                                                                                                             08/28/2019
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs August 21, 2019

              STATE OF TENNESSEE v. RANDY EARL EDWARDS

                   Appeal from the Criminal Court for Davidson County
                   No. 2009-C-2209 Angelita Blackshear Dalton, Judge


                                 No. M2018-02247-CCA-R3-CD


The defendant, Randy Earl Edwards, appeals the Davidson County Criminal Court’s
order revoking his probation and ordering him to serve the balance of his 10-year
sentence for the sale of less than .5 grams of cocaine in confinement. Discerning no
error, we affirm.

              Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Emma Rae Tennent (on appeal) and Patrick Hakes (at hearing), Assistant District Public
Defenders, for the appellant, Randy Earl Edwards.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

               The Davidson County Grand Jury charged the defendant with one count of
selling less than .5 grams of cocaine within 1000 feet of a drug-free school zone. The
defendant, a Range I offender, entered into a negotiated plea agreement in which he
pleaded guilty to the reduced charge of selling less than .5 grams of cocaine in exchange
for a Range II sentence of 10 years suspended to supervised probation.1


1
         The defendant’s agreed sentencing scheme was pursuant to Hicks v. State, in which our supreme
court held that “a knowing and voluntary guilty plea waives any irregularity as to offender classification
or release eligibility.” Hicks v. State, 945 S.W.2d 706 (Tenn. 1997).
               On October 13, 2011, the defendant conceded that he had violated the terms
of his probation, and the trial court sentenced him to time served and returned him to
probation with the added provision that the defendant complete an outpatient drug
treatment program. On July 26, 2012, the trial court again found the defendant in
violation of the terms of his probation and ordered split confinement of one-year’s
assignment to “RDAP” followed by a return to supervised probation. Again, on February
20, 2015, the defendant conceded that he had violated the terms of his probation, and the
trial court sentenced him to time served and returned him to probation, ordering him to
continue treatment at the Mental Health Cooperative. On April 8, 2016, the defendant
once again conceded that he had violated the terms of his probation, and the trial court
ordered him to serve 66 days followed by a return to probation with the added provision
that the defendant complete a batterer’s intervention program. On April 20, 2018, the
defendant conceded yet another violation of the terms of his probation, and the trial court
returned him to probation with the added provision that the defendant be released only to
E and C Housing to complete an outpatient program.

               On June 8, 2018, a probation violation warrant issued, alleging that the
defendant again violated the terms of his probation by getting “kicked out of halfway
house for missing curfew, leaving facility and not returning, and working while failing to
pay for housing.” An amended warrant issued on June 20, 2018, alleging that the
defendant violated the terms of his probation by garnering new arrests and failing drug
screens. The State elected to proceed only on the June 8 warrant, noting that the charges
giving rise to the amended warrant had been dismissed.

             At the December 6, 2018 revocation hearing, Teranesha Coleman, the
defendant’s probation supervisor, testified that she was notified that the defendant had
been kicked out of E and C Housing “for not paying his required payments even though
he was working” and for “fail[ing] to return back. He left and never came back.” Ms.
Coleman acknowledged that the defendant “tried to come back the following day.”

              The defendant testified that he had been detained for six months preceding
the hearing and that the detention had been “very challenging . . . mentally and
physically” but that he had participated in some programs during that time including a
creative writing program. The defendant stated that he was asked to leave E and C
Housing because he was unable to pay the full rent. Although he attempted to arrange for
a payment plan, they “didn’t agree to work anything out.” He vacated the facility when
he was ordered to leave. He acknowledged his prior probation violations but stated that
his “goal[] now is to make positive change that will impact my family and I.” He
expressed plans to go through transitional housing and drug treatment, noting that he had
been admitted to the Samaritan Recovery Center (“Samaritan”) halfway house. After
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completing drug treatment with Samaritan, he planned to move into Samaritan’s after-
care housing.

              The defendant stated that he was employed when he was ordered to leave E
and C Housing, but his hours had been cut from 30 hours per week to only 10 hours per
week. He explained that the rent at E and C Housing was $600 to $700 per month, and
he was not able to pay the rent after his work hours were reduced. He found additional
employment approximately one week after being asked to leave E and C Housing. The
defendant also said he had been accepted to Project Return, a program that helped
inmates find employment upon release from prison.

               Darrell Bradley, a client advocate with the Public Defender’s Office,
testified that he had been involved with the defendant’s case for seven to eight months
and had helped the defendant gain admittance to E and C Housing. He said that the
defendant had been kicked out of the program for failing to pay rent. Mr. Bradley
described the defendant as “a self-advocate,” “very resourceful,” and “a good man of
character.” He recalled the defendant’s reporting to him that he suffered from “PTSD”
and anxiety.

             During cross-examination, Mr. Bradley acknowledged that the defendant
was kicked out of E and C Housing for missing curfew in addition to failing to pay rent.

              The trial court noted that “incarcerating someone because they cannot
afford to pay for the halfway house would be unfair,” but the court found that the
defendant was asked to leave E and C Housing “because he didn’t follow the rules, not
necessarily the nonpayment of the rent, but there were other rules that he violated.” The
court found the defendant in violation of the terms of his probation and ordered him to
serve the balance of his sentence in confinement.

                In this timely appeal, the defendant argues that the trial court erred by
revoking his probation and ordering him to execute his sentence. The State contends that
the trial court did not err.

              The accepted appellate standard of review of a probation revocation is
abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State
v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d
436, 443 (Tenn. 2010). The 1989 Sentencing Act expresses a burden of proof for
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revocation cases: “If the trial judge finds that the defendant has violated the conditions of
probation and suspension by a preponderance of the evidence, the trial judge shall have
the right by order duly entered upon the minutes of the court to revoke the probation and
suspension of sentence . . . .” T.C.A. § 40-35-311(e)(1).

              Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation
and “[c]ause the defendant to commence the execution of the judgment as originally
entered, or otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the trial judge may
order the original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension, and that it be executed accordingly.” T.C.A. § 40-35-
310(a). In other words, “[t]he trial judge retains the discretionary authority to order the
defendant to serve the original sentence.” Reams, 265 S.W.3d at 430 (citing State v.
Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995)).

              In the present case, the record supports the trial court’s finding that the
defendant violated the terms of his probation. Ms. Coleman testified that she had
discovered that the defendant was kicked out of E and C Housing for leaving without
returning and for not paying his rent. Mr. Bradley acknowledged that he had discovered
that the defendant was kicked out of E and C Housing for missing curfew and for failing
to pay rent. Although the evidence in the present case is not overwhelming, this evidence
was sufficient to establish the defendant’s probation violations by a preponderance of the
evidence. Furthermore, the law is well-settled that the trial court does not abuse its
discretion by choosing incarceration from among the options available after finding that
the defendant has violated the terms of his probation.

              Accordingly, the judgment of the trial court is affirmed.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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