                                                                                         03/23/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs on February 27, 2018

            STATE OF TENNESSEE v. THOMAS LOUIS MOORE

               Appeal from the Criminal Court for Bradley County
            Nos. 14-CR-340 & 16-CR-372 Andrew M. Freiberg, Judge


                             No. E2017-01236-CCA-R3-CD



The Defendant, Thomas Louis Moore, appeals as of right from the Bradley County
Criminal Court’s revocation of his probation and order of incarceration for the remainder
of his ten-year sentence. The Defendant contends that the trial court abused its discretion
in ordering execution of his sentence. Following our review, we affirm the judgments of
the trial court.
 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Richard Hughes, District Public Defender; and Paul O. Moyle IV, Assistant District
Public Defender, for the appellant, Thomas Louis Moore.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Stephen D. Crump, District Attorney General; and Andrew Watts,
Assistant District Attorney General, for the appellee, State of Tennessee.



                                       OPINION
                             FACTUAL BACKGROUND

      On October 31, 2016, the Defendant pled guilty to aggravated assault, Tennessee
Code Annotated section 39-13-102, and burning of personal property, Tennessee Code
Annotated section 39-14-303. The Defendant received a sentence of ten years with the
sentence to be served on probation. According to the probation violation report, the
Defendant reported and complied with all the terms of his probation, including keeping
his mental health appointments, until the Defendant tested positive for cocaine on April
4, 2017.

        A violation of probation warrant was filed on April 11, 2017, alleging that the
Defendant violated his probation by using cocaine, and a revocation hearing was held on
May 16, 2017. At the revocation hearing, the Defendant admitted that he had smoked
crack cocaine. The Defendant testified that he had long suffered from schizophrenia with
auditory hallucinations, that he had multiple hospitalizations, and that he smoked crack
cocaine to “stop this madness going on in [his] brain.” The Defendant also testified that
he lived alone in his own apartment, which he had furnished himself after being released
from a group home. The Defendant testified that “the best place for you is at home under
your own environment” and that he was “trying to create [his] own environment [while]
still being positive to negative things [when they] come knocking on [his] door.”
Furthermore, the Defendant still attended all of his mental health treatment appointments
while living at his apartment.

       At the revocation hearing, the trial court called Camille McGill, a deputy clerk for
the Criminal Court for Bradley County, to inquire about the Defendant’s history of prior
convictions. Ms. McGill found records for three prior felony convictions: a conviction
for arson on August 8, 2005; a conviction for robbery on May 19, 1998; and a conviction
for delivery of cocaine on May 19, 1998. The court entered these records into evidence.

        The trial court next called Beverly Cameron, the court liaison for the probation
office. Ms. Cameron testified that this violation was considered a technical violation and
that technical violations based on a failed drug screen typically resulted in thirty to sixty
days of incarceration followed by reinstatement to probation. Ms. Cameron also testified
that each defendant was unique and not every defendant received the same sentences.
The court entered into evidence the lab reports confirming the Defendant’s April 4, 2017
drug screen as positive for cocaine.

       The trial court considered the Defendant’s “uniquely postured” mental health
including numerous mental health evaluations, treatments, and hospitalizations, as well as
the Defendant’s past criminal record as a Range II, multiple offender. The court saw a
pattern of violence, setting fires, and cocaine use. The court considered that the
Defendant was presently convicted of aggravated assault and previously convicted of
robbery; that the Defendant was presently convicted of burning personal property and
previously convicted of arson; and that the Defendant had presently tested positive for
cocaine and was previously convicted of delivering cocaine.

       The trial court weighed the foregoing factors and stated its reasoning:


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[I] really feel as though the first sentence was extraordinary because of [the
Defendant], because he has potential. And to be a multiple range offender,
which included violence and to get probation as a multiple Range II for
violent conduct, specifically the aggravated assault with the knife, was
really extraordinary. And unfortunately, there is a pattern that [the
Defendant] does engage in as [borne] out in Exhibit 2, robbery. He does
burn things. He’s convicted presently for personal property. But he was
convicted [f]or arson before. He was convicted of cocaine before. And
here we have him testing positive for cocaine again.

        And there is a . . . lengthy history of criminal conduct that has
resulted in restraint or incarceration. So when we look at who would be apt
to fall in, you’ve got an individual who’s done two separate stints in the
Department of Correction[:] [o]ne five[-]year, one seven[-]year. Convicted
of multiple offenses, including those of violence. And [Tennessee Code
Annotated section 40-35-102] talks about a person’s prior convictions shall
be considered as evidence. And anyone who is being sentenced for a third
or subsequent felony conviction involving separate periods of incarceration,
shall not be considered a favorable candidate for alternative sentence.
Now, despite that, he was afforded such. And my order and this [c]ourt’s
memory, we hoped to put him not where he’s getting his own apartment
and doing his own outpatient treatment, but the goal and the intent was to
try to get him somewhere where someone could look after him. That was
the reason for the extraordinary [relief]. It wasn’t to avoid . . .
incarceration. It was just to face the reality that maybe there would be a
different form of a secured facility, . . . or a residential facility, even if it
was not secured that would provide him the kind of structure that would
keep him from engaging in criminal activity.

       And while certainly there is a history of compliance . . . it’s not been
that long.

....

       Yeah, about six months on a [ten]-year sentence. . . . And I don’t
know of any less restrictive means than detention and incarceration that
will ensure justice, not just in this case, but . . . in light of his criminal
history, but also to protect the public and to protect [the Defendant], quite
honestly, from himself.

....

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              I just feel strongly that in this case the plan of supervision was
       altered from what the [c]ourt had hoped when it fashioned that [ten]-year
       [sentence]. I hoped it would have been a lot more secure than it turned out
       to be. And it really was extraordinary relief on the front end.

       The trial court revoked the probation and ordered the sentence into execution with
a note that the Defendant should be housed in a mental health facility. The Defendant
perfected a timely appeal.

                                       ANALYSIS

       The Defendant contends that the trial court abused its discretion in ordering his
sentence into execution because rehabilitative attempts had not recently been applied
unsuccessfully and because the trial court had been influenced by facts not in evidence.
The Defendant contends that the Defendant’s misdemeanor criminal history constituted
facts not in evidence and that the trial court improperly relied upon them in the statement,
“I didn’t get into his misdemeanor history. But everyone in this room knows who [the
Defendant] is.” The State responds that the record supports the trial court’s decision.

       A trial court may revoke a sentence of probation upon finding by a preponderance
of the evidence that the defendant has violated the conditions of his release. Tenn. Code
Ann. § 40-35-311(e). If the trial court revokes the probation, it has the right to “extend
the defendant’s period of probation supervision for any period not in excess of two (2)
years,” “commence the execution of the judgment as originally entered,” or “[r]esentence
the defendant for the remainder of the unexpired term to any community-based
alternative to incarceration.” Tenn. Code Ann. §§ 40-35-308(c), -35-311(e).

        The decision to revoke probations rests within the sound discretion of the trial
court. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); State v.
Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). An appellate court will uphold
a trial court’s decision to revoke probation absent an abuse of discretion. State v. Beard,
189 S.W.3d 730, 735 (Tenn. Crim. App. 2005); State v. Webb, 130 S.W.3d 799, 842
(Tenn. Crim. App. 2003) (quoting State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)).

        In order to have revoked the Defendant’s probation, the trial court needed only to
have found that the Defendant violated his probation by a preponderance of the evidence.
The Defendant does not dispute that he was in violation of the terms of his sentence by
testing positive for cocaine. Having found the Defendant in violation, it was within the
trial court’s discretion to order the Defendant to serve the remainder of his sentence in
confinement.


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        Furthermore, the trial court’s decision to order the Defendant to serve the
remainder of his sentence in confinement was supported by the trial court’s conclusion
that the Defendant needed more structured mental health treatment that he was unable to
provide for himself during probation and that less-restrictive means had recently been
applied unsuccessfully. The trial court found that the Defendant needed mental health
treatment that involved a “structure that would keep him from engaging in criminal
activity.” In addition, the trial court noted that the Defendant had violated the terms of
his probation only six months into a ten-year sentence. The trial court did not improperly
rely on facts not in evidence in ordering the sentence into execution. Although the trial
court referred to the Defendant’s misdemeanor record when stating, “I didn’t get into his
misdemeanor history. But everyone in this room knows who [the Defendant] is[,]” the
trial court did not rely on the misdemeanor record in reaching its conclusion. The trial
court weighed the Defendant’s felony record in evidence and the history of the
Defendant’s mental illness in making its ruling. Accordingly, we conclude that the trial
court did not abuse its discretion and that this issue is without merit. The Defendant is
not entitled to relief.

                                    CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.
                                                 _______________________________________

                                                 D. KELLY THOMAS, JR., JUDGE




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