                                                                                          04/24/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 18, 2018

         STATE OF TENNESSEE v. CHOLLY DEMARCUS HARRIS

                  Appeal from the Criminal Court for Knox County
                   Nos. 92103, 95667 Steven Wayne Sword, Judge
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                           No. E2018-00534-CCA-R3-CD
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The Knox County Criminal Court revoked the probationary sentences of the Appellant,
Cholly Demarcus Harris, and ordered that he serve the balance of his effective eleven-
year sentence in the Tennessee Department of Correction (TDOC). On appeal, the
Appellant acknowledges that he violated his probation but contends that the trial court
abused its discretion by ordering that he serve his sentences in confinement. Upon
review, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and D. KELLY THOMAS, JR., JJ., joined.

Jonathan Harwell (on appeal) and Julia Gautreau (at trial), Knoxville, Tennessee, for the
appellant, Cholly Demarcus Harris.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; Charme P. Allen, District Attorney General; and Kenneth F.
Irvine, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On July 9, 2009, the Appellant was charged by information in case number 92103
with possession of less than one-half gram of cocaine with intent to sell, a Class C felony.
That same day, he pled guilty to the charge and was sentenced as a Range I, standard
offender to three years in the TDOC. On September 17, 2009, the trial court held a
hearing, suspended the sentence, and placed the Appellant on probation.
       On June 30, 2010, a probation violation affidavit was filed, alleging that the
Appellant violated his probation by (1) being arrested on June 15, 2010, for the
manufacture, sale, and delivery of Schedule II and VI drugs, possession of a weapon
during the commission of a felony, and possession of drug paraphernalia; (2) being in
possession of a handgun at the time of his arrest; and (3) being in possession of illegal
drugs at the time of his arrest. The trial court issued an arrest warrant, and the Appellant
was taken into custody. On September 10, 2010, the trial court revoked his probation and
placed him in the Community Alternative to Prison Program (CAPP) for three years. A
condition to CAPP was that he live at Steps House.

        On September 30, 2010, the Appellant was charged by information in case number
95667 with one count of possession of less than one-half gram of cocaine with intent to
sell, a Class C felony, and one count of possession of not less than one-half ounce but not
more than ten pounds of marijuana with intent to sell, a Class E felony.1 That same day,
he pled guilty to the charges and was sentenced as a Range II, multiple offender to
concurrent sentences of eight and two years, respectively. He was to serve the effective
eight-year sentence in CAPP consecutively to his three-year sentence in case number
92103.

       On March 8, 2012, a violation affidavit was filed in both cases, alleging that the
Appellant violated CAPP’s rules and regulations by (1) using illegal narcotics; (2) testing
positive for synthetic marijuana; (3) being dishonest with his case manager by denying
his use of synthetic marijuana and by claiming he had been robbed of money he had just
withdrawn from the bank; (4) fraternizing with people “who use, deal or traffic” illegal
substances; (5) missing curfew calls on October 8, 2011, January 25, 2012, and February
5, 2012; (6) being $856 in arrears on court costs; and (7) being $40 in arrears on CAPP
fees. On May 9, 2012, the Appellant’s case manager further alleged that he violated
CAPP by (8) leading her to believe he was living at Knoxville Area Rescue Ministries
when was never registered there; (9) not being truthful about his residence, which made
her unable to verify he was at his residence by curfew; and (10) being discharged from
the Steps House program on April 28, 2012, for leaving the halfway house without
permission. The trial court issued an arrest warrant. On July 13, 2012, the trial court
revoked the Appellant’s placement in CAPP and ordered that he serve the balance of his
sentences in case numbers 92103 and 95667 in the TDOC.

       The Appellant completed a boot camp program while he was in prison, and he was
released on enhanced probation on May 17, 2013. On January 10, 2014, he was
transferred from enhanced probation to regular probation. On October 3, 2017, his
probation officer filed a probation violation affidavit, alleging that the Appellant violated

       1
           The information alleged that the offenses occurred on June 15, 2010.
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probation by (1) being arrested on September 22, 2017, for driving on a suspended
license, simple possession, and failure to yield right of way; (2) not reporting his arrest to
his probation officer; and (3) possessing .4 grams of a white, powdery substance at the
time of his arrest. An arrest warrant was issued.

       No witnesses testified at the Appellant’s February 2018 revocation hearing. The
Appellant acknowledged violating his probation but requested that the trial court place
him back on probation. Defense counsel argued that while the Appellant’s “history of
supervision leaves much to be desired,” the Appellant had made “very positive changes”
by self-reporting to the Comprehensive Community Services (CCS) program, completing
the program, and calling defense counsel “all the time” to let counsel know “how things
were going and how he was progressing.” Defense counsel introduced the Appellant’s
CCS Discharge Summary into evidence. According to the summary, the Appellant’s
condition at the time of his admission was “poor,” but his condition at the time of his
discharge was “good.” The summary stated that the Appellant completed a twenty-eight-
day treatment program, that he participated in group lectures and seminars, completed
treatment plans, completed an aftercare plan that included attending Narcotics
Anonymous meetings, and received positive reports for volunteering his time to help
around the CCS facility. Defense counsel also introduced into evidence a letter from the
Appellant’s probation officer, stating that he would accept the Appellant back on
probation. The State opposed probation, noting that this was the Appellant’s third
probation revocation, and argued that he had “earn[ed] his way” to prison.

       The trial court stated that it had spent “a lot” of time reviewing the Appellant’s
case and that “it was the history that made me believe that he is not a suitable candidate
for probation anymore.” The trial court said that from the time of the Appellant’s initial
guilty plea in 2009, “[h]e’s been in revocation status every year until he got revoked and
sent to the penitentiary and came out on boot camp, and what really was the last straw for
me is these last two arrests.” The court stated that it was going to give him “credit” and
that the Appellant had “over 500 days jail service with 476 on Capp time. . . . [T]hat’s
how long we’ve been working to try to make this work, and I’m just out of patience[.]”
The Appellant stated on his own behalf that he had completed “the treatment” and that he
thought he deserved “one more chance.” The trial court responded that the Appellant had
had “eight years of one more chances,” revoked his probation, and ordered that he serve
the balance of his sentences in the TDOC.

                                        II. Analysis

       The Appellant does not contest that he violated his probation. However, he
contends that the trial court abused its discretion by ordering that he serve the balance of
his effective eleven-year sentence in confinement because his latest violations were
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“relatively minor” and came after several years of successful probation and because he
completed a one-month treatment program “as a way of showing his rehabilitative
potential.” He asserts that the trial court’s decision was “arbitrary and unreasonable” and
that “the only logical and reasonable outcome” would be to place him back on probation.
The State argues that the trial court did not err. We agree with the State.

       Upon finding by a preponderance of the evidence that an appellant has violated the
terms of his probation, a trial court is authorized to order the appellant to serve the
balance of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310, -
311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests in
the sound discretion of the trial court and will not be overturned by this court absent an
abuse of that discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995);
see State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013) (concluding that abuse of
discretion with a presumption of reasonableness is the appropriate standard of appellate
review for all sentencing decisions). “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 Appellant admits that he violated his probation. This court has repeatedly
cautioned that “an accused, already on probation, is not entitled to a second grant of
probation or another form of alternative sentencing.” State v. Jeffrey A. Warfield, No.
01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. at Nashville, Feb. 10,
1999); see State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL
242351, at *2 (Tenn. Crim. App. at Nashville, Feb. 11, 2002). This was the Appellant’s
third probation violation. Additionally, at the time of the revocation hearing, he was still
serving a three-year sentence that he had received more than eight years previously
because he could not abide by the terms of alternative sentencing. In our view, the trial
court was more than patient with Appellant. Accordingly, we have no hesitation in
concluding that the trial court did not err by ordering that he serve the balance of his
sentences in confinement.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE

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