        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 5, 2010

            STATE OF TENNESSEE v. BRANDON WILLIAMSON

              Direct Appeal from the Circuit Court for Madison County
                         No. 07-684    Donald Allen, Judge




               No. W2010-00273-CCA-R3-CD - Filed October 18, 2010


The defendant, Brandon Williamson, appeals the revocation of his community corrections
sentence, claiming that the trial court erred by ordering him to serve his original sentence in
the Tennessee Department of Correction. Following our review, we affirm the judgment of
the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE R.
M CM ULLEN, JJ., joined.

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Brandon Williamson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant
Attorney General; James G. Woodall, District Attorney General; and Shaun Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                        Background
       On December 3, 2007, a Madison County grand jury indicted the defendant on four
counts: (1) possession of .5 grams or more of cocaine with intent to sell, a Class B felony;
(2) possession of .5 grams or more of cocaine with intent to deliver, a Class B felony; (3)
possession of marijuana, a Class A misdemeanor; and (4) possession of drug paraphernalia,
a Class A misdemeanor. On March 17, 2008, the defendant pled guilty to counts 1, 3, and
4, with count 2 merged into count 1. Pursuant to the negotiated plea agreement, the
defendant received a total effective sentence of eight years in the Tennessee Department of
Correction. The court ordered him to serve thirty days in jail and serve the remainder of his
sentence in a community corrections program. As further conditions of his sentence, the
court ordered the defendant to pay $75 per month for fines, restitution, and costs; to remain
drug free; and to maintain full-time employment or be a full-time student.

        On May 9, 2008, the defendant’s community corrections supervisor filed a violation
report, alleging that the defendant failed to report to the county jail as ordered by the court,
and the court issued a warrant for his arrest. On June 9, 2008, the court filed an order
reflecting the court’s finding that the defendant was not in violation of his community
corrections sentence and dismissing the warrant because the defendant had reported to jail
at a later date.

        On December 4, 2009, the community corrections supervisor filed a violation report
alleging that the defendant failed to remain drug free based on a positive test for marijuana
and the defendant’s admission that he used marijuana. The court held a violation hearing on
January 4, 2010. The court advised the defendant that the defendant had a right to a hearing
and a right to be represented by an attorney at the hearing. The court told the defendant that
he could speak with an attorney before deciding how to proceed. The court warned the
defendant that “if [he admitted] to the allegation then [his] sentence of eight years could
possibly be revoked[,] and [he] could possibly be ordered to serve that sentence, or at least
some portion of that sentence in the Tennessee Department of Correction[].” The defendant
admitted to the allegation and agreed with the court that he wished to waive his right to be
represented by an attorney. The court then heard testimony from the defendant and his
community corrections supervisor.

      The defendant testified that he relapsed into drug use when his family visited on
Thanksgiving Day. He further testified that he completed intensive outpatient treatment at
Pathways after testing positive for drug use. The defendant said that he worked at Goodwill
from November 2008 until July 2009, and he recently attended orientation to work for
Wendy’s. The defendant testified that he stopped working at Goodwill because he
sometimes took care of his sick grandfather.

        His supervisor, Monica Olsen, testified that the program tested the defendant for drugs
three times. The defendant tested positive in January 2009, negative in July of 2009, and
positive in December 2009.

       The court noted that the defendant had only made five payments of $50 and one
payment of $60. The state recommended that the court revoke the defendant’s community
corrections sentence, and the defendant requested that the court “[t]ry something else.
Anything. Drug court or something.” The court found that the defendant had substantially
violated the terms and conditions of his probation by testing positive for marijuana on

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December 1, 2009, and admitting to using marijuana. The court noted that the defendant
completed intensive outpatient treatment but that the treatment did not prove to be successful.
The court further noted that the defendant served a thirty-day “shock incarceration” period
pursuant to his plea agreement and that the defendant had failed to pay $75 per month.

       The court removed the defendant from the community corrections program and
ordered him to serve the remainder of his sentence in the Tennessee Department of
Correction. The court stated that it would recommend that the defendant receive drug
treatment while incarcerated because his outpatient treatment “apparently . . . didn’t help.”
The court appointed the public defender to represent the defendant on appeal.

                                          Analysis

        On appeal, the defendant argues that the trial court erred in revoking the defendant’s
community corrections sentence because the defendant “had done relatively well” in the
program and freely admitted to the violation allegation. The defendant further contends that
the trial court should have sentenced the defendant to “a period of shock incarceration” and
then ordered the defendant to continue in the community corrections program.

       A trial court may revoke probation and order the imposition of the original sentence
upon a finding by a preponderance of the evidence that the person has violated a condition
of probation. Tenn. Code Ann. §§ 40-35-310, -311; State v. Shaffer, 45 S.W.3d 553, 554
(Tenn. 2001). After finding a violation of probation and determining that probation should
be revoked, a trial judge may: (1) order the defendant to serve the sentence in incarceration;
(2) cause execution of the judgment as it was originally entered, or, in other words, begin the
probationary sentence anew; or (3) extend the probationary period for up to two years. See
Tenn. Code Ann. §§ 40-35-308(c) & -311(e); State v. Hunter, 1 S.W.3d 643, 647 -48 (Tenn.
1999). The decision to revoke probation rests within the sound discretion of the trial court.
State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Pursuant to Tennessee
Code Annotated section 40-36-106(e)(4), upon a finding that a defendant has violated the
conditions of his agreement, a trial court retains the authority to revoke a defendant’s
placement in a community corrections program and to cause execution of the original
judgment as it was entered. Revocation proceedings for community corrections are
conducted pursuant to Tennessee Code Annotated section 40-36-106(3)(B). Revocation of
probation or a community corrections sentence is subject to an abuse of discretion standard
of review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
An abuse of discretion is shown if the record is devoid of substantial evidence to support the
conclusion that a violation of probation has occurred. Id. The evidence at the revocation
hearing need only show that the trial court exercised a conscientious and intelligent judgment
in making its decision. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

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       The trial court must issue a statement setting forth the evidence and factors relied
upon in making the determination to revoke probation. The trial court’s findings may be
written or oral, a statement in some form must be made. State v. Delp, 614 S.W.2d 395, 397
(Tenn. Crim. App. 1980).

        In the case herein, the trial court stated its reasons for revocation. Specifically, the
court stated that (1) the defendant tested positive for marijuana; (2) the defendant admitted
to using marijuana; (3) the defendant did not pay restitution, fines, and costs as ordered; and
(4) the defendant’s previous outpatient treatment proved unsuccessful. The defendant’s own
testimony was more than adequate to support the trial court’s decision. The evidence at the
revocation hearing need only show that the trial court exercised a conscientious and
intelligent judgment in making its decision. Considering the defendant’s admission that he
violated his community corrections sentence, after being warned of the consequences of such
an admission, we conclude that the trial court did not abuse its discretion in revoking the
defendant’s community corrections sentence and ordering the defendant to serve the
remainder of his sentence in the Tennessee Department of Correction.

                                         Conclusion

       Based on the foregoing reasons, we affirm the judgment of the trial court.




                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




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