         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 21, 2001

                 STATE OF TENNESSEE v. RICKY D. GARDNER

                      Appeal from the Circuit Court for Loudon County
                      Nos. 2701, 2719, 2720A   E. Eugene Eblen, Judge


                                 No. E2000-02481-CCA-R3-CD
                                        October 1, 2001

The defendant, Ricky D. Gardner, was convicted of one count of vandalism over $500; one count
of vandalism over $1,000; three counts of burglary; one count of burglary of a motor vehicle; three
counts of theft over $1,000; two counts of theft under $500; and one count of theft over $500. The
trial court imposed an effective six-year sentence to be served in a community corrections program.
Later, the trial court revoked the alternative sentence and ordered the defendant to serve the balance
of his sentence in the Department of Correction. In this appeal of right, the defendant argues that
the trial court erred by ordering revocation. The judgments are affirmed.

                  Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

William B. McKenzie, Decatur, Tennessee, for the appellant, Ricky D. Gardner.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General;
J. Scott McCluen, District Attorney General; and Roger Delp, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

        In 1996, the defendant entered guilty pleas in three related cases to the following offenses:

               Offense                                        Sentence

               Case No. 2701:

               Theft over $1,000                              2 years
               Vandalism over $500                            1 year
               Case No. 2719:

               Burglary                                        2 years
               Theft over $500                                 1 year


               Case No. 2720A:

               Burglary                                        4 years
               Theft over $1,000                               2 years
               Theft under $500                                11 months, 29 days
               Vandalism over $1,000                           2 years
               Burglary of a Motor Vehicle                     1 year
               Theft under $500                                11 months, 29 days
               Theft over $1,000                               2 years

The trial court imposed an effective sentence of six years, which the defendant does not dispute, to
be served in a community corrections program.

         In 1998, the defendant tested positive for marijuana. The state filed a community corrections
violation warrant, alleging that the defendant had failed to report, failed to pay court costs and
restitution, and failed to complete court-ordered community service. At the revocation hearing,
Ralph Lamb, the defendant's community corrections supervisor, testified that the defendant did not
report to the agency for approximately one and a half years. According to Lamb, the defendant had
paid only $80 of the $1,053 in court costs and $120 of the $2,457.90 restitution and had completed
just 76 of his required 300 hours of community service.

         The defendant admitted violating the terms of his alternative sentence, including having
smoked marijuana on two or three occasions, but argued that his circumstances had changed and that
he should be given another chance to comply with the terms of his release. While the defendant
acknowledged that he had fled to Arizona for five or six months to avoid being sent to jail for failure
to comply with the terms of his alternative sentence, he contended that, because he was the sole
provider for his new wife and nine-week-old son, he merited continuation in the community
corrections program. The defendant explained that he had struggled with paying court costs and
restitution because he was in arrears on child support. He disputed some of Lamb's calculations,
claiming that he had paid additional sums through his employer. The defendant also contended that
he absconded due, in part, to the advice of his employer to "lay low . . . [in order] to get caught up
[in payments]."

        The purpose of the Community Corrections Act of 1985 was to provide an alternative means
of punishment for "selected, nonviolent felony offenders in front-end community-based alternatives
to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence provides
a desired degree of flexibility that may be both beneficial to the defendant and serve legitimate
societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the

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defendant meets the minimum requirements of the Community Corrections Act of 1985, the
defendant is not necessarily entitled to be sentenced under the Act as a matter of law or right. State
v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are eligible for
Community Corrections:

                              (1) Persons who, without this option, would be incarcerated
                      in a correctional institution;

                              (2) Persons who are convicted of property-related, or
                      drug/alcohol-related felony offenses or other felony offenses not
                      involving crimes against the person as provided in title 39, chapter
                      13, parts 1-5;

                                 (3) Persons who are convicted of nonviolent felony offenses;

                              (4) Persons who are convicted of felony offenses in which the
                      use or possession of a weapon was not involved;

                             (5) Persons who do not demonstrate a present or past pattern
                      of behavior indicating violence;

                              (6) Persons who do not demonstrate a pattern of committing
                      violent offenses.

                              Persons who are sentenced to incarceration or on escape at the
                      time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).

      Once a defendant violates the terms of his Community Corrections program, the trial court
may revoke the sentence and impose a new one:

        The court shall also possess the power to revoke the sentence imposed at any time
        due to the conduct of the defendant or the termination or modification of the program
        towhichthedefendanthasbeensentenced,andthecourtmayresentencethedefendanttoanyappropriatesente ngalternative,includingincarceration,forany
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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 authority to revoke a Community Corrections sentence is based upon the conduct of the
defendant while under supervision. See id. A trial judge's decision to revoke a defendant's release
on Community Corrections should not be disturbed unless there is an abuse of discretion. State v.


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Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order to prevail under the abuse of discretion standard,
the defendant must establish that the record contains "no substantial evidence to support the
conclusion of the trial judge that a violation of the conditions . . . occurred." Id.

       The same principles applicable to a probation revocation are relevant to the revocation of
Community Corrections. Id. at 83. The trial judge is not required to find that a violation of the terms
of probation has occurred beyond a reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn.
Crim. App. 1980). Rather, the existence of a violation of probation need only be supported by a
preponderance of the evidence. Tenn. Code Ann. § 40- 35-311(e) (Supp. n 2000).

        Here, the defendant admitted the alleged violations of his community corrections sentence.
He acknowledged having left the jurisdiction in order to avoid arrest and having used illegal drugs
in violation of the terms of his alternative sentence. These admissions, coupled with the testimony
of Ralph Lamb, support the trial court's decision to revoke the defendant's alternative sentence. The
trial court acted within its discretion.

       Accordingly, the judgments are affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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