                                                                                                    02/14/2019
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 24, 2019

                 STATE OF TENNESSEE v. SARAH BRINKMAN

                     Appeal from the Circuit Court for Blount County
                       No. C-25421     Tammy Harrington, Judge


                                No. E2018-01011-CCA-R3-CD


The defendant, Sarah Brinkman, appeals from the revocation of the probationary
sentence imposed for her conviction of introducing contraband into a penal institution,
arguing that the trial court erred by ordering her to serve 180 days’ incarceration before
returning to probation. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mack Garner, Assistant District
Public Defender (at trial), for the appellant, Sarah Brinkman.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Mike Flynn, District Attorney General; and Tyler Parks, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

              On October 16, 2017, the defendant pleaded guilty to one count of
introducing contraband into a penal institution, see T.C.A. § 39-16-201, in exchange for a
sentence of four years to be served as 120 days’ incarceration followed by probation.1 A
probation violation warrant issued on February 8, 2018, alleging that the defendant had
violated the terms of her probation by failing to report for a home visit on February 1,
2018, failing to report as directed on February 5, 2018, and by failing to submit to a drug
screen on February 5, 2018.

1
        The defendant was given pretrial jail credit for the period from July 14, 2017, to October 16,
2017.
              At the May 7, 2018 revocation hearing, the defendant, through counsel,
stipulated that “on February the 1st she failed to report visually[] but talked to the
probation officer and rescheduled for February the 5th. That she failed to report on
February the 5th or any other date since then.”

              The 33-year-old defendant testified that at the time of her release onto
probation on October 16, 2017, she “lived with a friend” and subsisted on her income
from social security disability. She said that she “was on maximum,” which required that
she complete “a home visit and an office visit” each month. She reported as required
until February 1, 2018. The defendant insisted that she had simply “forgotten that [she]
had a home visit” and that she spoke with her probation officer, who told her “just to wait
until Monday the 5th.”

               On February 5, 2018, she telephoned her probation officer at 8:40 a.m. to
tell him that the person who had agreed to drive her to the probation office had been
taken “to jail for child support” and that she would be “an hour or so late.” The
defendant testified that the probation officer told her “not a minute past 9:00 a.m.” given
that she had missed her appointment on February 1. The defendant said that, despite her
best efforts, she “was not able to find a way” to get to the probation office before 9:00
a.m. Her probation officer left her a message later that same afternoon letting her know
that he had filed a probation violation report.

              The defendant insisted that she originally planned to turn herself in at the
jail, but she decided not to do so after an acquaintance who was a police officer in
Maryville told her that no warrant was pending for her arrest. She claimed that she was
“kind of hoping that it was some type of blessing” that no warrant had been issued, so she
did not turn herself in, did not report to the probation office, and had no further contact
with her probation officer. According to the defendant, she was arrested on April 12,
2018, when she “walked up to a police cruiser to see if it was the acquaintance” and
inquired of the officer whether there was a warrant for her arrest. Although she did not
know the officer in the cruiser, he agreed to check, and she was placed under arrest after
the officer confirmed that there was a warrant pending.

             The defendant testified that she had incurred no new criminal charges, had
not failed any drug screen, and had not used controlled substances since she failed to
report. She said that, if the court released her back on to probation, she planned to live
with the same friend she lived with when she was originally placed on probation. The
defendant said that she had previously suffered from an addiction to opiates but that she
had been participating for “four years steadily” in an outpatient drug rehabilitation
program.
                                            -2-
              During cross-examination, the defendant acknowledged that she incurred
the charge in this case while on misdemeanor probation for a 2017 conviction of simple
possession of a controlled substance. She acknowledged that, prior to that, she completed
a period of judicial diversion following a guilty plea to endangering the welfare of a
minor in 2015. The defendant agreed that, given her extensive history with sentences
involving release into the community, she knew that she would be arrested if she violated
the terms of her probation. Despite this experience-based knowledge, she claimed that,
upon learning from her friend that no arrest warrant was pending following her failure to
report on February 5, she “just figured maybe if [she] stayed out of trouble it was just
[her] lucky day.” The defendant acknowledged that she knew she would be required to
take a drug test on February 5, 2018.

              Noting the defendant’s “multiple chances at probation previously,” the
State asked the trial court to require the defendant to serve the balance of her sentence in
confinement. In the alternative, the State asked “for at least 180-day split in this case
before she’s returned back to probation.” The defendant asked the trial court for a
sentence of “split confinement roughly equal to the time of the absconding,” or 60 days.

              The trial court found that the defendant “violated the rules and conditions
of her probation by not reporting.” The court found that the defendant’s “history is not
good of several offenses in a short period of time” and ordered her to serve 180 days’
incarceration before returning to probation.

             In this appeal, the defendant again acknowledges that she violated the terms
of her probation but argues that 60 days’ “split confinement would have been a more
reasonable penalty” given that “[h]er violation was passive.”

              The accepted appellate standard of review of a probation revocation is
abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State
v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[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). The 1989 Sentencing Act expresses a burden of proof for
revocation cases: “If the trial judge finds that the defendant has violated the conditions of
probation and suspension by a preponderance of the evidence, the trial judge shall have
the right by order duly entered upon the minutes of the court to revoke the probation and
suspension of sentence . . . .” T.C.A. § 40-35-311(e)(1).



                                             -3-
              Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation
and “[c]ause the defendant to commence the execution of the judgment as originally
entered, or otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the trial judge may
order the original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension, and that it be executed accordingly.” Id. § 40-35-310(a).
In other words, “[t]he trial judge retains the discretionary authority to order the defendant
to serve the original sentence.” Reams, 265 S.W.3d at 430 (citing State v. Duke, 902
S.W.2d 424, 427 (Tenn. Crim. App. 1995)).

               In the present case, the defendant’s stipulation provided an adequate basis
for the revocation of her probation. Once the trial court revoked her probation, it was
free to impose the 180-day period of incarceration, and the defendant has failed to
establish that the court abused its discretion by doing so.

              Accordingly, the judgment of the trial court is affirmed.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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