        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs June 12, 2012

                  STATE OF TENNESSEE v. LONNIE PAYNE

                    Appeal from the Shelby County Criminal Court
                         No. 08-07804     Chris Craft, Judge




                 No. W2010-02267-CCA-R3-CD - Filed June 20, 2012


Lonnie Payne (“the Defendant”) was convicted of violating a protective order, aggravated
assault, and aggravated criminal trespass. He received an effective sentence of five years
plus eleven months and twenty-nine days in the county workhouse. The Defendant filed a
petition seeking to suspend the remainder of his sentence. Following an evidentiary hearing,
the trial court denied the petition. The Defendant appeals, arguing that the trial court erred
when it denied his request for a suspended sentence. Upon review, we affirm the trial court’s
judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OGER A. P AGE, JJ., joined.

James P. DeRossitt, IV, (on appeal) and Jake Erwin (at hearing), Memphis, Tennessee, for
the appellant, Lonnie Payne.

Robert E. Cooper, Jr., Attorney General & Reporter; J. Ross Dyer, Senior Counsel; Amy P.
Weirich, District Attorney General; Marianne Bell, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                   MEMORANDUM OPINION 1

        Following a jury trial, the Defendant was convicted of violating a protective order,
aggravated assault, and aggravated criminal trespass. On January 19, 2010, the trial court
sentenced the Defendant to five years plus eleven months and twenty-nine days to be served
in the county workhouse. On May 27, 2010, the Defendant filed a pro se petition seeking
to reinstate probation and suspend the remainder of his sentence. The trial court held an
evidentiary hearing on the Defendant’s petition on August 24, 2010.

        The Defendant testified that while incarcerated he had completed an anger
management course, a twelve-step alcohol program, and a transitional services program. He
believed that by quitting drinking he could “see things clearer” and “didn’t get angry as
quick[ly].” He testified that, if released, he would stay away from the victim. He said that
he would “re-enter into society with a different attitude, with a different perspective of what
I want to do and how I’m going to live.” The Defendant planned to live with his mother and
get a job at an airport using his skills as a mechanic. He admitted on cross-examination that
he did not already have a job lined up, but he believed he could get one within two weeks of
being released. The Defendant also admitted that he should not have gone to the victim’s
house and that, by doing so, he violated a protective order. The Defendant, however,
continued to maintain that the victim invited him to her house and continued to deny that he
assaulted her.

          The victim, Karen Collier, testified that she did not believe the Defendant had
changed while incarcerated. She did not believe that he was remorseful, and she testified that
she was still very afraid of him. If the Defendant were released, Collier feared that he would
return to her house and that he might kill her.



       1
           Rule 20 of the Rules of this Court provides as follows:

               The Court, with the concurrence of all judges participating in the case, when an
       opinion would have no precedential value, may affirm the judgment or action of the trial
       court by memorandum opinion rather than by formal opinion, when:

                (1)(a) The judgment is rendered or the action is taken in a proceeding before the
       trial judge without a jury, and such judgment or action is not a determination of guilt, and
       the evidence does not preponderate against the finding of the trial judge, . . . and

                 (2) No error of law requiring a reversal of the judgment or action is apparent on the
       record.

       Tenn. Ct. Crim. App. R. 20.

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        At the conclusion of the hearing, the trial court denied the petition. In reaching its
decision, the trial court noted the Defendant’s lengthy criminal record and history of
probation violations. The court stated that the Defendant “just doesn’t listen to courts, [he]
just does what he wants to do.” The trial court also noted that when sentencing the
Defendant, it had previously found that confinement was necessary to protect society by
restraining a defendant who has a long history of criminal conduct. The trial court stated,
“[the Defendant], I find, is a dangerous man. And he needs to be incarcerated and locked up
as long as possible. Letting [the Defendant] out now might put this victim at risk. It also
might put whatever other woman he chooses to assault and torture at risk.”

      The Defendant appeals, arguing that the trial court erred in denying his petition to
suspend the remainder of his sentence.

        Initially, we note that neither the Defendant’s petition nor his appellate brief cite the
statute or rule under which he sought relief in the trial court. From our review, we agree with
the State that the Defendant’s petition must have been brought under Tennessee Code
Annotated section 41-1-605 (2006), as that statute provides the only apparent avenue for
modification of the Defendant’s sentence.2 Section 41-1-605(a) provides that a trial court
retains jurisdiction over a defendant sentenced to a regional workhouse during the term of
the sentence “and may modify or reduce the sentence or may place the defendant on
probation supervision where otherwise eligible.”

       We review the trial court’s decision whether to grant relief pursuant to Tennessee
Code Annotated section 41-1-605 under an abuse of discretion standard. State v. Teague,
No. M2007-01646-CCA-R3-CD, 2008 WL 3850511, at *5 (Tenn. Crim. App. Aug. 19,
2008) (citing State v. Ruiz, 204 S.W.3d 772, 777-78 (Tenn. 2006)).3 This Court will find
an abuse of discretion “only when the trial court has applied an incorrect legal standard, or
has reached a decision which is illogical or unreasonable and causes an injustice to the party
complaining.” Ruiz, 204 S.W.3d at 778.

       We have reviewed the record and conclude that the record amply supports the trial
court’s findings in this case. Therefore, the trial court clearly did not abuse its discretion in
denying the Defendant’s petition to suspend his sentence. Accordingly, we affirm the trial

        2
         The Defendant was not sentenced to split confinement, nor did he petition the trial court for relief
within 120 days of his sentence being imposed. Consequently, neither Tennessee Code Annotated section
40-35-306(c), nor Tennessee Rule of Criminal Procedure 35(a) apply to the facts of this case.
        3
          The Defendant urges on appeal that we review the trial court’s sentence under the de novo standard
of review we utilize in reviewing a sentence on direct appeal. This argument ignores controlling precedent
on this issue.

                                                    -3-
court’s denial of the Petitioner’s motion to suspend the remainder of his sentence pursuant
to Rule 20 of the Rules of the Court of Criminal Appeals.




                                                  _________________________
                                                  JEFFREY S. BIVINS, JUDGE




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