        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs October 13, 2015 at Knoxville

          STATE OF TENNESSEE v. KENNETH LEIGH McPEAK

               Appeal from the Circuit Court for Rutherford County
                        No. F-68844    David Bragg, Judge


             No. M2015-00089-CCA-R3-CD – Filed November 20, 2015


The defendant, Kenneth Leigh McPeak, appeals the revocation of the probationary
sentence imposed for his Rutherford County Circuit Court convictions of attempted rape.
Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Russell N. Perkins, Assistant District Public Defender, for the appellant, Kenneth Leigh
McPeak.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Jennings Jones, District Attorney General; and Shawn Puckett, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              On June 28, 2013, the defendant, originally charged with two counts of
rape, pleaded guilty to two counts of attempted rape, in exchange for two consecutive
eight-year sentences. Following the service of one year in confinement, the remainder of
the defendant’s 16-year sentence was to be served on supervised probation. As part of
his plea agreement, the defendant agreed to several special conditions, including
undergoing a psychosexual evaluation and following any recommendations, undergoing
sex offender treatment and taking responsibilty for his actions, registering as a sex
offender, and following all related directives of his probation officer. In addition, the
defendant agreed to “serve his sentence and waive application for suspended sentence
with any future violations.”
              On October 21, 2014, the defendant’s probation supervisor filed a probation
violation report alleging that the defendant had violated the terms of his probation by
failing to obtain employment and by failing to provide proof that he had sought
employment; by being dismissed from the sex offender treatment program for non-
compliance; and by failing to submit to a scheduled polygraph assessment.

              At the December 15, 2014 revocation hearing, Jesse Branscum, the
defendant’s probation supervisor, testified that the defendant first reported to the
probation office on May 5, 2014. Although the defendant claimed he had applied for
“about 10 jobs in the past few months,” the defendant never provided proof that he had
sought employment. The defendant failed to arrive as scheduled to complete a polygraph
examination, and he failed to attend required treatment classes.

               The defendant testified that he served one year in incarceration and that,
shortly after reporting for probation, he completed a job readiness class. The defendant
stated that he had applied to work at “[a]bout 15 or 18 different places” and that he had
given a handwritten list “of all the places [he] went to . . . and the date that [he] went” to
his probation officer. The defendant was unable to name any specific establishment with
which he had sought employement, but he stated that “some of it was stock, working in a
warehouse. Stuff like that.”

               With respect to the sexual offender treatment classes, the defendant testified
that he began attending class on October 2 and attended weekly until October 20. The
defendant explained that he failed to attend the October 20 class because the instructor
informed him that “he was going to drop me if I didn’t have the $175 for the lie detector
test, which I did not have at the time.” The defendant had requested to postpone the
polygraph examination, but the instructor denied his request. In response to questioning
by the trial court, the defendant admitted that, at the time he entered his guilty pleas to the
charges of attempted rape, he understood that any violation of the terms of his plea
agreement would result in service of his entire sentence in incarceration.

              The State called Mr. Branscum as a rebuttal witness. Mr. Branscum stated
that although a cost is associated with polygraph examinations, people on probation
“typically” would not be dismissed from the program due to nonpayment of the fee.
Without objection, the State introduced into evidence an assessment letter from Jack
Tracy, the defendant’s sexual offender treatment provider. Mr. Tracy’s conclusions
following his treatment of the defendant stated, in pertinent part, as follows:

              [The defendant] denies his offense of conviction and assumes
              no responsibility for his criminal sexual behavior. He blames
              the victim and his attorney for his current legal status. As a
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             result of his denial [the defendant] was placed in a pre-
             treatment group in order to assist him in the breaking of his
             denial. In pre-treatment [the defendant] was . . . required to
             give a credible statement of responsibility for his offense of
             conviction, complete a sexual history which is verified by a
             polygraph exam, and demonstrate his ability to understand
             and follow the rules of his supervision. [The defendant]
             began pre-treatment group on 8-2-14. In pre-treatment he
             continued to deny his offense and was asked to schedule a
             polygraph exam which he scheduled for 10-20-14. [The
             defendant] failed to show for his scheduled appointment and
             he missed his last scheduled pre-treatment group. [The
             defendant] was discharged from pre-treatment group on 10-
             20-14.

             At the conclusion of the hearing, the trial court concluded that the
defendant “failed to abide by the terms of his probation and failed to satisfactorily
complete the conditions of his probation.” The court commented:

                    The Court recognizes that [the defendant] has had
             difficulty getting a job. I have got a conflict in the testimony.
             [The defendant] says that he’s been to 10 to 18 places to seek
             employment, and that he’s given his probation officer a list of
             those places. The testimony is not supported by the testimony
             of the probation officer.

                    [The defendant] first appeared to probation in June. A
             violation warrant was filed in October. And it appears to the
             Court that [the defendant] now appears to complain that he
             entered a plea to the charge, but now he doesn’t want to
             accept responsibility for those actions that led up to his plea.

                     The Court – [the defendant] was not only before the
             Court when the conditions were announced. The Court
             recalls that it also went over those conditions with [the
             defendant] to some extent. And specifically advised [the
             defendant] if he understood that if he failed to comply with
             those conditions, he was going to be required to serve his
             entire sentence.



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                     The Court finds, based upon the testimony that it’s
              heard today, that [the defendant] has failed to comply with the
              conditions of his probation [and] orders that he serve his
              sentence as imposed with any applicable credit.

              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
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 original judgment
so rendered by the trial judge shall be in full force and effect from the date of the
revocation of such suspension.” Id. § 40-35-310.

               In the present case, the proof adduced at the revocation hearing showed that
the defendant violated the terms of his probation by failing to obtain employment or
provide proof that he had sought employment. Although the defendant maintained that
he had provided his probation officer with a list of the establishments to which he had
applied for jobs, he made no attempt to introduce into evidence a copy of that list at the
revocation hearing, and he was unable to name a single place from which he had sought
employment. In addition, the proof at the hearing established that the defendant violated
the terms of his probation by utterly failing to take responsibility for his actions, by
failing to comply with the terms of his treatment program, and by failing to take his
polygraph examination as scheduled. The record fully supports these determinations,
justifying the revocation of probation.

              We detect, however, an error in one of the judgment forms that requires
correction. From the record, it appears that the defendant received a sentence of 16 years
of split confinement: one year of incarceration followed by 15 years on supervised
probation. However, the judgment form in count two – the sentence of which is ordered
                                            -4-
to run consecutively to the sentence in count one – does not reflect this agreement. It
erroneously indicates that the defendant must serve one year in incarceration for this
sentence as well, which would lead to two years in incarceration followed by 14 years on
probation. On remand, we direct the trial court to correct the judgment form in count two
to effectuate the proper judgment and sentence.

              We hold that the trial court acted within its discretion, and we affirm the
order of revocation and the imposition of the original sentence.

                                                 _________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE




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