                                                                                          12/13/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              September 19, 2017 Session

            STATE OF TENNESSEE v. MICHAEL LEE HOOPER
                    Appeal from the Circuit Court for Blount County
                       No. C-14211      David R. Duggan, Judge



                              No. E2016-02538-CCA-R3-CD
                        _____________________________

The Defendant, Michael Lee Hooper, stipulated that he violated the terms of his
probation by being arrested for possession of a Schedule II substance with the intent to
sell or deliver it and for maintaining a dwelling for controlled substance use or sales, for
stopping payment of his court costs, and for testing positive for cocaine. The trial court
found that the Defendant had violated the terms of his probation and ordered that he serve
his sentence in confinement. On appeal, the Defendant contends that the trial court erred
when it sentenced him to serve his sentence because this was his first violation in thirteen
years of probation. After review, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Robert W. White, Maryville, Tennessee, for the appellant, Michael Lee Hooper.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Matthew L. Dunn,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

        This case arises from the Defendant’s drug-related convictions in 2003. On June
30, 2003, the Defendant was convicted of possession of a Schedule II controlled with the
intent to sell or deliver, possession of a Schedule VI controlled substance with the intent
to sell or deliver, possession of a Schedule IV controlled substance with intent to sell or
deliver, and possession of drug paraphernalia. The trial court placed the Defendant on
probation for two consecutive eight-year terms. The first eight-year term expired on June
30, 2011, and the second eight-year term began. On March 22, 2016, almost thirteen
years after his probation began, the Defendant’s probation officer filed a probation
violation warrant. The warrant alleged that the Defendant had failed to obey the law by
being arrested for possession of a Schedule II controlled substance for resale within 1000
feet of a drug-free school zone and for maintaining a dwelling for controlled substance
sales or use. The warrant further alleged that the Defendant had tested positive for
cocaine on March 11, 2016 and that he had failed to pay court costs totaling $2,519.00.

        At the hearing on the probation violation, the Defendant stipulated to all of the
grounds for a material violation. Nathan Payne, an officer with the Blount County
Sheriff’s Office, testified that he went to the Defendant’s residence and executed a search
warrant, a result of which he found 2.6 grams of crack cocaine, a small amount of
marijuana, and drug paraphernalia. During the search, officers also found almost
$1,188.00, $1,000.00 of which was in the Defendant’s wallet. In the Defendant’s
bedroom, officers found digital scales, sandwich bags, copper screening, corner baggies
of cocaine, marijuana in a corner baggie, and a metal crack pipe. Officer Payne said that
his investigation revealed that the Defendant was unemployed at the time of his arrest.
The Defendant also told officers that multiple people came to his home often to use
illegal narcotics. Officer Payne said that the Defendant’s home was within 1000 feet of a
daycare center.

      During cross-examination, Officer Payne testified that he was unsure whether the
Defendant was receiving disability benefits at the time of his arrest. He also was unsure
whether the Defendant was renting out a room in his house and receiving payments from
another individual.

       Robert McGill, the Defendant’s probation officer, testified that the Defendant
violated his probation by being arrested for possession of a schedule II narcotic for resale
within 1,000 feet of a drug-free zone and for maintaining a residence for controlled
substance use or sales. The Defendant further violated his probation by testing positive
for cocaine on March 11, 2016, and failing to pay his court costs, totaling $2,519. Mr.
McGill said that the Defendant signed a form admitting to cocaine use after the March
2016 drug screen.

       During cross-examination, Mr. McGill testified that he had not actually met with
the Defendant because he had recently gained the Defendant as a supervisee after the
Defendant’s last probation officer retired. Mr. McGill agreed that his office began
supervising the Defendant in August 2007 and that the Defendant had not violated his
probation until March 22, 2016. Mr. McGill agreed that his file indicated that the
Defendant began receiving disability benefits in October 2014.

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       During redirect examination, Mr. McGill testified that the Defendant was paroled
in 2007 but that, at that time, there was a federal detainer against him. The federal
detainer expired May 18, 2009, and Mr. McGill’s office began supervising him that same
day.

       The Defendant testified that he was 58 years old at the time of the hearing. He
said that he served in the Navy from 1978 to 1984 and had been honorably discharged.
He remained at his last duty station until returning home to Tennessee in 1989. Upon his
return home, he worked with his father trucking boats. He also worked as a sheet metal
fabricator and a robotic welder before being found disabled in 2014 based on a low
platelet count.

       The Defendant said that he purchased a home in October 2013, shortly before
being laid off by his employer. The Defendant said that he was arrested in this case in
February 2016 and that he was smoking crack cocaine at the time of his arrest. He
explained that he had gotten behind on his mortgage payments, so he resumed his drug
use. He said that he began using cocaine “daily.”

         The Defendant said he had never participated in a drug rehabilitation program and
that, if released, he would attend such a program. If released, he would begin living with
his father.

       During cross-examination, the Defendant agreed that he had been charged with
possession of cocaine for resale, which was the same offense for which he was on
probation. The Defendant agreed that he was charged with possession of cocaine on
December 28, 2001, and that while he was out on bond in June 2002, police officers
executed a search warrant on his home. They found cocaine and several guns in his
home. The Defendant said he pled guilty to both cocaine charges. He was then
convicted in federal court on gun charges. The Defendant said that, while he was
incarcerated in both the state and federal prisons, he had been offered drug treatment but
he had also been offered drugs.

      Based upon this evidence, the trial court found:

      The Defendant has stipulated that he has engaged in a material violation of
      the terms of his probation based upon failing to obey the law as evidenced
      by being arrested and charged with possession of a schedule two for resale
      within 1,000 feet of a drug-free zone and maintaining a dwelling for
      controlled substance sales or use, using controlled substances as evidenced
      by testing positive for cocaine on March 11, 2016, and failing to pay his
      court costs. Now, I note that he’s not been found guilty of possession of a
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      schedule two for resale in a drug-free zone or maintaining a dwelling, but
      he has stipulated for purposes of the hearing today that he’s engaged in a
      material violation. And so the Court does not have to find that. It has been
      stipulated to. So, the issue is disposition based on this material violation.

              The Court certainly agrees with what the Defense has argued, that
      it’s not that [the Defendant] has done everything wrong. He’s done some
      things right. He had -- in terms of these records, these court files, he had a
      substantial period of compliance with probation and was employed until he
      went on disability and paid court costs until he went on disability. So, he
      did some things right, based on this record. What concerns the Court is that
      Exhibit 1 suggests -- and, again, I understand that he hasn’t been found
      guilty. He’s just stipulated to being arrested and charged at this point. But
      the State could have put its case on today with the standard of
      preponderance of the evidence, which was not necessary because of the
      stipulation. I think I can look to, for example, Exhibit 1, the inventory of
      items found in conjunction with the search warrant. And while some of this
      could be for personal use -- and for purposes of today’s hearing, I’ll even
      give him the benefit of the doubt on the U.S. currency. It could have come
      from drug sales, but it could have come from disability payments and rent
      payments. I’ll give him the benefit of the doubt on that today, because I
      don’t know otherwise. But while some of these items could have been used
      for personal use, some of these items indicate possession with intent to sell
      or deliver, including the sandwich bags, the digital scales, the empty corner
      baggies, the three corner baggies that contain cocaine, the corner baggie
      containing marijuana, the second set of digital scales. All of that is indicia
      of possession with intent to sell or deliver, which is of course what the
      Defendant pled guilty on June 30, 2003, in case 14211, possession of
      cocaine with intent to sell or deliver for which he received an eight-year
      sentence consecutive to his sentences in cases 14209 and 14210. In other
      words, it’s indicia that he’s continuing to do what he pled guilty to in 2003.

             Based upon this proof, the Court is going to revoke [the Defendant]
      to serve. I am going to give him, of course, all credit that he’s entitled to,
      which would be from March 30, 2016 through today, November 21, 2016.

It is from this judgment that the Defendant now appeals.

                                      II. Analysis

      On appeal, the Defendant contends that the trial court erred when it sentenced him
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to serve his sentence because this was his first violation in thirteen years of probation
because he spent more than a decade on probation without a violation. The State
counters that the Defendant is not entitled to relief because he stipulated to violating the
terms of his probation and because the record supports the trial court’s decision to revoke
his probation and order him to serve his sentence. We agree with the State.

       A trial court’s authority to revoke a suspended sentence is derived from Tennessee
Code Annotated section 40-35-310 (2014), which provides that the trial court possesses
the power “at any time within the maximum time which was directed and ordered by the
court for such suspension, . . . to revoke . . . such suspension” and cause the original
judgment to be put into effect. 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) (2014). “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, 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 (2014); 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. Shaffer, 45 S.W.3d 553,
554 (Tenn. 2001); 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.” Shaffer, 45 S.W.3d at 554. Further, 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.’” Id.
at 555 (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

        In this case, the Defendant admits that he violated his probation but suggests that
the trial court erred when it ordered him to serve his sentence in confinement. “The
determination of the proper consequence of a probation violation embodies a separate
exercise of discretion.” State v. Devon Alvon Wilson, No. M2017-00248-CCA-R3-CD,
2017 WL 2954689, at *2 (Tenn. Crim. App., at Knoxville, July 11, 2017) (citing State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007), no Tenn. R. App. P. 11
application filed; see also Hunter, 1 S.W.3d at 647. Case law establishes that “an
accused, already on probation, is not entitled to a second grant of probation or another
form of alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504,
1999 WL 61065, at *2 (Tenn. Crim. App., at Nashville, Feb. 10, 1999), perm. app.
denied (Tenn. June 28, 1999).
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       The record clearly reflects that the Defendant violated the terms of his probation.
The Defendant failed to comply with the requirements of his probation by not going to
failing a drug screen and by being charged with new offenses. The trial court acted
within its authority when it ordered the incarceration of the Defendant for the remainder
of the original sentence.

                                    III. Conclusion

     In accordance with the foregoing reasoning and authorities, we affirm the
judgment of the trial court.

                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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