        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs March 21, 2012

             STATE OF TENNESSEE v. CHELSY MARIE SMITH

           Direct Appeal from the Circuit Court for Montgomery County
             Nos. 40801238, 40801322     John H. Gasaway, III, Judge




                No. M2011-00427-CCA-R3-CD - Filed April 23, 2012


The Defendant, Chelsy Marie Smith, pled guilty to theft of property over $1,000, a Class
D felony, and aggravated robbery, a Class B felony. The trial court sentenced the
Defendant, as a standard offender, to an effective sentence of one year in the Department
of Correction followed by seven years on community corrections. After the Defendant’s
release, a violation warrant was issued, and, after a hearing, the trial court revoked the
Defendant’s community corrections sentence, finding that she had violated the terms of
her sentence and ordered her to serve the remainder of her eight-year sentence in
confinement. On appeal, the Defendant contends the trial court abused its discretion by
revoking her community corrections sentence and ordering her to serve the balance of her
sentence in prison. After a thorough review of the record and applicable law, 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 N ORMA M CG EE
O GLE and R OGER A. P AGE, JJ., joined.

B. Nathan Hunt, Clarksville, Tennessee, for the appellant, Chelsy Marie Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Arthur Bieber,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        I. Facts
        At the disposition hearing on January 11, 2011, the trial court recited the
background and procedural history of the Defendant’s cases. The Defendant entered
guilty pleas on August 13, 2009, for two separate cases: one for theft over $1,000 and
another for aggravated robbery. The Defendant received concurrent terms of two years
for the theft conviction and eight years for the aggravated robbery conviction, to be
served in community corrections after one year in the Department of Correction. At the
time of her guilty pleas, the Defendant had amassed over a year of confinement credit,
enabling her to immediately begin her sentence in community corrections. On December
14, 2009, a violation warrant was issued for the following reasons: the Defendant’s
failure to remain drug free, testing positive for cocaine on September 8, 2009, September
21, 2009, and December 2, 2009; her failure to verify attempts to gain employment for
four months; and her failure to conduct community service work while unemployed. The
Defendant admitted she violated the terms of her community corrections sentence and
waived a hearing on the violations. The trial court scheduled a disposition hearing for
August 30, 2010, but the Defendant failed to appear and a capias was issued for her
arrest. An amended violation warrant was issued, alleging the following additional
violations: the Defendant’s failure to report for fifty-six days; her failure to provide drug
screens as requested on June 22, 2010, June 24, 2010, June 25, 2010, and July 13, 2010; a
positive drug screen on June 16, 2010; and her failure to comply with the imposed
curfew, missing curfew checks on March 10, 2010, and June 25, 2010.

       Further, the trial court signed an Absconder Warrant on September 8, 2010,
ordering that the Defendant be held without bond pending a court appearance. The
warrant was served on October 28, 2010.

        At the disposition hearing, the Defendant waived a hearing on the amended
warrant, admitting the violations alleged therein. The Defendant requested that she be
reinstated in community corrections, after being held in jail for seventy-eight days
pending the hearing on the violation and amended violation warrants. The Defendant
testified at the hearing that she had a problem with crack cocaine and had completed a
twenty-eight day inpatient program for her addiction. She testified that, when she got out
of the inpatient program, she attended a drug and alcohol rehabilitation program at
Centerstone; however, she did not complete the program because her insurance lapsed.
During her most recent incarceration, she contacted another rehabilitation facility, The
Hope Center. The center refused to admit her to the program because of “all [the]
medical conditions” she had experienced during her pregnancy. She stated that, at the
time of the disposition hearing, she was three months and one week pregnant. Her due
date was July 14, 2011. She testified that, if the trial court would reinstate her community
corrections sentence, she would behave differently because this time there was “a child
involved.” She stated that she wanted to attend rehabilitation to address her problems,

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and she would live with her fiancé who was enrolled in a care program that would “put
[them] up in a hotel for two months” until they could get properly situated. She described
the care program as a program that rehabilitates inmates by assisting with job searches,
mental health services, transportation, and schooling. She testified that her only source of
income, other than food stamps, was her fiancé.

       The Defendant also testified that, until the filing of the warrants against her, she
attended the Daymar Institute for dental assistance training. She also applied for
disability while she was on community corrections. She testified that, if reinstated, she
would comply with any and all terms and conditions of her community corrections
sentence. She also requested the opportunity to attend rehabilitation programs.

       After the Defendant’s testimony, the trial court addressed the Defendant’s
violations, stating the following:

            That seems to tell me that the time that you were in jail back then had
       absolutely no [e]ffect on your intentions to continue to use cocaine if given
       the chance. . . . [Y]ou were cocaine free for over a year, after you walked
       out of this courtroom you went strai[gh]t back to using it within days, and
       continued to test positive. And basically you didn’t do one thing right; you
       didn’t do public service work, you didn’t prove you were seeking
       employment. I mean, you just didn’t do [it]; you blew it off.

       After taking the matter under advisement, the trial court denied the Defendant’s
request, revoked the community corrections sentence, and ordered the Defendant to serve
the remainder of her effective eight-year sentence in confinement. It is from this
judgment that the Defendant now appeals.

                                       II. Analysis

       The Defendant contends that the trial court erred when it revoked her community
corrections sentence and ordered her to serve the remainder of her sentence in the
Department of Correction. The State responds that the trial court properly revoked the
Defendant’s community corrections sentence. We agree with the State.

       A trial court may revoke a defendant’s community corrections sentence based on
the defendant’s non-compliance with the conditions of the community-based program.
T.C.A. § 40-36-106(e)(3)-(4) (2010). The trial court must hold a probation revocation
proceeding, during which “the trial judge may enter judgment upon the question of the
charges as the trial judge may deem right and proper under the evidence adduced before

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the trial judge.” T.C.A. § 40-35-311(d) (2010); see State v. Hill, 987 S.W.2d 867, 870-71
(Tenn. Crim. App. 1998) (If the defendant already began serving his sentence, the trial
judge could only revoke a community corrections sentence with a proper revocation
hearing and proper notice.) During the proceeding, the trial court must find proof of a
community corrections violation by a preponderance of the evidence, and either

       (A) Cause the defendant to commence the execution of the judgment as originally
       entered, or otherwise, in accordance with § 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.

T.C.A. § 40-35-311(e) (2010). Because Tennessee law permits the trial court to revoke
probation only upon finding, by preponderance of the evidence, that the defendant has
violated the terms of his or her probation, this Court will not disturb the trial court’s
determination absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.
2001); State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim. App. 2011), perm. app. denied
(Tenn. Oct. 18, 2011); State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007); see
also State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980) (adopting the
probations violation standard for a community corrections program violation due to the
sentences’ similar nature). A finding of abuse of discretion “‘reflects that the trial court’s
logic and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” Shaffer, 45 S.W.3d at 555
(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). We note that “‘[o]nly one
basis for revocation is necessary,’” and a defendant’s admission to a violation of the
conditions of release to the community corrections program is sufficient evidence for
such a revocation. State v. Joe Allen Brown, No. W2007-00693-CCA-R3-CD, 2007 WL
4462990, at *4 (Tenn. Crim. App., at Jackson, Dec. 20, 2007), no Tenn. R. App. P. 11
application filed (quoting State v. Alonzo Chatman, No. E2000-03123-CCA-R3-CD,
2001 WL 1173895, at *2 (Tenn. Crim. App., at Knoxville, Oct. 5, 2001), no Tenn. R.
App. P. 11 application filed); see also State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim.
App. 1999) (holding that a defendant’s concession of an act constituting violation of
probation constitutes substantial evidence of violation, and the trial court’s revocation
based thereon is not abuse of discretion).

       If the trial court revokes the defendant’s community corrections sentence, then, as
mentioned above, it may “resentence the defendant to any appropriate sentencing
alternative, including incarceration, for any period of time up to the maximum sentence

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provided for the offense committed, less any time actually served in the community-based
alternative to incarceration.” T.C.A. § 40-36-106(e)(4) (2010). Our supreme court has
previously stated that “the sentencing of a defendant to a community based alternative to
incarceration is not final, but is designed to provide a flexible alternative that can be of
benefit both to the defendant and to society.” State v. Griffith, 787 S.W.2d 340, 342
(Tenn. 1990). Moreover, a “defendant sentenced under the [Community Corrections Act]
has no legitimate expectation of finality in the severity of the sentence, but is placed on
notice by the Act itself that upon revocation of the sentence due to the conduct of the
defendant, a greater sentence may be imposed.” Id.            If the trial court chooses to
resentence a defendant to a more severe sentence, however, it may only do so after
conducting a new sentencing hearing in accordance with the Sentencing Act of 1989.
State v. Crook, 2 S.W.3d 238, 240 (Tenn. Crim. App. 1998). The trial court may not
arbitrarily increase the length of the sentence and must state on the record the reasons for
the new sentence. State v. Ervin, 939 S.W.2d 581, 583 (Tenn. Crim. App. 1996).

      In the present case, the trial court made the following findings when it revoked the
Defendant’s community corrections sentence:

       [I]f the Court put her back on a release status, given her history[,] the Court
       believes that it is . . . almost certain that she would continue to abuse
       controlled substances, her drug of choice being cocaine, and the Court was
       gravely concerned about the [e]ffect that that would have on her child.

       But[,] I cannot make a decision about what to do with you . . . based upon
       what may or may not happen with regard to [the] child. I’ve got to make a
       decision with regard to what the ends of justice require. Given the history
       of your conduct and your failure to comply with the terms and conditions of
       your community correction sentence, especially after you spent a year in jail
       and then after getting out of jail, that one year period did not seem to have
       any [e]ffect on - - on you in terms of motivating you to live your life in
       compliance with the terms and conditions of your sentence.

       [I]f you were not pregnant then the Court believes that the decision of the
       Court would be swift and certain, and that would be for you to serve out the
       balance of your sentence in confinement. The hesitation that I have comes
       with the fact that you are pregnant. But my concern about the child does
       not override the duty that this Court feels it is compelled to do, and that is to
       - - because of your history and the likelihood that you cannot comply with
       the terms and conditions on a release status, to order you to finish out this
       sentence in confinement at the Department of Correction.

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       In this case, the record supports the trial court’s finding that the Defendant violated
the terms of her community corrections sentence. The Defendant failed to abide by the
terms and conditions of her community corrections sentence. The Defendant admitted
that she tested positive for cocaine on three occasions while serving her alternative
sentence: September 9, 2009, September 21, 2009, and December 2, 2009. She also
admitted that she failed to verify and report attempts to secure employment for a four-
month period. Further, at her second violation of community corrections disposition
hearing, the Defendant admitted to the contents of the amended violation warrant, which
included the following: her failure to report, her failure to provide drug screenings, her
positive drug test for amphetamines, and her missed curfew checks. Therefore, the
evidence supports the trial court’s finding that the Defendant could not comply with the
terms and conditions of her release. As such, we conclude that the trial court’s revocation
of the Defendant’s community corrections sentence was not an abuse of discretion.

       In her argument, the Defendant relies on Tennessee Code Annotated section 40-
35-103, arguing that the sentence imposed by the trial court was not the least severe
measure necessary to achieve the purposes for which the sentence was imposed.
However, the Defendant’s reliance on this statute is misplaced. Only if the trial court had
imposed a sentence greater than that originally imposed, up to the maximum sentence
provided for the offense committed, would a new sentencing hearing be required. T.C.A.
§ 40-35-209(a) (2010). In other words, when the trial court chooses to resentence a
defendant to a more severe sentence, it may only do so after conducting a new sentencing
hearing in accordance with the Sentencing Act of 1989. State v. Crook, 2 S.W.3d 238,
240 (Tenn. Crim. App. 1998). The trial court may not arbitrarily increase the length of
the sentence and must state on the record the reasons for the new sentence. State v. Ervin,
939 S.W.2d 581, 583 (Tenn. Crim. App. 1996). The trial court in this case did not impose
a more severe sentence; rather, it required the Defendant to serve the remaining balance
of her original sentence in confinement.

       We find that the trial court appropriately ordered the Defendant to serve her
remaining sentence in confinement. The Defendant is not entitled to relief as to this
issue.

                                      III. Conclusion

        Based on the foregoing reasoning and authorities, we conclude the trial court
properly revoked the Defendant’s community corrections sentence and ordered the
remainder of the sentence to be served in confinement. As such, we affirm the judgment
of the trial court.

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      _________________________________
        ROBERT W. WEDEMEYER, JUDGE




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