                                                                                        06/22/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE


             STATE OF TENNESSEE v. BRIAN ALLEN SPEARS

                  Appeal from the Circuit Court for Sevier County
                   No. CR15034        Don R. Ash, Senior Judge
                     ___________________________________

                           No. E2017-01458-CCA-R3-CD
                       ___________________________________


The Defendant, Brian Allen Spears, appeals as of right from the Sevier County Circuit
Court’s judgment revoking his community corrections sentence and ordering the
Defendant to serve the remainder of his sentence in confinement. The Defendant argues
that the trial court abused its discretion in ordering the sentence served in confinement.
The State has filed a motion to affirm the trial court’s judgment pursuant to Rule 20 of
the Rules of the Tennessee Court of Criminal Appeals. Following our review, we
conclude that the State’s motion is well-taken and affirm the order of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Edward C. Miller, District Public Defender; and Aaron M. Kimsey, Assistant Public
Defender, Sevierville, Tennessee, for the appellant, Brian Allen Spears.

Herbert H. Slatery III, Attorney General and Reporter;, Renee W. Turner, Senior
Counsel; James B. Dunn, District Attorney General; and Ronald C. Newcomb, Assistant
District Attorney General, for the appellee, State of Tennessee.


                             MEMORANDUM OPINION

        On September 14, 2010, the Defendant entered an open plea to one count of sale
of .5 grams or more of cocaine. At sentencing, the trial court imposed a sentence of eight
years’ incarceration suspended after the service of one year of confinement with the
balance to be served on community corrections supervision. As additional conditions, the
Defendant was ordered to pay a $2,000 fine plus court costs, perform 50 hours of
community service, complete a 60-day inpatient treatment program and maintain
employment. On August 24, 2012, a violation warrant issued alleging that the Defendant
failed to report to his community corrections officer, complete his community service
hours, pay any fines or costs, or maintain employment. On June 21, 2017, the Defendant
pleaded guilty to the violations. The Defendant explained that he had experienced the
death of several close family members and had moved with his mother into his
grandmother’s home, but he admitted that he had failed to report for over four years. He
asked to be returned to community corrections supervision. The trial court found that the
Defendant had absconded and ordered the balance of the sentence to be served in
confinement.

       The Defendant contends that the trial court abused its discretion by ordering him
to serve the remainder of his sentence in confinement. The State argues that the record
supports the trial court’s judgment.

       The Tennessee Supreme Court has held that the same principles that apply in the
revocation of probation also apply in the revocation of community corrections. State v.
Harkins, 811 S.W.2d 79, 83 (Tenn. 1991). The revocation of community corrections, like
the revocation of probation, rests within the sound discretion of the trial court. Id. An
appellate court will uphold a trial court’s decision to revoke probation or community
corrections 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 Harkins, 811 S.W.2d at 82).

       The community corrections program was created as an alternative to incarceration
that provides flexibility and promotes accountability, while reducing the number of
“nonviolent felony offenders” in the state prison system. Tenn. Code Ann. § 40-36-104;
see also State v. Estep, 854 S.W.2d 124, 126-27 (Tenn. Crim. App. 1992) (“[T]he
community corrections sentence provides a desired degree of flexibility that may be both
beneficial to the defendant yet serve legitimate societal purposes.”). While the program
provides defendants with freedom that would otherwise be removed if the defendant had
been incarcerated, there are specific remedies available to the trial court to ensure that
those who fail to comply with the program are sufficiently penalized for their
noncompliance. See Tenn. Code Ann. § 40-36-106(e)(4).

       Pursuant to Tennessee Code Annotated section 40-35-311(e), the trial court is
required only to find that the violation of a community corrections sentence occurred by a
preponderance of the evidence. Once there is sufficient evidence to establish a violation
of a community corrections sentence, the trial court has the authority to revoke the
community corrections sentence. See Tenn. Code Ann. § 40-36-106(e). The trial court
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may then “resentence the defendant to any appropriate sentencing alternative, including
incarceration, for any period of time up to the maximum sentence provided for the
offense committed, less any time actually served in any community-based alternative to
incarceration.” Tenn. Code Ann. § 40-36-106(e)(4).

       The trial court needed only to find that a revocation of the Defendant’s sentence
was warranted by a preponderance of the evidence. The Defendant does not dispute that
he was in violation of the terms of his sentence and does not contest the trial court's
revocation of his community corrections sentence. The Defendant admitted that he did
not report to his community corrections officer for over four years. Having revoked the
Defendant’s community corrections sentence, it was within the trial court’s discretion to
order the Defendant to serve the remainder of his sentence in confinement. 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, we affirm the
judgment of the Sevier County Circuit Court pursuant to Rule 20 of the Rules of the
Tennessee Court of Criminal Appeals.



                                          ____________________________________
                                          D. KELLY THOMAS, JR., JUDGE




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