                                                                                      01/26/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs November 14, 2017

      STATE OF TENNESSEE v. MICHAEL EUGENE RHODES, JR.

               Appeal from the Criminal Court for Davidson County
                   No. 2015-B-1330 Mark J. Fishburn, Judge
                    ___________________________________

                          No. M2016-02558-CCA-R3-CD
                      ___________________________________


The Defendant, Michael Eugene Rhodes, Jr., appeals the trial court’s revocation of his
community corrections sentence and resentencing him to ten years in the Department of
Correction. On appeal, he argues that the trial court erred in revoking his community
corrections sentence and in increasing his sentence to ten years. Following our review,
we affirm the sentencing decision of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Michael Eugene
Rhodes, Jr..

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                      OPINION

                                       FACTS

        In 2015, the Davidson County Grand Jury returned a two-count indictment against
the Defendant, charging him with aggravated burglary in Count 1 and theft of property
valued at $500 or less in Count 2. On January 13, 2016, the Defendant pled guilty to the
lesser-included offense of attempted aggravated burglary, a Class D felony, in Count 1,
with an agreed-upon sentence of eight years as a persistent offender and with the manner
of service to be determined by the trial court. Count 2 was dismissed. Subsequently, on
March 21, 2016, the trial court ordered the Defendant to serve one year in confinement,
with the remainder on community corrections, and to pay restitution to the victim.

       On May 11, 2016, a community corrections violation warrant was issued based on
the Defendant’s testing positive for cocaine on April 28, 2016. Thereafter, an amended
warrant was issued on May 26, 2016, based on the Defendant’s failure to report to his
case officer since May 9, 2016. A resentencing hearing was conducted on December 13,
2016, at which the Defendant’s case officer and the Defendant testified. The Defendant’s
presentence report was admitted as an exhibit to the hearing.

       Douglas Murphy, the Defendant’s case officer with the Community Corrections
Program in Davidson County, testified that the Defendant had conceded to the allegations
contained in both warrants. In addition, the Defendant had failed to provide proof of
employment, complete his community service work, pay his supervision fees or court
costs, or make any restitution payments. Mr. Murphy said that the Defendant was
released on April 14, 2016, and failed his drug test two weeks later on April 28.

       The Defendant testified that he served the one-year part of his sentence and was
released on April 14, 2016. He said that he tested positive for cocaine because he was
“[b]eing selfish, thinking about [him]self.” The Defendant admitted that he had stopped
reporting to his case officer, explaining that he was working and trying to help his mother
who suffered from congestive heart failure. He said that he began working at a Captain
D’s restaurant three days after he was released but could not provide a paystub to Mr.
Murphy because he had not received a paycheck at the time of his arrest. The Defendant
said that his case manager and his brother had called treatment programs on his behalf,
but he did not have insurance and none of the programs would come to the jail to perform
an assessment. The Defendant admitted that he knew where to make the restitution
payments but had not paid any.

       On cross-examination, the Defendant recalled telling the trial court at his first
sentencing hearing that he “wouldn’t be back, that [he] would change [his] life . . . [and]
“wouldn’t do [drugs] anymore.” He also recalled the trial court’s informing him that “if
[he] came back[,] [the court] would send [him] to the penitentiary . . . [and] enhance [his
sentence] to 12 years.” The Defendant admitted that it only took him eleven days to
violate his community corrections sentence. The Defendant asked the trial court for help
with his drug habit and said that most of his crimes were drug-related. He admitted that
he had prior convictions for simple possession, possession of drug paraphernalia, and
selling counterfeit drugs.



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       Upon questioning by the trial court, the Defendant admitted that he previously had
been placed on probation four to five times but had never successfully completed any
term of probation. He also admitted that he was on parole at the time of the offense in
this case. Asked about his work history, the forty-two-year-old Defendant said that he
had worked for “[m]aybe” ten years of his adult life and that he had been “locked up a
lot.”

        At the conclusion of the hearing, the trial court revoked the Defendant’s
community corrections sentence and resentenced him as a Range III, persistent offender
to ten years in the Department of Correction.

                                        ANALYSIS

       The Defendant argues that the trial court abused its discretion in revoking his
community corrections sentence and by imposing a ten-year sentence in confinement.
The Defendant asserts that the trial court’s reasoning for increasing his sentence to ten
years was improper because “there were no allegations of new charges or of any other
violations of the law.” In light of the evidence presented, we find this argument without
merit.

        The primary purpose of the Community Corrections Act of 1985 is to “[e]stablish
a policy within the state to punish selected, nonviolent felony offenders in front-end
community based alternatives to incarceration, thereby reserving secure confinement
facilities for violent felony offenders.” Tenn. Code Ann. § 40-36-103(1). The program
offers a flexible alternative beneficial to both the defendant and society. State v. Griffith,
787 S.W.2d 340, 342 (Tenn. 1990).

       Revocation of a community corrections sentence occurs upon finding by a
preponderance of the evidence that the defendant has violated the conditions of the
agreement. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). “The judgment of a trial
court in this regard will not be disturbed on appeal unless it appears that there has been an
abuse of discretion.” Id. For a reviewing court to find an abuse of discretion, it must be
shown that the record contains no substantial evidence to support the trial judge’s
conclusion. Id.

       When a defendant’s community corrections sentence is revoked, 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 . . . . The resentencing shall be conducted in compliance with § 40-
35-210.” Tenn. Code Ann. § 40-36-106(e)(4). A trial court is to consider the following

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when determining a defendant’s sentence and the appropriate combination of sentencing
alternatives:

             (1) The evidence, if any, received at the trial and the sentencing
      hearing;

             (2) The presentence report;

             (3) The principles of sentencing and arguments as to sentencing
      alternatives;

             (4) The nature and characteristics of the criminal conduct involved;

            (5) Evidence and information offered by the parties on the mitigating
      and enhancement factors set out in §§ 40-35-113 and 40-35-114;

             (6) Any statistical information provided by the administrative office
      of the courts as to sentencing practices for similar offenses in Tennessee;
      and

            (7) Any statement the defendant wishes to make in the defendant’s
      own behalf about sentencing.

Id. § 40-35-210(b).

       The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and the sentencing decision of the trial court will be upheld “so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” State v. Bise, 380 S.W.3d
682, 709-10 (Tenn. 2012). Accordingly, we review a trial court’s sentencing
determinations under an abuse of discretion standard, “granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707.

       At the resentencing hearing, the Defendant admitted that he had violated the
conditions of his community corrections sentence by testing positive for cocaine, not
reporting to his case officer, and failing to make restitution payments to the victim.
Additionally, the Defendant’s case officer testified that the Defendant had failed to
provide proof of employment, complete his community service work, or pay his
supervision fees, court costs, and restitution. Therefore, the record contains abundant
                                           -4-
evidence showing that the Defendant violated the terms of his community corrections
sentence.

       As a Range III, persistent offender convicted of a Class D felony, the Defendant’s
range of punishment was eight to twelve years. Tenn. Code Ann. § 40-35-112(c)(4). In
determining the length of the Defendant’s sentence, the trial court applied two
enhancement factors, the Defendant had a previous history criminal convictions or
behavior in addition to those necessary to establish the appropriate range, and the
Defendant committed the convicted offense while on parole, id. § 40-35-114(1), (13)(B),
and one mitigating factor, the Defendant’s conduct neither caused nor threatened serious
bodily injury, id. § 40-35-113(1). The trial court noted that the Defendant had “an
extremely lengthy criminal history that goes back into the early 90’s and has gathered
like a snowball, . . . as it rolls along, it just keeps getting bigger and bigger. The only
thing that has slowed it down at all is the stints that he’s had while incarcerated.” The
court found that the Defendant’s previous history, which included five felony and
numerous misdemeanor convictions, “in and of itself justifie[d] a sentence greater than
the minimum of his range.”

       The trial court further noted that within eleven days of the Defendant’s release
from jail, “he was already engaging in criminal activity again by possessing and using
cocaine.” By his own admission, the Defendant previously had been placed on probation
four to five times but never successfully completed it. Accordingly, we conclude that the
trial court did not abuse its discretion by revoking the Defendant’s community
corrections sentence, increasing his sentence to ten years, or ordering that it be served in
confinement.

                                     CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.

                                          ______________________________________
                                          ALAN E. GLENN, JUDGE




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