        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 24, 2010

                STATE OF TENNESSEE v. HYMAN E. MILLER

                   Appeal from the Circuit Court for Rutherford County
                            No. F-59704 David Bragg, Judge



                   No. M2009-01204-CCA-R3-CD - Filed April 21, 2010


Appellant, Hyman E. Miller, pled guilty in Rutherford County to vehicular assault and
second offense driving under the influence (“DUI”). Appellant was sentenced to eight years
for the vehicular assault conviction. That sentence was suspended and the trial court ordered
Appellant placed on supervised probation for a period of ten years. Appellant was sentenced
to eleven months and twenty-nine days for the second offense DUI conviction. He received
pre-trial jail credit of seven months and twenty-two days. The trial court ordered Appellant
to serve this sentence on supervised probation for a period of four months and twenty-two
days. Subsequently, a probation violation warrant was filed against Appellant. The trial
court revoked probation, ordering Appellant to serve sixty days in jail before being reinstated
to probation. A second violation of probation warrant was filed against Appellant, alleging
that Appellant had violated his probation in various ways. After a hearing, the trial court
revoked Appellant’s probation and ordered him to serve his sentence in incarceration.
Appellant appeals the trial court’s revocation of probation. Because we determine that the
trial court did not abuse its discretion in revoking Appellant’s probation, the judgment of the
trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

Brion J. Payne, Murfreesboro, Tennessee, for the appellant, Hyman E. Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; William C. Whitesell, Jr., District Attorney General, and Trevor Lynch,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       On March 22, 2007, Appellant pled guilty to one count of vehicular assault, a Class
D felony, and one count of second offense DUI. The plea agreement specified that Appellant
would receive an eight-year sentence for the vehicular assault conviction and that the
sentence was to be suspended and Appellant placed on ten years of supervised probation.
For the second offense DUI conviction, Appellant received a sentence of eleven months and
twenty-nine days, to be served on supervised probation for a period of four months and
twenty-two days. Various conditions were placed on Appellant’s probation, including that
he: (1) maintain good and lawful behavior; (2) not use alcohol; (3) submit to random
drug/alcohol screens; and (4) attend alcohol safety school and an alcohol rehabilitation
program.

        On June 6, 2008, the trial court issued a violation of probation order in Appellant’s
case. The order specified that it was an “Agreed Revocation, based on the grounds specified
in the warrant.” As a result of the revocation, Appellant was ordered to serve sixty days in
jail prior to being reinstated to probation. The terms and conditions of Appellant’s probation
remained the same, with the exception that Appellant was required to “complete outpatient
treatment at direction of probation officer and provide proof of treatment to probation
officer.”

      On November 12, 2008, a second probation violation warrant was filed against
Appellant. The warrant specified that it was a “technical” violation. Specifically, the
warrant specified that Appellant:

       [V]iolated Rule 6 of his probation in that [Appellant] failed to report to his
       Probation Officer as instructed. [Appellant] was transferred to Memphis, TN
       on 8/29/2008 and missed his scheduled appointments on 9/11/2008 at 11:30
       a.m., 9/18/2008 at 3:30 p.m. and 10/23/2008 at 3:00 p.m. This Officer spoke
       with [Appellant] by phone on 9/11/2008, 9/15/2008, 10/15/2008 and
       10/22/2008; on each occasion [Appellant] was instructed to report to this
       Officer.

       [Appellant] violated Rule 7 of his probation in that [Appellant] failed to report
       to his probation officer and submit to drug screens as directed.




                                              -2-
       [Appellant] violated Rule 9 of his probation in that [Appellant] failed to verify
       his eligibility for Social Security Benefits and owes $90.00 at the writing of
       the probation violation report to the Supervision and Criminal Injuries Fund.
       Additionally, [Appellant] failed to verify payments in the amount of $75.00
       each month to pay imposed court costs.

       [Appellant] violated Rule 10 of his probation in that [Appellant] failed to
       verify his compliance with the special conditions. [Appellant] has not verified
       he completed the Alcohol Rehab and Alcohol Safety School.

       Appellant failed to appear at the revocation hearing that was scheduled for January
15, 2009. The trial court issued a capias for Appellant’s arrest. Appellant was subsequently
arrested.

       At the hearing on May 8, 2009, Appellant testified that he was on probation for a
vehicular assault conviction. Appellant acknowledged several prior convictions, including
two counts of facilitation of aggravated burglary and driving without a license. Appellant
also admitted that he had previously violated his current probation but was able to work out
an agreement to serve some time before being returned to probation.

       Appellant explained that after the first violation, Appellant sought and was awarded
a transfer of his supervision to Memphis. This occurred in August of 2008. Appellant
claimed that his probation officer “forced” him to go to treatment and that, in his opinion,
Lakeside Behavioral Health System in Memphis was the place where he needed treatment.
According to Appellant, he was admitted on February 6, 2009, for inpatient treatment.
Appellant remained in their care for approximately two weeks. Appellant also claimed that
he was in Methodist Behavioral treatment center in Memphis several times. Appellant did
not produce proof that he had completed treatment, but stated that he had “a document
somewhere that shows where the insurance paid one of them.”

       Appellant admitted that he missed one of his report dates because of a doctor’s
appointment. Specifically relating to September 11, 2008, Appellant explained that it could
have been “one of the days” that he had a doctor’s appointment and had to “go by TennCare
van to go to doctor appointments.” Appellant then provided the court with a copy of a
discharge summary from Methodist Healthcare that stated he had been in inpatient treatment
from September 14, 2008, to September 25, 2008. The trial court gave Appellant the
opportunity at that time to continue the hearing to obtain additional medical proof. Appellant
insisted that he wanted to go forward with the hearing “due to his health.”




                                              -3-
       Appellant remembered telephoning his probation officer several times, specifically
on September 11, September 15, October 15, and October 22. Appellant claimed that the
probation officer was “rude” and “never really worked with [him].” Appellant admitted that
he did not contact the probation officer after October 22.

       Appellant explained that he had been physically disabled for the past eighteen years
due to a gun shot wound in the hip. After surgery, Appellant got an infection and was unable
to have a hip transplant. Appellant was confined to a wheelchair at the time of the hearing
and was again suffering from an infection in his hip. Appellant reported that he had a “dual
diagnosis” of mental health issues, including posttraumatic stress disorder, bipolar disorder,
“ETSD,” clinical depression, and anxiety. Appellant admitted that he also abused drugs and
alcohol. According to Appellant, the failure to report stemmed from his medical condition.

        Donna Poindexter, an employee of the Tennessee Board of Probation and Parole,
testified at the hearing. Appellant was a part of her caseload, but she had never met with
Appellant because he had never reported as instructed. Ms. Poindexter reported that
Appellant did not attend the September 11, 2008 meeting, but he called and told her that he
was not feeling well. The meeting was rescheduled to September 18, 2008. On September
15, 2008, Appellant again called Ms. Poindexter and explained that he would not report on
the 18th . Ms. Poindexter gave Appellant a warning and rescheduled the appointment for
October 23, 2008. On the day prior to the appointment, Appellant called and said he was
being evicted and would come to the office after he appeared in court with regard to the
eviction. Appellant never showed up and never provided Ms. Poindexter with medical
documentation to excuse his missed appointments. As a result of his failure to appear for
multiple appointments, Ms. Poindexter filed the violation of probation warrant against
Appellant on October 28, 2008.

       On cross-examination, Appellant admitted the he did not report to his probation
officer from November 2008, to February 2009.

       At the conclusion of the hearing, the trial court determined that Appellant had violated
probation, finding that it “heard factual evidence sufficient to support the violation” and that
Appellant “conceded the violation.” As a result, the trial court revoked probation and
ordered Appellant to serve his original sentence in incarceration.

       Appellant filed a timely notice of appeal.




                                              -4-
                                              Analysis

        On appeal, Appellant claims that “[t]he judgment of the Court makes it clear that the
Judge relied substantially on the assertion that [Appellant] had acknowledged that he had
violated his probation based on the grounds specified in the warrant and that [Appellant] had
conceded the violation.” Specifically, Appellant contends that the record is “silent”
regarding Appellant’s admission or concession of the violation. The State, on the other hand,
insists that the trial court did not abuse its discretion in ordering Appellant to serve his
original sentence in incarceration based on a violation of the terms of his probation.

        A trial court may revoke probation and order the imposition of the original sentence upon a
finding by a preponderance of the evidence that the person has violated a condition of probation.
T.C.A. §§ 40-35-310 & -311. After finding a violation of probation and determining that probation
should be revoked, a trial judge can: (1) order the defendant to serve the sentence in incarceration;
(2) cause execution of the judgment as it was originally entered, or, in other words, begin the
probationary sentence anew; or (3) extend the probationary period for up to two years. See T.C.A.
§§ 40-35-308(C) & -311(e); State v. Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). The decision to
revoke probation rests within the sound discretion of the trial court. State v. Mitchell, 810 S.W.2d
733, 735 (Tenn. Crim. App. 1991). Revocation of probation and a community corrections sentence
is subject to an abuse of discretion standard of review, rather than a de novo standard. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown if the record is devoid
of substantial evidence to support the conclusion that a violation of probation has occurred. Id. The
evidence at the revocation hearing need only show that the trial court exercised a conscientious and
intelligent judgment in making its decision. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App.
1995). Further, “[i]t is well established that trial courts have broad discretion in determining the
admissibility of evidence, and their rulings will not be reversed absent an abuse of that discretion.”
State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Moreover, a defendant who is already on
probation is not entitled to an additional grant of probation or some other form of alternative
sentencing. State v. James Cravens, No. M2002-01216-CCA-R3-CD, 2003 WL 22282174, at *2
(Tenn. Crim. App., at Nashville, Oct. 2, 2003), perm. app. denied, (Tenn. Mar. 8, 2004).

        In the case herein, Appellant acknowledged at the hearing that he had failed to report to his
probation officer between the months of November and February. Appellant blamed his failure to
report on his medical condition. In addition, Ms. Poindexter confirmed that Appellant had missed
numerous meetings and had never reported to her as instructed. In fact, Appellant did not contact
Ms. Poindexter at all between October 23, 2008, and the date of his arrest in March of 2009.

       It is well established that during the term of a defendant’s probation, the sentencing court
may modify the conditions of probation. See T.C.A. § 40-35-308(a)(1). However, the sentencing
court may not make the conditions of supervision more onerous than originally imposed, except
pursuant to a revocation proceeding as provided by law. See id. § 40-35-308(b). Finally, at the
conclusion of a probation revocation hearing, the sentencing court has the authority to extend a
period of probation for an additional time not to exceed two years. See id. § 40-35-308(C).

                                                 -5-
        In State v. Merriweather, 34 S.W.3d 882 (Tenn. Crim. App. 2000), the trial court ordered
that the defendant’s probation be extended indefinitely until restitution and costs were paid in full.
Id. at 882. The trial court did this without a hearing on the matter. Id. This Court concluded that
the defendant’s due process rights had been violated because the conditions of the defendant’s
probation were made more onerous than originally imposed, and the defendant was not afforded a
revocation hearing or the assistance of counsel. See id. at 885. This Court thus held that the
extension of probation was null and void. See id.

         The trial court in this case followed standard procedure for revoking Appellant’s probation.
Appellant had an opportunity to be heard at a hearing. The trial court even offered to allow
Appellant to continue the hearing to secure additional paperwork to substantiate his claim that his
medical condition led to his failure to report to the probation office. Appellant was represented by
counsel and was given the opportunity to cross-examine the State’s witness. The trial court placed
its findings on the record and explained its decision for the revocation of probation. Moreover, the
trial court ordered Appellant to serve his original sentence in incarceration. The trial court did not
choose to extend the original sentence, thus making it more onerous. The trial court did not abuse
its discretion. Appellant’s reliance on Merriweather is misplaced. Appellant is not entitled to relief
on this issue.

                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




                                                 -6-
