         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs November 28, 2001

                     STATE OF TENNESSEE v. ROSS BURGER

                 Direct Appeal from the Criminal Court for Bradley County
                          No. 00-097     Carroll Lee Ross, Judge



                                No. E2001-00941-CCA-R3-CD
                                       March 19, 2002

Defendant appeals the trial court’s denial of placement in the Community Corrections Program.
Denial of placement in Community Corrections Program for untruthfulness and failure to report
to begin sentence of incarceration was not abuse of discretion. We affirm.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ALAN E. GLENN, JJ., joined.

Charles M. Corn, District Public Defender, and A. Wayne Carter, Assistant Public Defender, for
the appellant, Ross Burger.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney
General; Jerry N. Estes, District Attorney General; and Shari Lynn Tayloe, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

        On August 6, 1999, defendant Ross Burger, while serving a six-month sentence for
burglary in the Bradley County Justice Center, was furloughed from incarceration in order to
seek medical treatment. Upon return to the Justice Center that same day, defendant underwent a
strip search. The search yielded a bag of tobacco, two bags of marijuana, and rolling papers.

         Defendant was subsequently indicted by a Bradley County Grand Jury in the spring of
2000 for introduction of a controlled substance into a penal institution, possession of a controlled
substance with intent to sell, and possession of drug paraphernalia. On January 8, 2001,
defendant pled guilty to possession of drug paraphernalia and introduction of a controlled
substance into a penal institution, a Class A misdemeanor and Class C felony, respectively. The
drug possession count was merged with the introduction of a controlled substance into a penal
institution count.
        The trial court conducted a sentencing hearing on March 5, 2001, after which the trial
court found that the following enhancement factors applied: Tennessee Code Annotated section
40-35-114(1), (8), (13), (14), and (21). The trial court found no mitigating factors. Defendant
was sentenced to six years, the maximum within his appropriate range, for the Class C felony.
Defendant received a sentence of eleven months, twenty-nine days on the Class A misdemeanor
to run concurrently with his sentence for the Class C felony.

        The judgment containing the Class C felony sentence also provided that after serving six
months in jail, defendant could apply for Community Corrections Program. Further, defendant
was to report to jail to begin his sentence on March 9, 2001, by 5:00 p.m.

       Defendant failed to report to jail as ordered. On March 19, 2001, a capias was issued for
defendant for failure to report to custody, and no bond was set. Defendant was subsequently
picked up on the capias and brought before the trial court on April 2, 2001. The trial court
appointed defendant counsel and informed defendant that, by his failure to report to jail as
ordered, he was ineligible for consideration for Community Corrections Program. The trial court
opined that defendant violated Community Corrections before he even started. The trial court
then set defendant’s revocation hearing for April 9, 2001. At the revocation hearing on April 9,
2001, defendant and his attorney simply stated to the trial court that defendant did not
understand when he was to turn himself in. The trial court found that defendant had a history of
saying he did not understand and of not showing up at the proper time. The trial court declined
to accept defendant’s excuse for failing to report, finding defendant untruthful. The trial court
ordered defendant to serve his entire sentence in the Tennessee Department of Correction.
Defendant filed a timely notice of appeal on April 18, 2001.

        Defendant argues that the trial court should have allowed him to serve his sentence in
the Community Corrections Program. The Tennessee Community Corrections Act was
developed to “punish selected, nonviolent felony offenders in front-end community based
alternatives to incarceration, thereby reserving secure confinement facilities for violent felony
offenders.” Tenn. Code Ann. § 40-36-103(1). The program is available for
                  (1) persons who, without this option, would be incarcerated in a
                      correctional institution;
                  (2) persons who are convicted of property-related, or
                      drug/alcohol-related felony offenses or other felony offenses
                      not involving crimes against the person . . .;
                  (3) persons who are convicted of nonviolent felony offenses;
                  (4) persons who are convicted of felony offenses in which the
                      use or possession of a weapon was not involved;
                  (5) persons who do not demonstrate a present or past pattern of
                      behavior indicating violence; [and]
                  (6) persons who do not demonstrate a pattern of committing
                      violent offenses . . . .
Id. § 40-36-106(a)(1)-(6). Those who are sentenced to incarceration or are on escape at the time
of sentencing are not eligible for the program. Id. § 40-36-106(a). No defendant has the
absolute right to be sentenced pursuant to the Community Corrections Act. State v. Taylor, 744

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S.W.2d 919, 922 (Tenn. Crim. App. 1987). Further, each case must be determined by the
specific facts and circumstances presented therein. Taylor, 744 S.W.2d at 922 (citing State v.
Moss, 727 S.W.2d 229 (Tenn. 1986)).

       Defendant appeals the trial court’s revocation of defendant’s opportunity to be placed in
the Community Corrections Program. Defendant requests this Court to review de novo the
record and the actions taken by the trial court. The State, however, contends that defendant
escaped from custody following a temporary leave and is therefore ineligible for community
corrections. Further, the State contends a review of defendant’s presentence report reveals that
defendant has at least four convictions for assault, including one instance of assaulting a police
officer, and the pattern of behavior indicating violence makes defendant ineligible for the
Community Corrections Program, pursuant to Tennessee Code Annotated section 40-36-106.

       It is undisputed that defendant did not report to begin his sentences as he was ordered.
The presentence report reveals that defendant, since age thirty-two, has been arrested forty-four
times and convicted thirty-five times. He has a history of failing to appear in court. In the
instant case, two capias warrants were issued for his failure to appear in court.

      Therefore, the central question is whether defendant, by his action of failing to report as
he was ordered to do, forfeited his opportunities to seek community corrections status after
serving six months in the county jail. We believe the answer is yes.

       When a defendant, as here, requests additional time to get his personal affairs in order
before reporting to serve his sentence and fails to report as ordered, his or her actions clearly
have a drastic effect upon the orderly administration of justice. Defendant, although not an
escapee in the technical sense, has more or less absconded and is in willful violation of a court’s
order.

       After being arrested on a capias for failing to report as ordered, the trial court appointed
defendant an attorney and held a revocation hearing at which time the trial court found
defendant’s excuse for failing to report untruthful. We note that lack of truthfulness reflects
poorly on rehabilitative potential and is relevant in determining appropriate sentencing
alternatives. See Tenn. Code Ann. § 40-35-103(5); State v. Sparks, No. M1999-01330-CCA-R3-
CD, 2000 Tenn. Crim. App. LEXIS 592 (Tenn. Crim. App., filed August 2, 2000, at Nashville).
Additionally, if a defendant is already serving in the Community Corrections Program, his or her
sentence may be revoked if a court finds the defendant not to be credible. State v. Barham, No.
02C01-9904-CC-00128, 1999 Tenn. Crim. App. LEXIS 1004, at *5 (Tenn. Crim. App., filed
Oct. 6, 1999, at Jackson) (stating that defendant was “incredible” when he stated that he did not
report for Community Corrections Program because he misunderstood the trial court’s order).
Finally, if a defendant is already serving in the Community Corrections Program, his or her
sentence may be revoked if the defendant fails to report. State v. Markowicz, No. 03C01-9804-
CC-00144, 1999 Tenn. Crim. App. LEXIS 641, at *5-6 (Tenn. Crim. App., filed July 7, 1999, at
Knoxville) (revoking sentence where defendant “just quit” performing under the conditions of
the alternative sentence). We see no reason why the above reasons, typically employed to


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revoke a sentence of Community Corrections Program, should not apply here so as to deny
defendant from initially being placed in the Community Corrections Program.

    We conclude that the trial court did not err by denying defendant’s placement in
Community Corrections Program.


                                      CONCLUSION

         Accordingly, we affirm the judgment of the trial court.




                                             _____________________________________
                                             JOHN EVERETT WILLIAMS, JUDGE




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