceration if he failed to pass the test for his GED. He stated that, in preparation for the
test, he attended classes at Messick High School. He confirmed that he had taken and failed
the GED on three occasions. According to his most recent test results, he had passed every
section except science. He confirmed that his test scores had continued to improve each time
that he took the test.

        At the conclusion of the hearing, the trial court noted all the previous hearing dates
in which the trial court had given the Defendant additional chances to obtain his GED. The
trial court stated, “And if I did not violate his probation then I can never ever make that a
condition again because it’s a joke.” The court continued, “This four years that [the
Defendant is] getting is not because he didn’t get his GED. The four years he’s getting is
because of his record and the fact that he decided to sell cocaine to people in our county and
turn them into drug addicts and make money off of poor people.” Accordingly, the trial court
revoked the Defendant’s probation and reinstated his original, four-year sentence to be served
in confinement. The Defendant timely appealed.



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                                           Analysis

       The Defendant contends that the trial court erred in revoking the Defendant’s
probation. On appeal, we will not disturb the trial court’s decision to revoke probation
absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also
State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). We will grant relief only
when “‘the trial court’s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved.’” Shaffer, 45 S.W.3d at 555 (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

      Tennessee Code Annotated section 40-35-311 provides that, in a probation revocation
proceeding, the court “may enter judgment upon the question of the charges as the trial judge
may deem right and proper under the evidence adduced before the trial judge.” Tenn. Code
Ann. § 40-35-311(d) (Supp. 2011). And,

              [i]f the trial judge finds that the defendant has violated the conditions
       of probation and suspension by a preponderance of the evidence, the trial judge
       shall have the right by order duly entered upon the minutes of the court to
       revoke the probation and suspension of sentence, and:

               (A) Cause the defendant to commence the execution of the judgment
       as originally entered, or otherwise, in accordance with [section] 40-35-310; or

              (B) Resentence the defendant for the remainder of the unexpired term
       to any community-based alternative to incarceration authorized by chapter 36
       of this title; provided, that the violation of probation and suspension is a
       technical one and does not involve the commission of a new offense.

Id. § -311(e)(1); see also State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999). Thus, the State
only must prove that the defendant violated the terms of his or her probation by a
preponderance of the evidence.

        The Defendant conceded at the probation violation hearing that he violated the terms
of his probation. He asserts, nevertheless, that the trial court erred in basing its decision to
revoke the Defendant’s probation on its finding that the Defendant “failed to apply himself
and obtain his GED after many attempts.” Once again, “[i]f the trial judge finds that the
defendant has violated the conditions of probation and suspension by a preponderance of the
evidence, the trial judge shall have the right by order duly entered upon the minutes of the
court to revoke the probation.” Tenn. Code Ann. § 40-35-311(e)(1). The Defendant agreed,
as a condition of probation, to obtain his GED by August 26, 2011. As the trial court noted,


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the Defendant had been given several chances and additional time to obtain his GED.
Indeed, although the Defendant was to obtain his GED by August 26, 2011, the trial court
provided the Defendant until May 24, 2013 to pass the test. Even then, over eighteen months
past the agreed-upon deadline, the Defendant had failed to obtain his GED. Thus, there was
no error on the part of the trial court in revoking the Defendant’s probation.

        The Defendant also argues that the requirement of obtaining his GED should not have
been included as a condition of probation. We note that, had the Defendant taken issue with
this condition of probation, the Defendant should have challenged the condition on direct
appeal, rather than waiting until the violation of his probation. See Tenn. Code Ann. § 40-
35-401(a) (2010) (if a defendant wishes to challenge the manner of service of the imposed
sentence, the defendant must do so “within the same time and in the same manner as other
appeals in criminal cases”); Tenn. R. App. P. 4(a) (notice of appeal must be filed “within 30
days after the date of entry of the judgment appealed from”). Accordingly, the Defendant
is entitled to no relief on this issue.

                                        Conclusion

       The trial court did not err in revoking the Defendant’s probation and ordering him to
serve his original sentence in confinement. Accordingly, the judgment of the trial court is
affirmed.

                                          ____________________________
                                          JEFFREY S. BIVINS, SP. JUDGE




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