        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 12, 2014

        STATE OF TENNESSEE v. SHAWN CHRISTOPHER SALES

                Appeal from the Circuit Court for Rutherford County
                      No. F-67696A        David Bragg, Judge




               No. M2013-01510-CCA-R3-CD - Filed February 28, 2014


The Defendant, Shawn Christopher Sales, pled guilty to robbery, and the trial court sentenced
him to 163 days in confinement followed by fifteen years to be served in Community
Corrections. In March 2013, the Defendant’s Community Corrections officer filed a second
affidavit alleging the Defendant had violated his Community Corrections sentence, and, after
a hearing, the trial court ordered the Defendant to serve the remainder of his sentence in
confinement. On appeal, the Defendant contends the trial court erred when it revoked his
Community Corrections sentence because the State presented insufficient evidence to support
the revocation. After a thorough review of the record and applicable authorities, we conclude
that the trial court did not err when it revoked the Defendant’s Community Corrections
sentence, and we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J EFFREY S. B IVINS, JJ., joined.

Billie I. Zimmermann, Murfreesboro, Tennessee, for the appellant, Shawn Christopher Sales.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Nathan Nicholas, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                          I. Facts
                                      A. Background


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        This case arises out of the Defendant’s plea of guilty to robbery. The trial court
sentenced the Defendant, a Career Offender, to 163 days in confinement and the remainder
of his fifteen year sentence on Community Corrections. The suspended sentence order listed
the conditions of the Defendant’s Community Corrections sentence, which included that he:
have “[g]ood and lawful conduct and abide by all the rules of probation;” “[s]ubmit to
random drug/alcohol screens and do not use or associate with anyone using illegal drugs;”
“[n]ot to use or associate with anyone using alcohol;” “[p]ay the cost, fines and restitution
as directed by the supervising agency;” have “[n]o association with convicted felons (except
family);” and have “[n]o direct or indirect contact with the victim or the victim’s family and
stay away from all places frequented by them.” The suspended sentence order also informed
the Defendant that any violation of the rules of probation would result in the service of the
entire sentence.

        On January 30, 2013, a violation of probation order was filed. The order indicated
that a warrant had been issued based upon the Defendant violating his probation. The order
indicated that the Defendant agreed he had violated his probation, and the warrant was
sustained. The Defendant was ordered to serve 115 days in confinement before reinstatement
to the original term of Community Corrections. The conditions of the sentence remained the
same, with the following additional condition being added or modified: “[n]ot to
use/associate with anyone using alcohol to excess.” The Defendant agreed that any further
violation of his probation would result in the service of his entire sentence, and he also
agreed to waive application for a suspended sentence both now and in the future. After these
agreements, the trial court dismissed the amended warrants.

       On March 11, 2013, the Defendant’s Community Corrections officer filed an affidavit
alleging that the Defendant had violated his Community Corrections sentence. He swore:

       Shawn Christopher Sales did not report to his Community Corrections case
       officer the week of 02/25/2013-03/01/2013. Mr. Sales was not home on
       03/04/3013 [sic] at 8:45 am, during a random home visit at 705 A. East Castle
       Street . . . . The occupants of the residence stated that Shawn Sales does not
       live at that address. A female occupant of the residence stated that Shawn
       Sales is her cousin, but that he does not live there. On 03/04/2013, at 8:35 am,
       Mr. Sales told his Community Corrections case officer that he does live at 705
       A East Castle Street . . . his correct address is unknown. Mr. Sales has not
       paid any of his court costs and fines. Mr. Sales has not paid any of his
       Community Corrections and Supervision fees. Mr. Sales has not provided a
       biological sample for the purpose of DNA, as required by TCA 40-35-321.
       Mr. Sales has not attended required MRT classes. Mr. Sales has done no
       community service work. On 03/08/2013, at 2:45pm, Mr. Sales was not at 705

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       A. East Castle Street . . . during a random home visit. A female occupant of
       the residence stated, again, that Mr. Sales does not live at that address, and also
       stated that, in fact, [he] has never lived at that residence.


        Based upon this affidavit, the trial court issued a warrant for the Defendant’s arrest.
At a hearing, the parties presented the following evidence: Jeff Tenaglia, the Defendant’s
Community Corrections officer, testified that the Defendant was placed on Community
Corrections after pleading guilty to robbery. Officer Tenaglia testified that the Defendant
first violated his sentence 151 days after being placed on Community Corrections. After the
Defendant violated his sentence, he was ordered to serve 115 days in confinement, after
which he was returned to Community Corrections on January 30, 2013. Forty-one days later,
on March 12, 2013, the Defendant again violated his the conditions of his sentence.

       Officer Tenaglia testified that, on the second occasion, the Defendant violated his
sentence in numerous ways. He failed to report on February 25, 2013, and he was not present
during home visits on February 2, 2013, February 17, 2013, March 3, 2013, March 4, 2013,
and March 8, 2013. Officer Tenaglia testified that the Defendant reported on March 11,
2013, and the officer told him that he had been to the residence the Defendant listed as his
home address and that the people there said the Defendant did not live there. The Defendant
told him that he did, in fact, live there. Officer Tenaglia said he asked the Defendant to
accompany him to the address, and the Defendant agreed. When they arrived, they knocked
on the door. In the presence of the Defendant, Officer Tenaglia again asked the residents if
the Defendant lived there, and they said “no.”

        The officer said the Defendant maintained that he lived there and that he had some
possessions there. Officer Tenaglia asked the residents if the Defendant had possessions
there, and they said “no.” The residents said they were familiar with the Defendant and that
he had “stayed” with them in the past at a different address but that he had never lived at this
address. Further, the residents informed him that the Defendant did not have any possessions
at that address. Officer Tenaglia then left and spoke with the Defendant privately. He told
the Defendant that he knew the Defendant was not living at the residence, and the Defendant
admitted he was homeless and living out of his vehicle.

       Officer Tenaglia explained the importance of a physical address for an offender
serving a Community Corrections sentence. He said that the Community Corrections
requirements require the offender to be at home unless they are at work or attending school.
The Defendant had not asked for permission to leave his home. Further, had he informed the
officer of his situation, the officer would have referred him to a shelter, which would then
become his physical address.

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       Officer Tenaglia noted the Defendant’s additional violations, which included: not
paying court costs and fines, not submitting to a DNA sample, not participating in public
service, and not completing his required moral recognition therapy (“MRT”) class.

        During cross-examination, Officer Tenaglia testified that the Defendant had failed to
report on one occasion. The officer said that the Defendant informed him that he would have
to move from the 705 A address because he was not getting along with the people who lived
there, saying that he was going to move in with his grandmother. Officer Tenaglia testified
that his office would not take a DNA sample or allow an offender to take the MRT class until
they paid the appropriate fees, which were $37.00 and $26.00, respectively. Officer Tenaglia
testified that the first violation was based upon a failed drug screen, but the Defendant had
since passed multiple drug screens.

       The Defendant testified that he was twenty-four years old at the time of the hearing.
He said that, while he was on probation, he had looked for employment but to no avail. The
Defendant said that, when he was released in January, he was living at the 705 A address
with Marcus Jefferson, whose girlfriend sometimes spent the night. The Defendant said that,
shortly after moving in, Mr. Jefferson’s landlord learned that the Defendant was a convicted
felon. She said he was not allowed to live in the residence. The Defendant said that he left
the 705 A address during the last week of February. He said that, in March on the Friday
before he was supposed to report, he informed Officer Tengalia during a telephone
conversation that he was going to have to move out of the 705 A address. He said he further
told him that he was going to live with his grandmother at U-189 Imperial Gardens. The
Defendant denied telling Officer Tenaglia that he was living out of his car. In fact, he said,
he did not own a car.

       The Defendant said he did not provide a DNA sample because he did not have the
money to pay for the fee. The Defendant said that, if he were returned to Community
Corrections, he had a place to live, a cell phone, and the knowledge of how to get a job. The
Defendant said that he did not take the MRT class because he had a “charge partner” who
was in the class, and he understood he could not take the twelve-week course at the same
time as his “charge partner.” He said that he had not started his community service because
he “had heard” that he could go to the Dollar Store and purchase canned goods and that, for
every can he purchased, he would earn one hour of community service. He explained that
because he did not have any money he was unable to buy cans. He agreed he could have
gone to a church to work toward his community service requirement.

       During cross-examination, the Defendant said he had not begun his community
service because he was “out looking for a job.” He agreed that he had only had two or three
job interviews. The Defendant agreed that he was on house arrest and was to call his

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Community Corrections officer if he left the house. He also agreed that he was not living at
the address he gave Officer Tenaglia when Community Corrections representatives came to
that address looking for him on March 3, March 4, and March 8. The Defendant said he
called Officer Tenaglia each time he left the residence. He said he was at a job interview
during the home visit on February 2, and he did not recall where he was on February 17. He
said that he was sure, however, he had asked permission to leave the residence.

       Based upon this evidence, the trial court found:

              The Court finds based on the testimony, credibility of the witnesses as
       presented, that [the Defendant] has violated the terms of his Community
       Corrections sentence. Violation of house arrest, as well as a violation of
       having a place to stay. A violation of not getting his D.N.A. sample done or
       doing his M.R.T. class.

              [T]he questioning would raise an issue as to whether or not [the
       Defendant] had the financial ability to give the D.N.A. sample or . . . buy the
       book. And I guess it may be that [the Defendant] should not have been placed
       on Community Corrections initially if he would be unable to comply with
       those requirements of the program.

              However, he has been on the program and has earned some time while
       he has been there. The Court is aware and appreciative of the fact that [the
       Defendant] hasn’t picked up any new charges, hasn’t violated any drug screens
       during the time that he’s been on this second bite at the apple. However, he
       has not complied with the terms of his Community Corrections order.

              And, so, the Court, based on that finding, orders that he serve his
       sentence as initially imposed.


       The trial court revoked the Defendant’s Community Corrections sentence and ordered
the Defendant to serve his sentence in the Tennessee Department of Correction, with credit
for time served and time under Community Corrections. It is from this judgment that the
Defendant now appeals.

                                       II. Analysis

    On appeal, the Defendant contends that the trial court erred when it revoked his
Community Corrections sentence because the State failed to show by a preponderance of the

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evidence that the Defendant had violated the conditions of his supervision. The State
responds that the trial court had substantial evidence to revoke his Community Corrections
sentence.

        Our review of a trial court’s revocation of a Community Corrections sentence is
similar to our review of a trial court’s probation revocation. State v. Harkins, 811 S.W.2d
79, 83 (Tenn. 1991). A trial court may revoke probation upon its finding by a preponderance
of the evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-
311(e) (2010). “In probation revocation hearings, the credibility of witnesses is to be
determined by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991). If a trial court revokes a defendant’s probation, its options include ordering
confinement, ordering the sentence into execution as originally entered, returning the
defendant to probation on modified conditions as appropriate, or extending the defendant’s
period of probation by up to two years. T.C.A. § § 40-35-308(a), (c), -310 (2010); see State
v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999).

        The judgment of the trial court in a revocation proceeding will not be disturbed on
appeal unless there has been an abuse of discretion. See State v. Smith, 909 S.W.2d 471, 473
(Tenn. Crim. App. 1995). In order for this court to find an abuse of discretion, “there must
be no substantial evidence to support the conclusion of the trial court that a violation of the
conditions of probation has occurred.” State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001).
After finding a violation, the trial court is vested with the statutory authority to “revoke the
probation and suspension of sentence and cause the defendant to commence the execution
of the judgment as originally entered . . . .” T.C.A. § 40-35-311(e)(1) (2010); accord Hunter,
1 S.W.3d at 646 (holding that the trial court retains the discretionary authority to order the
defendant to serve his or her original sentence in confinement). Furthermore, when
probation is revoked, the trial court may order “the original judgment so rendered to be in full
force and effect from the date of the revocation of the suspension . . . .” T.C.A. § 40-35-
310(a) (2010).

       The evidence shows that the Defendant failed to report to his Community Corrections
officer, failed to inform his officer that he was not living at the address he had previously
provided, failed to complete any of his community service, failed to participate in his MRT
class and failed to provide a DNA sample. Thus, the trial court did not abuse its discretion
when it ordered the Defendant’s Community Corrections sentence to be revoked. The
Defendant is not entitled to relief on this issue.

                                       III. Conclusion




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        Based upon the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

                                                ___________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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