         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 26, 2005

             STATE OF TENNESSEE v. PRESTON MORRIS KISER

                    Appeal from the Criminal Court for Sullivan County
              Nos. S47,486; S47,497; S47,541; S47,726   R. Jerry Beck, Judge



                    No. E2004-02722-CCA-R3-CD - Filed August 10, 2005


The Defendant, Preston Kiser, pled guilty to multiple counts of passing worthless checks, theft under
$500, theft over $500, forgery, reckless driving, and driving on a suspended license. For these
offenses, the Defendant received an effective sentence of three years as a Range I, standard offender.
The Defendant was ordered to serve his sentence on community corrections. Following a subsequent
revocation hearing, the Defendant’s community corrections sentence was revoked and the trial court
ordered him to serve his sentence in confinement. The Defendant now appeals the trial court’s
revocation order. We affirm the judgments of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and J.C.
MCLIN , J., joined.

Terry Jordan, Assistant Public Defender, Bountville, Tennessee, for the appellant, Preston Morris
Kiser.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and James F. Goodwin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION


        Following his guilty pleas, the Defendant was ordered to serve his effective three-year
sentence in the residential community corrections program known as “Hay House.” Mr. Stewart
Canter testified at the revocation hearing that he was the Defendant’s supervisor at Hay House. As
the Defendant’s supervisor, Mr. Canter reviewed the written conditions of the Defendant’s sentence
with him, a copy of which the Defendant signed and a copy of which was admitted into evidence at
the revocation hearing. One of the conditions of the Defendant’s sentence was that he would “reside
at the John R. Hay House Residential/Correctional Treatment Facility as specifically directed by
either the Court, Probation Officer or Counselor.” Another condition was that the Defendant would
“follow all rules of the John R. Hay House Residential/Correctional Treatment Facility and /or the
Day Reporting Center.”

        Mr. Canter testified that the Defendant understood that he was to reside at the Hay House and
did so at the commencement of his sentence on March 12, 2004. Mr. Canter testified that, on April
6, 2004, the Defendant was placed on the “Phase 2 nonresidential phase” of the facility. During
“Phase 2,” the Defendant was no longer required to reside at the facility but was to report once a
week. The Defendant reported as required during his first week of Phase 2, missed reporting the
next two weeks, and then reported again the following week. At that time, May 14, 2004, the
Defendant was “ordered to report back into residence.” The Defendant did so. Mr. Canter stated
that the file reflected no phone calls from the Defendant during the two-week period that he did not
report.

        After resuming residence at the Hay House, the Defendant signed out to go to work on May
25, 2004, but “failed to return back to residence.” Mr. Canter then pursued a violation charge against
the Defendant.
        Mr. Canter stated that the Defendant called the facility twice on May 26th and was advised
both times that he needed to return immediately. The Defendant did not do so. The Defendant had
not been told that he could leave the facility.

        The Defendant testified. He stated that, during the two-week period that he failed to report
while on Phase 2, he called the facility each week and reported his whereabouts. The second week
that he missed a personal report, he was at a hospital with his “soon to be step-son,” and was told
over the phone that it was “fine.” After he was ordered back into residence, he stayed a week and
then “was under the assumption that [he] was released back on Phase 2, reporting back weekly.”

       The Defendant maintained that, when he left the facility on May 25th, he was under the
assumption that he had been placed back on Phase 2 of the program. The Defendant stated that he
formed this assumption after a conversation he had with Mr. Canter. However, the Defendant
acknowledged that, after he left on May 25th, he did not report back on a weekly basis as was
required under Phase 2. Indeed, he did not revisit the facility after he left on May 25th until his arrest
on August 19th for violating the terms of his release.

       The Defendant stated that he was self-employed in the construction business and that he had
made full restitution on the charges against him. He asked the trial court to return him to some form
of probation because he had a fiancé and children to support.

        After hearing this proof, the trial court found that the State proved “beyond a reasonable
doubt” that the Defendant had violated the terms of his sentence by failing to report as required. The
court found the Defendant’s testimony not credible and ordered his probation revoked and the
Defendant to serve his sentence in the Department of Correction.



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       The Defendant now appeals, arguing that the trial court abused its discretion in revoking his
Community Corrections sentence and ordering him to serve the remainder of his sentence in
confinement.

        A trial court has the discretion to revoke a community corrections sentence upon a finding
that the defendant has violated the conditions of the agreement. See Tenn. Code Ann. §
40-36-106(e)(4); State v. Harkins, 811 S.W.2d 79, 82 (Tenn.1991). The court may then resentence
the defendant to any appropriate sentencing alternative, including incarceration, for any period of
time up to the maximum provided for the offense committed, less any time actually served in any
community-based alternative to incarceration. See Tenn. Code Ann. § 40-36-106(e)(4); State v.
Samuels, 44 S.W.3d 489, 493 (Tenn. 2001).

        The proof of a community corrections violation need not be established beyond a reasonable
doubt; it is sufficient if it allows the trial court to make a conscientious and intelligent judgment.
See Harkins, 811 S.W.2d at 82-83. When revoking a community corrections sentence, the trial court
must place its findings of fact and the reasons for the revocation on the record. See Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973).
        The Tennessee Supreme Court has held that an abuse of discretion standard of appellate
review should be used to address the revocation of a Community Corrections sentence. See Harkins,
811 S.W.2d at 82-83. Before a reviewing court is warranted in finding an abuse of discretion in a
Community Corrections revocation, it must be established that the record contains no substantial
evidence to support the conclusion of the trial court that the defendant violated the terms of the
Community Corrections program. See id.

        We have no difficulty in concluding that the trial court committed no abuse of discretion in
finding that the Defendant violated the terms of his Community Corrections sentence. The
Defendant was aware of the Hay House requirements, both during the residential phase and the
subsequent reporting phase, and he failed to abide by the terms of either phase. The Defendant
acknowledged that he “should have” reported as required, but the evidence is undisputed that he did
not. The Defendant’s explanation was that he “assumed” certain conditions to be in place; however,
the Defendant failed to comply even with those assumed conditions. The Defendant expressed no
remorse at the revocation hearing for his repeated violations, but contended that he should again be
placed on some form of release because he had made restitution and because he needed to work to
support himself and his fiancé and her children. The trial court found the Defendant a less than
credible witness. The record supports the trial court’s decision to revoke the Defendant’s
Community Corrections sentence.

        Upon revoking the Defendant’s placement in the Community Corrections program, the trial
court had to determine which sentencing alternative was appropriate for the Defendant. The trial
court determined that the Defendant should be placed in confinement with the Tennessee Department
of Correction. We find no abuse of discretion in this ruling. The Defendant had demonstrated his
unwillingness to comply with the terms of a sentence involving release in the community. The
Defendant expressed no remorse for his repeated violations and, further, demonstrated himself to


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be a less than credible witness to the court. The Defendant’s conduct entitled the trial court to
conclude that the Defendant’s potential for rehabilitation was less than promising. Accordingly, we
conclude that the trial court did not abuse its discretion in ordering the Defendant to serve the
remainder of his sentence in confinement.

       The judgment of the trial court is affirmed.


                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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