        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs October 26, 2010

          STATE OF TENNESSEE v. LADARIUS TYREE SPRINGS

             Direct Appeal from the Criminal Court for Hamilton County
                      No. 267009     Barry A. Steelman, Judge


                No. E2010-00786-CCA-R3-CD - Filed November 8, 2010


The defendant, Ladarius Tyree Springs, pled guilty to one count of aggravated burglary, a
Class C felony. Pursuant to the plea agreement, the Hamilton County Criminal Court
sentenced the defendant to six years incarceration suspended to intensive probation after the
service of eleven months and twenty-nine days in confinement. While on probation, the
defendant pleaded guilty to assault. A violation of probation warrant issued and, following
a revocation hearing, the trial court ordered the defendant to serve the remainder of his
sentence in confinement. In this appeal as of right, the defendant contends that the trial court
erred in denying him an alternative sentence. Following our review, we affirm the judgment
of the trial court.

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

N ORMA M CG EE O GLE, delivered the opinion of the Court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Benjamin L. McGowan, Chattanooga, Tennessee, for the appellant, Ladarius Tyree Springs.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William H. Cox, District Attorney General; and C. Matthew Rogers, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       The Hamilton County grand jury indicted the then eighteen-year-old defendant for one
count of aggravated burglary and two counts of aggravated robbery occurring on December
19, 2007. On August 1, 2008, the defendant pled guilty to one count of aggravated burglary
and the remaining counts were dismissed. Pursuant to the plea agreement, the trial court
sentenced the defendant to six years as a Range I, standard offender to be served on
supervised probation following the service of eleven months and twenty-nine days
incarceration. At sentencing, the defendant received pretrial jail credit from December 19,
2007 until August 1, 2008.

       On September 4, 2008, the defendant was arrested for simple assault, to which he
ultimately pled guilty. A violation of probation report followed based upon this new arrest.
Following the revocation of the defendant’s probation, on August 31, 2009, the trial court
entered an amended judgment sentencing the defendant to six years to be served on
community corrections. On November 4, 2009, the trial court rescinded the community
corrections order after the defendant was unable to find a community corrections program
that would accept him. On March 15, 2010, the trial court entered a second amended
judgment ordering the defendant to serve his six year sentence in the custody of the
Tennessee Department of Correction, with applicable jail credit. This timely appeal
followed.

        At the February 23, 2009 revocation hearing, the State presented the testimony of
David Lane, an officer with the Tennessee Department of Probation and Parole. Mr. Lane
testified that he had supervised the defendant’s probationary sentence. He said that he had
an opportunity to meet with the defendant only two times before he was arrested for assault.
Although he had never had the chance to visit the defendant’s home, Mr. Lane alleged a
curfew violation in the violation of probation report based upon the defendant’s arrest
occurring at 3:00 a.m. Mr. Lane testified that the arrest report for the assault indicated that
the defendant had participated “in a group assault” that did not involve weapons or alcohol.

       The defendant admitted at the hearing that he had violated the terms of his probation.
He acknowledged Mr. Lane’s testimony as true and accurate. He explained that his parents
“weren’t really there for [him]” growing up. He said that he was placed in foster care when
he was ten or eleven years old because his mother “wasn’t doing what she was supposed to
do” concerning the care of him and his six siblings and because she “got on drugs real bad.”
His father was “in and out of jail” throughout his childhood.

        The defendant testified that he had been diagnosed with bipolar disorder and attention
deficit hyperactivity disorder. He said that intelligence testing during school showed that his
intelligence quotient (IQ) “wasn’t right all the way up there.” 1

       The defendant told the court that he knew that he had “messed up . . . [but he had]
been sitting behind that wall thinking it’s time for [him] to grow up and be a real man.” He
explained that he had been employed at several restaurants while in high school and that he

       1
           When asked by the trial court, defense counsel said that the defendant had an IQ of 71.

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wanted to obtain his general equivalency diploma (GED) if returned to probation. He said
that he did not want to go to prison because he was frightened by stories he had heard about
it. On cross-examination, the defendant denied that the assault involved any gang activity.
He also said that he did not use alcohol or illegal drugs.

         When questioned by the trial court, the defendant said that he would live with his
sister if granted probation. He acknowledged that the assault arrest occurred within a month
of being placed on probation.

        At the conclusion of the February 23, 2009 revocation hearing, the trial court found
that the defendant had violated the terms of his probation by the new arrest and by being out
past curfew. He reserved the sentencing issue to allow the defendant an “opportunity to look
into some kind of a residential program . . . where he’s going to have some sort of structure.”
The trial court added that “although I think punitive measures are necessary, I want to try to
give him the opportunity to do something with some structure before I do send him on to that
[prison] environment.” The trial court stated that it “looked at him on the witness stand and
I don’t really want to send him to the penitentiary at what he presented here . . . . I will send
him if he doesn’t . . . show anything any better than what he’s shown so far.”

       As previously discussed, the record reveals that the defendant was placed on
community corrections supervision in August 2009. However, the trial court rescinded its
August 21, 2009 order on November 4, 2009 based upon a determination by community
corrections personnel that the defendant could not be placed in their program.2 On March
15, 2010, an additional hearing was held concerning the defendant’s sentence. From this
hearing, we can glean that the defendant had spent a substantial amount of time, “about two
years,” in the custody of the Hamilton County Jail.

        Michelle Johnson, an internal affairs investigator with “the local CCA Silverdale
facility” – a community corrections agency, testified that she investigated an incident that led
to the defendant being transferred from the facility back to the jail. She said that on
December 26, 2009, the defendant was involved in an altercation with seven to eight inmates.
The defendant swung “what appeared to be a lock in a sock” at several inmates. Ms. Johnson
conducted a search of the defendant’s cell and discovered the “lock in a sock” and several
gang-related notes indicating that the defendant was a member of the Traveling Vice Lords.
The defendant was transferred to the jail based upon this incident and “numerous disciplinary
problems,” which had required him to be housed in the segregation unit eight times.



        2
        It appears from the record that these actions all occurred via court order and that no hearings were
held. There are no transcripts relevant to these orders contained in the record on appeal.

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       Hamilton County Sheriff’s Department Deputy Marc Stockman testified that he
prepared an incident report concerning the defendant on January 10, 2010. The defendant
and another inmate became involved in an altercation because the other inmate had been
throwing urine at the defendant. When the defendant was moved to another location, a
“plastic shank” was discovered among his personal belongings inside a property box under
the defendant’s bed.

        The defendant denied his involvement in the altercation at the community corrections
facility. He said that he did not have anything in his hand. He denied ownership of the “lock
in the sock” and implied that it could have belonged to someone else because it was a two-
man cell. He denied ownership of the shank found in his property box at the jail. The
defendant said that he had “been controlling [his] temper since [he] got locked up” and that
he wanted a chance at probation. However, he admitted that he had verbally threatened a
guard in February 2010 because the guard “made [him] mad.”

        Defense counsel acknowledged that the trial court had allowed some opportunity to
address the defendant’s rehabilitative needs but that nothing was “to be found in our current
system.” Defense counsel asked the trial court to place the defendant on intensive probation
so that the defendant could address these needs outside the penitentiary setting.

       The trial court held that intensive probation would not be structured enough for the
defendant. The trial court found that the defendant “had indicated that his behavior is so
deeply ingrained that he really cannot rehabilitate himself outside of custody without
endangering himself and others.” The trial court reiterated that the defendant had violated
the terms of his probation by his 2008 assault arrest. The trial court imposed a sentence of
incarceration based upon its concerns that the defendant “presents too much of a danger to
the general public to be out on the streets” and that the defendant “really hasn’t proven
himself to be a good candidate to be rehabilitated.” The defendant timely appealed this
judgment.

       On appeal, the defendant argues “that he is a good candidate for alternative sentencing
and that the court erred in discounting his explanations” concerning his misbehavior while
incarcerated locally. He also contends that the trial court erroneously allowed testimony
concerning the altercation at the community corrections facility despite the State’s failure to
produce the video recording of the incident. The State responds that there was substantial
evidence of the defendant’s lack of amenability to rehabilitation upon which to base the trial
court’s decision to order the sentence in confinement. Following our review, we agree with
the State.

       Upon finding by a preponderance of the evidence that a probationer has violated the

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terms of his probation, a trial court is authorized to order him to serve the balance of his
original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e); see also
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). An abuse of
discretion exists when “the record contains no substantial evidence to support the trial court’s
conclusion that a violation has occurred.” State v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim.
App. 1995).

       It was within the trial court’s authority to order the defendant to serve his original
sentence upon revoking his probation. See Tenn. Code Ann. §§ 40-35-310 and -311(e); State
v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). “[A]n 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).

        There is substantial evidence to support the trial court’s revocation of probation in this
case. The defendant admitted to the violations at the February 2009 hearing. When offered
the opportunity for a sentence less than confinement in the penitentiary, the defendant
involved himself in further altercations that showed his lack of amenability to rehabilitation.
Furthermore, we deem the defendant’s argument concerning the State’s failure to produce
the video recording unpersuasive. The defendant could have sought the recording through
discovery and presented the same. The trial court limited Ms. Johnson’s testimony to those
facts she observed and made findings based upon his credibility determinations of the
witnesses. The defendant’s admitted and repeated altercations during the pendency of the
trial court’s sentencing decision justify the denial of alternative sentencing in this case.
Therefore, we conclude that the trial court did not abuse its discretion. Accordingly, the
judgment of the trial court is affirmed.


                                                     _________________________________
                                                     NORMA MCGEE OGLE




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