        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs at Knoxville October 15, 2013

             STATE OF TENNESSEE v. PATRICK SCOTT RILEY

                 Appeal from the Criminal Court for Davidson County
                    No. 2010-A-666     Mark J. Fishburn, Judge


               No. M2013-00776-CCA-R3-CD - Filed December 23, 2013


The Defendant-Appellant, Patrick Scott Riley, appeals from the Davidson County Criminal
Court’s order revoking his community corrections sentence. He previously entered a guilty
plea to burglary and received an eight-year suspended sentence. On appeal, Riley argues that
the trial court unreasonably conditioned his community corrections sentence on the
requirement that he “get off any and all opiates or other medications that have any addictive
qualities” within sixty days of the September 5, 2012 sentencing hearing. Upon review, we
conclude that the issue challenging the conditions of his community corrections sentence is
waived by Riley’s failure to timely appeal the trial court’s initial order. We further conclude
that the trial court did not abuse its discretion by revoking Riley’s community corrections
sentence and ordering his original eight-year sentence to be served in confinement.
Accordingly, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R. and J EFFREY S. B IVINS, JJ., joined.

Samuel A. Wooden, Nashville, Tennessee, for the Defendant-Appellant, Patrick Scott Riley.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sarah
Davis, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       On March 26, 2010, the Davidson County Grand Jury returned a two-count indictment
charging the Defendant-Appellant, Patrick Scott Riley, with one count of burglary and one
count of theft of property valued at $500 or less. On May 10, 2012, Riley pled guilty to one
count of burglary in exchange for the dismissal of the theft count and an eight-year sentence.1
The manner of service of the sentence was to be determined by the trial court.

       Evidence presented at the July 25, 2012 and September 5, 2012 sentencing hearings
revealed that Riley had a lengthy criminal record due to his alcohol use and drug addiction.
By his own admission, most, if not all, of his criminal charges were motivated by an attempt
“to get self-medicated[.]” Riley reported having various health problems and that he had
been struggling with cocaine and Dilaudid addiction over the course of his life. Despite his
addiction to opiate medication, he was prescribed hydromorphone for his chronic pain. In
July or August of 2011, while on bond for the instant burglary offense, he was arrested for
stealing bacon from a grocer to sell for drug money. Riley acknowledged that his addiction
was part of the reason why he kept returning to jail. Previously in 2001, Riley underwent
intensive drug treatment through the Davidson County Drug Court. He absconded and did
not complete the program. Riley has also had experiences in various treatment facilities such
as Buffalo Valley and Cumberland Heights. The trial court expressed concern that the very
drug that Riley struggled with was the same medication that he continued to use.

        At the conclusion of the September 5, 2012 sentencing hearing, the trial court
sentenced Riley to eight years in the Department of Correction with a release eligibility of
forty-five percent. The court suspended the sentence and ordered Riley to serve the eight
years on community corrections. Specifically, he was placed under the supervision of the
Dual Disorders Services (DDS) program in Davidson County. The conditions of Riley’s
community corrections sentence included that he report to all required appointments, refrain
from consuming alcohol, undergo weekly alcohol and drug screens, remain active with
Centerstone treatment facility, and that he would have sixty days “to get off any and all
opiates or other medications that have any addictive qualities[.]” The trial court advised
Riley that a violation of the conditions of his sentence would result in revocation of
community corrections and incarceration for the balance of the sentence.

    On November 30, 2012, Riley’s community corrections officer filed a Violation of
Community Corrections Program Affidavit, alleging that Riley violated the conditions of his



        1
          We note that Riley did not include the transcript from his May 10, 2012 guilty plea hearing in the
record on appeal. We have carefully reviewed the appellate record and conclude that the indictment, the
judgment and amended judgment, the transcript of the July 25, 2012 and September 5, 2012 sentencing
hearings, the November 30, 2012 community corrections violation warrant, the January 10, 2013 amended
violation warrant, and the revocation hearing transcript are sufficient for a meaningful review of the issue
on appeal. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012) (concluding that “[i]f . . . the record is
adequate for a meaningful review, the appellate court may review the merits of the sentencing decision with
a presumption that the missing transcript would support the ruling of the trial court.”).

                                                    -2-
sentence by failing to appear for his scheduled appointment on November 26, 2012. The trial
court issued a warrant for Riley’s arrest.

       On January 10, 2013, Riley’s community corrections officer filed an Amended
Violation of Community Corrections Program Affidavit, alleging that Riley, after making
bond on December 26, 2012, failed to appear for his scheduled appointments on December
27, 2012 and on January 3, 2012. That same day, the trial court issued another warrant for
Riley’s arrest.

       At the February 28, 2013 revocation hearing, Samantha Thompson of Transitions
Housing Agency testified on behalf of the defense. Thompson stated that Riley had called
her during the first week of February to inquire about transitional housing. She said that
Transitions Housing is a structured transitional living facility for individuals recovering from
drug and alcohol abuse and that residents are subject to curfews and random drug screens.
According to Thompson, accommodations in the facility would be available that same day
for Riley at a weekly rent of $130. She further stated that Riley qualified for the facility’s
ninety-day program. On cross-examination, Thompson said she had not personally met with
Riley and that she did not have information about his particular addiction or situation.

       Brandi Jimerson, Riley’s community corrections officer, testified that Riley was
placed on the Community Corrections DDS program and that one of the conditions was that
he had sixty days to be taken off of Dilaudid. Jimerson said that Dr. Mayer, the DDS staff
psychiatrist, started treating Riley with Suboxone. When Jimerson sought to screen Riley for
drug use, he admitted to drinking. Jimerson stated that Dr. Mayer did not want to treat Riley
with Suboxone if he had been drinking. She said that Riley was assessed, and accepted, for
treatment with Samaritan Inpatient in November 2012. Riley was told to report back to the
community corrections DDS office on November 26, 2012 since it would be about two and
a half weeks until a bed became available at Samaritan Inpatient. Riley did not report as
scheduled so Jimerson called his home and left a message on November 28. Jimerson said
she also contacted Riley’s attorney to see if Riley went into treatment somewhere without her
knowledge. On November 30, 2012, the trial court signed a warrant because Riley was
considered to be an absconder.

       Jimerson testified that Riley entered into Buffalo Valley for treatment on December
4, 2012. He was discharged on December 21 and was told to report to the community
corrections DDS office on December 27. However, Riley did not appear for his scheduled
appointment. Jimerson said Riley had called her on December 24 and left a message that he
had been released. He also told her that he had not turned himself in for the community
corrections violation and that he was looking for a half-way house. Jimerson tried to call
Riley back on December 26 but could not reach him. She said Riley did turn himself in on

                                              -3-
the community corrections violation and made bond. He called her and said he was going
to the hospital and that he would bring the paperwork to her, but he did not ever call Jimerson
back. She attempted to contact Riley on January 2, 2013, and reached his mother.

        Jimerson explained to Riley’s mother that Riley had not reported to the community
corrections office since making bond and that he should report the following day at any time.
According to Jimerson, Riley never reported on January 3. Instead, he called her after hours
and left a message stating he did not report because he was being admitted to the hospital and
that he would call Jimerson back. She said she never heard from Riley again. The trial court
then signed an amended warrant on January 10, 2013, for Riley’s failure to report to the
community corrections office as required. The warrant was then served on Riley some time
in early February 2013. Jimerson then identified Riley in the courtroom.

       On cross-examination, Jimerson disagreed that absconding is a technical violation of
Riley’s community corrections sentence. She said that every time she called Riley, she could
not reach him and that he would call her after hours and leave voice messages. Jimerson did
receive faxes from Buffalo Valley verifying that Riley was there during the time in question.
However, she did not have any records that Riley had been hospitalized in early January
2013. She reported having seen Riley approximately eight to ten times while he was under
her supervision. She said he was screened for drug use on four occasions and tested positive
for Dilaudid twice. Jimerson did not recall the circumstances of Riley’s self-reported
drinking or exactly how much alcohol he said he had consumed. She testified that Riley was
always very cooperative and did not have any behavioral problems. Apart from his failure
to report, Jimerson never had any issues with Riley. She said he had willingly appeared
every week for two days of treatment at Centerstone and two days with the community
corrections DDS program.

       Patrick Scott Riley testified that he has frequently experienced physical problems and
that pain medication has always been a part of his life. After being prescribed pain
medication on various occasions, Riley developed a dependency on them. Following his
sentencing to community corrections, he had tried to curb his addiction, but the physical
withdrawals from the opiates were extremely difficult. He said when the first violation
warrant was issued in late November 2012, he had been attempting to secure a placement
with Samaritan Center but was told that a bed would not be available for nearly three weeks.
According to Riley, his addiction continued to progress such that he would panic because he
was under court order to get off the opiates. He attempted to get into various treatment
centers but could not afford the required payment. He said he relapsed in early December
2012 and entered into Buffalo Valley for detoxification.




                                              -4-
       During the treatment process, Riley suffered acute withdrawals on December 16,
2012, such that he was vomiting about every twenty minutes throughout the day. He was
taken to the emergency room and given injections of Phenergan and Zofran, but he continued
vomiting. Riley said the hospital was aware that he was undergoing treatment for opiate
dependency. The medical records were admitted into evidence and reflected that Riley
received a morphine injection at the hospital on December 16, 2012. The morphine treatment
stopped the withdrawals, and Riley was released back to Buffalo Valley at around 11:45 p.m.
that evening. He acknowledged that after his release from Buffalo Valley on December 21,
he did not visit or contact Ms. Jimerson. He said he was unaware that he was supposed to
immediately check in with his community corrections officer and that there had been
communication problems at Buffalo Valley. After his discharge, Riley arranged to make
bond, “and then, of course, [he] went back to using drugs.” He testified that he took the
remaining medication from his hydromorphone prescription.

        Riley said he was brought into custody on February 3, 2013, when he was a passenger
in a car that was pulled over. Since he had been in custody for the past three weeks, Riley
said he had been attempting to find living arrangements and had called various half-way
houses. He had also been looking for employment while in custody. He was an electrician
by trade and had suitable employment if he were to be released. He said he had also been
attending substance abuse meetings and church services while in custody. Although his
recovery process had not been perfect, Riley said he was committed to making progress. He
admitted that he had relapsed shortly after his release from Buffalo Valley in late December
2012.

       On cross-examination, Riley acknowledged that he was no longer using opiates
because he was in custody. He denied absconding from his arrangements for inpatient
treatment at Samaritan House. He conceded that he was scheduled to report to Samaritan
House on November 26, 2012, and that he entered into treatment at Buffalo Valley on
December 4, 2012. He did not have an explanation for the trial court as to why he was not
reporting to, or meeting with, his community corrections officer as required.

        Following the hearing, the trial court found that Riley had violated the terms and
conditions of his community corrections. The trial court noted that Riley was given multiple
opportunities to rehabilitate himself in the community corrections program and to work
closely with Jimerson, who had repeatedly reached out to him. The court stated that Riley’s
bond on his initial violation warrant had been significantly reduced so that he could continue
working with his community corrections officer after his release from Buffalo Valley. Even
after being discharged from Buffalo Valley on December 21, 2012, Jimerson had not issued
an amended violation warrant until January 10, 2013. The court noted that the issue was not
that Riley had experienced withdrawals or that he could secure employment if released, but

                                             -5-
rather, “[t]he issue is his refusal . . . to comply with the requirements of Community
Corrections and meeting with Ms. Jimerson.” After considering the evidence, the trial court
sustained the violation warrant, revoked Riley’s community corrections, and imposed his
original sentence of eight-years’ incarceration, with credit for time served.

      On March 19, 2013, Riley filed a timely notice of appeal as to the trial court’s
February 28, 2013 judgment.

                                           ANALYSIS

        On appeal, Riley argues that the trial court “unreasonably conditioned [his]
community corrections on the requirement that he, within sixty days, stop taking his
prescription medication.” He contends that this condition was beyond the scope of the trial
court’s discretion and is a violation of constitutional protections against the infliction of cruel
and unusual punishment. Therefore, he maintains that “any violation premised on a violation
of this condition is insufficient to revoke community corrections.” In response, the State
argues that Riley, in failing to timely appeal his community corrections sentence, has waived
any consideration of the imposed conditions. The State also maintains that the trial court
properly exercised its discretion in revoking Riley’s community corrections and in reinstating
the original sentence of incarceration. We agree with the State.

        As an initial matter, we note that Riley has filed a timely notice of appeal as to the trial
court’s February 28, 2013 order which revoked his community corrections sentence and
reinstated the sentence of eight-years’ imprisonment. However, Riley did not appeal the trial
court’s judgment entered on September 5, 2012, ordering him to serve his eight-year sentence
on community corrections, subject to certain conditions. The record reflects that at the
conclusion of the September 5, 2012 sentencing hearing, the trial court advised Riley that a
violation of the conditions of his sentence would result in revocation of community
corrections and incarceration for the remainder of the sentence. After the trial court imposed
the conditions of the community corrections, Riley could have appealed within thirty days
if he considered any of the imposed conditions to be unreasonable. See State v. Pendergrass,
937 S.W.2d 834, 837 (Tenn. 1996) (“As a general rule, a trial court’s judgment becomes final
thirty days after its entry unless a timely notice of appeal or a specified post-trial motion is
filed”); see also T.C.A. § 40-35-401(a) (2010) (“The defendant in a criminal case may
appeal from the length, range or the manner of service of the sentence imposed by the
sentencing court. . . . An appeal pursuant to this section shall be taken within the same time
and in the same manner as other appeals in criminal cases.”).

      Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that “the notice of
appeal required by Rule 3 shall be filed with and received by the clerk of the trial court

                                                -6-
within 30 days after the date of entry of the judgment appealed from . . . .” However, this
rule also states that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional
and the filing of such document may be waived in the interest of justice.” Tenn. R. App. P.
4(a). This court, in deciding whether to grant a waiver regarding an untimely notice of
appeal, “shall consider the nature of the issues for review, the reasons for the delay in seeking
relief, and other relevant factors presented in each case.” Michelle Pierre Hill v. State, No.
01C01-9506-CC-00175, 1996 WL 63950, at *1 (Tenn. Crim. App., at Nashville, Feb. 13,
1996), perm. app. denied (Tenn. May 28, 1996). “Waiver is not automatic and should only
occur when ‘the interest of justice’ mandates waiver. If this court were to summarily grant
a waiver whenever confronted with untimely notices, the thirty-day requirement of Tennessee
Rule of Appellate Procedure 4(a) would be rendered a legal fiction.” State v. Rockwell, 280
S.W.3d 212, 214 (Tenn. Crim. App. 2007) (citing Michelle Pierre Hill, 1996 WL 63950, at
*1). Here, Riley filed a notice of appeal on March 19, 2013, after the trial court revoked his
community corrections sentence. Insofar as he seeks to challenge the conditions imposed
after the September 5, 2012 sentencing hearing, Riley’s notice of appeal was untimely by five
and a half months. Moreover, the record reflects that Riley’s community corrections officer
filed a violation affidavit and an amended violation affidavit based on Riley’s repeated
failure to report for scheduled appointments, and the trial court sustained the violation
warrant after an evidentiary hearing. Thus, the issue was not that Riley had failed to fulfill
the sixty-day opiate detoxification requirement, but that he had failed to meet with Jimerson
on three occasions. Given that the notice of appeal as to the imposed conditions was
untimely by nearly half a year, and that the conditions were challenged only after the
revocation of the alternative sentence, we conclude that the “interest of justice” would not
be served by granting a waiver of the timely appeal as to the September 5, 2012 judgment.
See Tenn. R. App. P. 4(a); see also State v. William A. Marshall, No.
M2001-02954-CCA-R3CD, 2002 WL 31370461, at *6 (Tenn. Crim. App. Oct. 14, 2002)
(“We doubt whether the defendant may wait until a revocation has been declared before he
attacks the reasonableness of the probation condition, at least when the circumstances of the
performance of the condition are known or foreseeable at the time of imposition.”).
Accordingly, the issue challenging the conditions of Riley’s community corrections sentence
is waived by his failure to timely appeal that order.

       Riley did, however, file a timely notice of appeal as to the February 28, 2013
judgment of the trial court revoking his alternative sentence. On appeal, he requests that this
court “reinstate his sentence to community corrections.” After a thorough review, we
conclude that the trial court did not abuse its discretion in revoking Riley’s community
corrections sentence and ordering him to serve his original eight-year sentence in
confinement.




                                               -7-
       The purpose of the Community Corrections Act of 1985 was to “[e]stablish a policy
within the state to punish selected, nonviolent felony offenders in front-end community based
alternatives to incarceration, thereby reserving secure confinement facilities for violent
felony offenders[.]” T.C.A. § 40-36-103(1) (2010). The Act provides that:

       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 to which the defendant has been sentenced, and the court may
       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.

Id. § 40-36-106(e)(4) (2010). The principles in reviewing whether the revocation of
community corrections was proper are the same as those applied in probation revocation.
See State v. Harkins, 811 S.W.2d 79, 83 (Tenn. 1991). A trial court may revoke a
community corrections sentence if it finds by a preponderance of the evidence that the
defendant has violated the conditions of his or her alternative sentence. See id. at 82; see
also T.C.A. § 40-35-311(e) (2012). This court will not disturb the judgment of the trial court
in this regard absent an abuse of discretion. See Harkins, 811 S.W.2d at 82 (citing State v.
Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981)). To establish an abuse of
discretion, the defendant must show “that the record contains no substantial evidence to
support the conclusion of the trial judge that a violation of the conditions of probation has
occurred.” Harkins, 811 S.W.2d at 82 (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). The State need not
prove the violation beyond a reasonable doubt; rather, the evidence “is sufficient if it allows
the trial judge to make a conscientious and intelligent judgment.” Harkins, 811 S.W.2d at
82 (citing State v. Milton, 673 S.W.2d 555, 557 (Tenn.Cr.App.1984)). Once the trial court
decides to revoke a defendant’s community corrections sentence, it may “[c]ause the
defendant to commence the execution of the judgment as originally entered, or otherwise, in
accordance with § 40-35-310[.]” T.C.A. § 40-35-311(e).

        The record in this case contains sufficient evidence that Riley violated the terms of
his community corrections. At the revocation hearing, Riley conceded that he was not
contacting or meeting with his community corrections officer as required. He admitted to
using opiates on at least two occasions. When questioned by the trial court as to why he was
not reporting to Jimerson, Riley did not have an explanation. In his brief, Riley maintains
that he “relapsed, and wound up in treatment causing him to miss his Community Corrections
appointments.” However, the evidence in the record does not contain any overlap between
when Riley was receiving treatment and when he was required to report to the community

                                              -8-
corrections office. Although Jimerson repeatedly reached out to him, Riley did not report to
his scheduled appointments and failed to produce hospital records to support his claims.
Based on the record, it was within the trial court’s discretion to revoke Riley’s community
corrections sentence and to order him to serve his original sentence in confinement. Riley
has failed to establish the absence of any substantial evidence to support the decision of the
trial court, and he is not entitled to relief. See Harkins, 811 S.W.2d at 82.

                                      CONCLUSION

      We conclude that the trial court did not abuse its discretion in revoking Riley’s
community corrections sentence and ordering him to serve his original sentence in
confinement. The judgment of the Davidson County Criminal Court is affirmed.




                                                   ___________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




                                             -9-
