        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 19, 2010

          STATE OF TENNESSEE v. DWAYNE THOMAS HOOTEN

                 Appeal from the Criminal Court for Davidson County
                    No. 2009-A-117     Mark J. Fishburn, Judge


                No. M2010-00626-CCA-R3-CD - Filed January 20, 2011




The Defendant, Dwayne Thomas Hooten, appeals as of right from the Davidson County
Criminal Court’s revocation of his community corrections sentence and order of
incarceration. The Defendant contends that the trial court erred by ordering the previously
imposed sentence to be served in confinement. 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.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which D AVID H. W ELLES and
T HOMAS T. W OODALL, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Dwayne Thomas Hooten.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Janice A. Norman,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        On September 9, 2009, the Defendant pled guilty to one count of possession with
intent to sell or deliver less than .5 grams of cocaine. The Defendant was sentenced to six
years on community corrections. On February 9, 2010, a violation warrant was issued by the
trial court alleging that the Defendant violated the conditions of his community corrections
sentence by committing new offenses on December 5, 2009 and February 4, 2010.

       At the revocation hearing, Officer Anthony Chandler of the Metropolitan Nashville
Police Department (MPD) testified that on December 5, 2009, he stopped a white Toyota for
running a stop sign. The Defendant was a passenger in the vehicle, and after obtaining the
driver’s consent to search the vehicle, Officer Chandler observed the Defendant with a blunt
of marijuana in his left hand. Officer Chandler asked the Defendant to exit the vehicle, and
the Defendant placed the blunt on the right console as he got out of the vehicle. The
Defendant admitted to Officer Chandler that the marijuana was his. During his search of the
vehicle, Officer Chandler found several small baggies with “a substance consistent with
crack cocaine” under the passenger seat. Officer Chandler testified that the Defendant was
subsequently charged with two counts of possession of a controlled substance with prior
convictions, a Class E felony.

       Officer Eric Knight of the MPD testified that on February 4, 2010, he conducted a
narcotics buy using a confidential informant. The informant arranged the buy during a
telephone call with a man Officer Knight believed to be the Defendant. At the arranged time
and location, a vehicle arrived with the Defendant and two other men inside. The informant,
wearing a listening device, went to the vehicle and got in the back seat. Officer Knight could
hear the exchange take place and could see the Defendant’s head move as he spoke to the
informant. On cross-examination, Officer Knight admitted that he was not familiar enough
with the Defendant’s voice to identify him as the one he heard over the wire, but when he
heard a man speak to the informant, he could see the Defendant’s head moving as if he were
talking. The informant returned to Officer Knight with a baggy containing a white powder,
which field tested positive for cocaine.

       Officer Knight testified that as officers closed in to arrest the Defendant and his
companions, “the vehicle took off at a high rate of speed” and struck an undercover police
car. The vehicle was later found at 1017 North Sixth Street, where the Defendant and his co-
defendant were sitting on the porch of a vacant residence. Inside the vehicle was another
baggy containing cocaine. The Defendant’s wallet was found on the ground a few feet away
from the passenger side door of the vehicle. Additionally, between the vehicle and the porch
was a baggy containing 13 Xanax pills. Officer Knight testified that the money used in the
buy had been previously photocopied and that the informant gave the Defendant $140 in
exchange for the cocaine. When the Defendant was arrested, he had the previously identified
$140 on him. Based on this, Officer Knight testified that the Defendant was charged with
sale of a .5 grams or more of cocaine in a school zone and possession of a controlled
substance in a school zone.

        The Defendant’s mother, Shannon Hooten, testified on his behalf at the revocation
hearing. Ms. Hooten testified that she takes care of the Defendant’s two children and that
in 2000 the Defendant was shot several times and is paralyzed from the chest down. While
on community corrections, the Defendant would stay with Ms. Hooten for up to two weeks
at a time. Ms. Hooten further testified that when the Defendant stayed with her, she and her

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daughters would take care of the Defendant’s medical care. This included changing the
bandages on his back ulcers several times a day, changing his colostomy bag, and changing
his catheter. Ms. Hooten testified that while incarcerated, the Defendant was not receiving
proper medical care.

        Ms. Hooten explained that the Defendant could only stay for two weeks at her
apartment because her apartment complex would not allow a convicted felon to live in her
home. The rest of the time, the Defendant would stay with his girlfriend. Ms. Hooten
testified that if the Defendant were placed back on community corrections, this arrangement
would continue. On cross-examination, Ms. Hooten admitted that “I’ve known my son to
pick up charges” but she was not familiar with his criminal record in general, why he was
originally placed on community corrections, or his criminal record while on community
corrections. On redirect examination, Ms. Hooten testified that one of the Defendant’s
children had been shot and killed by an unknown assailant in July of 2009 and that this was
“a contributing factor in [the Defendant’s] drug use.”

        Clemmie Greenlee runs a licensed non-profit organization called Galaxy Star Drug
Awareness which deals with substance abuse. Ms. Greenlee testified that she had spoken
with the Defendant several times about participating in the program. However, Ms. Greenlee
testified that she had never actually met the Defendant in person, but she was willing to
accept the Defendant into her program. Ms. Greenlee said that she would “be his one-on-one
caretaker” if he was placed back on community corrections. Ms. Greenlee stated that the
Defendant told her he was reaching out to her for help dealing with his depression and coping
with the death of his daughter. Ms. Greenlee testified that she had taken a very personal
interest in the Defendant and that she would provide him with either inpatient or outpatient
drug treatment along with Narcotics and Alcoholics Anonymous meetings and “workshops.”
Ms. Greenlee also testified that she would like the Defendant to be a motivational speaker
to the young people in her program.

       On cross-examination, Ms. Greenlee admitted that a court employee looking for
community service work for the Defendant had initially contacted her and not the Defendant.
Ms. Greenlee also admitted that she knew nothing about the Defendant’s criminal record, the
charges he was facing, or even that he was currently incarcerated. Ms. Greenlee further
admitted that no one from her program had performed an assessment to determine whether
the Defendant would qualify to participate in her program.

       The Defendant testified that he did not have an answer for why he had not followed
the terms of his release other than that he was “just trying to provide a better life for my
kids.” The Defendant further testified that he knew “I messed up” and that he needed drug
treatment and was “headed that way before this incident.” The Defendant also testified that

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he was receiving substandard medical care while incarcerated. The Defendant told the trial
court that he was “done with the streets” and ready to get help through Ms. Greenlee’s
program. The Defendant also informed the trial court that he could “be much more help on
the outside to some youth than just sitting in [jail] doing nothing.” On cross-examination,
the Defendant admitted that he did not contact Ms. Greenlee’s program until after his
December 2009 arrest.

        Based on the foregoing evidence, the trial court ruled that the State had proven by a
preponderance of the evidence that the Defendant violated the conditions of his community
corrections sentence by committing other crimes. In deciding whether to incarcerate the
Defendant, the trial court noted that the Defendant had “a history of . . . using his wheelchair
as [an] excuse[]” for his criminal record. The trial court expressed concerns that the
Defendant’s proposed living situation was unstable with him “bouncing around” between
residences. While sympathetic to the Defendant, the trial court noted that he had violated the
terms of his release “every time he’s been on [c]ommunity [c]orrections, and at some point,
it’s just got to stop.” The trial court then ordered the Defendant to serve the remaining time
on his original six year sentence in confinement.

                                         ANALYSIS

        The Defendant does not challenge the trial court’s decision to revoke his community
corrections sentence. Instead, the Defendant contends that given his physical condition, the
trial court erred by incarcerating him instead of placing him back on community corrections.
The State responds that it was well within the trial court’s discretion to revoke the
Defendant’s community corrections sentence and order the remainder of his original sentence
to be served in confinement.

       The decision to revoke a community corrections sentence rests within the sound
discretion of the trial court and will not be disturbed on appeal unless there is no substantial
evidence to support the trial court’s conclusion that a violation occurred. State v. Harkins,
811 S.W.2d 79, 82-83 (Tenn. 1991). Pursuant to Tennessee Code Annotated section 40-35-
311(e), the trial court is only required to find that the violation of a community corrections
sentence occurred by a preponderance of the evidence. In reviewing a trial court’s findings,
this court must examine the record and determine whether the trial court has exercised a
conscientious judgment rather than an arbitrary one. State v. Mitchell, 810 S .W.2d 733, 735
(Tenn. Crim. App. 1991). Once there is sufficient evidence to establish a violation of a
community corrections sentence, the trial court has the authority to revoke the community
corrections sentence and order the original sentence to be served in confinement. Tenn. Code
Ann. § 40-36-106(e)(4).



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        There is simply no evidence in the record to suggest that the trial court abused its
discretion in ordering the Defendant to serve the remainder of his sentence in confinement.
 The State proved, by a preponderance of the evidence, that the Defendant violated the terms
of his community correction sentence twice in the span of three months by committing new
drug related offenses. Once the State has met its burden to prove a violation, the trial court
has broad authority to resentence a defendant “to any appropriate sentencing alternative,
including incarceration.” Tenn. Code Ann. § 40-36-106(e)(4). The record shows that the
trial court made a conscientious judgment in deciding to incarcerate the Defendant. The trial
court was sympathetic to the Defendant’s physical conditions and stated that it would attempt
to obtain better medical treatment for him. However, given the Defendant’s history of
violating the terms of community corrections release, the trial court ultimately concluded that
the remainder of the Defendant’s sentence should be served in confinement. Accordingly,
we affirm the judgment of the trial court.

                                       CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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