        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 June 21, 2016 Session

             STATE OF TENNESSEE v. CHARLES R. PRESLEY

            Direct Appeal from the Circuit Court for Williamson County
                 No. I-CR-114528       James G. Martin, III, Judge



              No. M2015-01600-CCA-R3-CD – Filed February 24, 2017



The Appellant, Charles R. Presley, appeals the trial court’s revocation of his probation
and its order that he serve his eight-year sentence for identity theft in confinement. The
Appellant contends that the evidence was not sufficient to show that he “was actually on
probation, what the probation conditions were, or whether he was advised of his
probation conditions.” Upon review, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Jonathan W. Turner, Franklin, Tennessee, for the Appellant, Charles R. Presley.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Kim R. Helper, District Attorney General; and Terry Wood, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       The record before us reveals a lengthy procedural history. On November 9, 2009,
the Williamson County Grand Jury returned a multi-count indictment against the
Appellant, charging him with identity theft, three counts of theft under $500, and three
counts of forgery. On January 20, 2010, the Appellant pled guilty to identity theft, a
Class D felony, and three counts of theft under $500, Class A misdemeanors. Pursuant to
the plea agreement, the Appellant, a Range II, multiple offender, received concurrent
sentences of eight years and eleven months and twenty-nine days, respectively. The
sentences were suspended. The forgery counts were dismissed.

        On May 12, 2010, a probation order listing the conditions of probation was signed
by the trial court and the Appellant and filed in the trial court. On August 30, 2010, a
warrant was issued, alleging that the Appellant had violated the conditions of probation
by being arrested for promoting prostitution and failing to report the arrest to his
probation officer. On March 1, 2011, an amended warrant was filed, alleging that the
Appellant had been charged with assault. On April 25, 2011, the Appellant admitted that
he had violated his probation, and by agreement with the State, his probation was revoked
and reinstated. On May 18, 2011, a probation order was filed in the trial court; the order
listed the conditions of probation and was signed by the trial court and the Appellant.

        On January 7, 2012, a warrant was issued, alleging that the Appellant violated the
conditions of probation by using crack cocaine; failing to pay fees, court costs, and
restitution; and failing to complete a drug recovery program. On May 8, 2012, the
Appellant admitted his violations, and, by agreement with the State, his probation was
revoked and reinstated.

       On August 13, 2012, a warrant was issued, alleging that the Appellant had violated
the terms of his probation by changing his address without telling his probation officer,
failing to report, and failing to complete a rehabilitation program. On January 2, 2013,
the Appellant pled not guilty to the violations, the warrant was dismissed by the trial
court, and the Appellant’s probation was reinstated. A probation order signed by the
Appellant, which was filed on January 10, 2013, stated that the Appellant’s probationary
sentence would expire on January 20, 2018. The order also listed the conditions of
probation.

       On March 5, 2013, a warrant was issued, alleging that the Appellant had violated
the terms of his probation by failing to complete an alcohol and drug program because he
“was terminated from that program . . . for non-compliance.” On April 8, 2013, an order
was filed, stating that the Appellant’s probation was revoked and ordering him to serve
his sentence in confinement.

       On February 20, 2015, a warrant was issued alleging that the Appellant had
violated the terms of his probation. The affidavit attached to the warrant stated that the
Appellant had been “granted Probation through the PTV program on 10-21-14.”1 The

1
    Tennessee Code Annotated section 40-20-301 provides:

                         Notwithstanding any other provision of law to the contrary, in
                 the event that an offender receives a suspension of sentence, has that
                 suspension of sentence revoked for reasons other than the commission of
                                                  -2-
affidavit alleged in part that the Appellant failed to report to his probation officer on
January 27, 2015.2

        On August 13, 2015, the trial court held a probation revocation hearing. 3 The trial
court reviewed the history of the case and questioned why the Appellant was on
probation when the last order in the record, which was filed on April 8, 2013, provided
that the Appellant had to serve his sentence in confinement. The State responded:

                         TDOC started a new program recently which allows
                  what they call technical violators a chance to be back on
                  probation even after they had started serving their TDOC
                  sentence. And that’s what happened with [the Appellant].
                  He was released by TDOC as part of this new program and
                  allowed back on probation.

The trial court said, “All right, I just didn’t understand. Thank you.” The State replied,
“I had never heard of the program before this case either.”

        Corwin McCarthy testified that he was assigned as the Appellant’s probation
officer in early October 2014. McCarthy said that because of the Appellant’s prostitution
conviction, he was required to register as a sex offender. The Appellant reported for the
first time on October 23 and met with John Grissom, another probation officer, who told
the Appellant the rules of the sex offender registry. Thereafter, the Appellant met with
McCarthy several times.

       McCarthy said that when the Appellant reported on January 22, 2015, he told the
Appellant to report at 2:30 p.m. on January 27, 2015. However, the Appellant did not
report until February 19, 2015.

                  a new felony offense, and is committed to the department of correction,
                  the department shall have the authority to place the offender in a special
                  technical violator unit in lieu of confinement in a regular state penal
                  facility unless the court specifies otherwise in the order of revocation. . . .
                  In such unit the offender shall, at a minimum, be required to participate
                  for a period of one hundred twenty (120) days in an intensive regimen of
                  work and available treatment programs in accordance with policies and
                  procedures established by the department.
2
  On June 12, 2015, an amended probation violation warrant was filed, alleging that the Appellant had
“two outstanding warrants for Sex Offender Registry Violation in Davidson County[.]” Because the
Davidson County proceedings were not concluded at the time of the revocation hearing, the trial court
decided to proceed on the original probation violation warrant and to dismiss the amended violation
warrant without prejudice.
3
    A post-conviction hearing was held the same day, and the post-conviction petition was dismissed.
                                                   -3-
        On cross-examination, McCarthy said that on December 9, 2014, the Appellant
applied to transfer his probation to McMinnville because of a job opportunity. On
December 18, the transfer was approved. McCarthy said that “later in December,” the
Appellant requested to transfer back to Nashville because he did not like the new job or
the living conditions. McCarthy approved the transfer, and the Appellant reported to him
on January 14, 2015. The Appellant next reported on January 22. At that time,
McCarthy told the Appellant to report on January 27 at 2:30 p.m. and gave him a
business card with the appointment details written on it. McCarthy said that scheduling
another appointment so soon was not normal procedure, but he may have needed
information from the Appellant. The Appellant failed to report on January 27. He next
reported on February 19 and was seen by Sherry Hughey, not McCarthy. The Appellant
reported to McCarthy on February 26 and was taken into custody. McCarthy
acknowledged that January 27 was the only reporting date the Appellant missed.

      The trial court found:

                    The evidence is unrebutted that [the Appellant] was
             advised to report on January 27th, 2015 at 2:30, he was given
             a card with the date and time to report. He failed to report
             that is clearly a violation and it is clearly alleged to be a
             violation. So, that has clearly been established by . . . the
             evidence and the State has met its burden. So, I do find that
             there has been a violation of probation based upon violation
             of Rule 7 as alleged.

                    The history in this case as the State has pointed out and
             as the record reflects concerning the supervision of [the
             Appellant] is very poor. The prospects for his successful
             compliance with the requirements of probation are very poor.
             We have one violation after another until the Court finally
             gave up on [the Appellant] in April and required him to serve
             his sentence. And that he was sent to TDOC and they
             released him under whatever program they got. But we know
             that on October 23, 2014, he then reported to Mr. McCarthy.
             And thereafter he violated by not reporting as he was
             instructed to do on January 27th, 2015. So, based upon the
             history that we have and the facts before the Court, the Court
             finds that [the Appellant] should serve the balance of his
             sentence, with appropriate jail credits.

      On appeal, the Appellant challenges the trial court’s ruling.
                                           -4-
                                       II. Analysis

       Upon finding by a preponderance of the evidence that the appellant has violated
the terms of his probation, a trial court is authorized to order an appellant to serve the
balance of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and
-311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Furthermore, 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). “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).

       On appeal, the Appellant contends that “the only evidence that the trial court heard
regarding [the Appellant’s] legal obligation to report” was for the sexual offender
registry. Nevertheless, the trial court revoked the Appellant’s probation for identity theft,
even though “the State never offered any testimony regarding the Appellant being on
probation for identity theft.” The Appellant further contends that the State failed to
adduce any proof regarding the conditions of the Appellant’s probation.

        The record before us reveals that the Appellant was convicted of identity theft on
January 20, 2010, and that he was sentenced to eight years of probation. On April 8,
2013, after multiple probation revocations, the trial court ordered the Appellant to serve
his sentence in confinement. On October 21, 2014, the Tennessee Department of
Correction granted the Appellant probation through a technical violator program. See
Tenn. Code Ann. § 40-20-301. An offender released from the Tennessee Department of
Correction through the technical violator program is subject to “the terms and conditions
[for release] imposed by the trial court.” Tenn. Code Ann. § 40-20-303. According to
the statute, “[s]hould an offender fail to comply with the terms and conditions of
supervision imposed by the department after successful completion of the program, the
release on supervision may be revoked by the trial judge pursuant to § 40-35-311.” Id.
The record also reveals that the Appellant signed multiple probation orders that outlined
the conditions of his release, including the requirement that he was to “report to [his]
Probation Officer as instructed.” The undisputed proof at trial was that McCarthy, the
Appellant’s probation officer, ordered the Appellant to report on the afternoon of January
27, 2015. The Appellant did not report on that day. The trial court found that the
Appellant violated the terms of his probation by failing to report as ordered by his
probation officer and that he should serve his sentence in confinement.

       It was within the trial court’s authority to order the Appellant to serve his original
sentence upon revoking the Appellant’s probation. See Tenn. Code Ann. §§ 40-35-310
                                            -5-
and -311(e); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Moreover,
“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
also State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at
*2 (Tenn. Crim. App. at Nashville, Feb. 11, 2002).

                                      III. Conclusion

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


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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