        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs April 25, 2012

                STATE OF TENNESSEE v. NATHANIEL KELLY

                 Appeal from the Criminal Court for Davidson County
                    No. 2009-A-438     Mark J. Fishburn, Judge


                No. M2011-01311-CCA-R3-CD - Filed August 22, 2012


The Defendant, Nathaniel Kelly, appeals as of right from the Davidson County Criminal
Court’s revocation of his community corrections sentence and order of incarceration. The
Defendant contends (1) that the trial court abused its discretion in revoking his community
corrections sentence and placing his original sentence into effect, instead of ordering a period
of shock incarceration followed by release to community corrections, and (2) that the trial
court did not issue a statement setting forth the evidence or factors it relied upon in making
its determination to revoke his sentence. Following our review, we affirm the trial court’s
revocation of the Defendant’s community corrections sentence.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Lonnie Maze, III, Nashville, Tennessee, for the appellant, Nathaniel Kelly.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Rob McGuire, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                          OPINION

                                FACTUAL BACKGROUND

       In January 2009, the Defendant was indicted for sale of less than .5 grams of a
Schedule II controlled substance within 1,000 feet of a school, a Class B felony. Pursuant
to a negotiated plea agreement, the Defendant pled guilty to the sale of a Schedule II
controlled substance under .5 grams, a class C felony, and received an eight-year sentence,
at thirty-five percent release eligibility, with the sentence to be served on community
corrections. The sentence was to run concurrently with a sentence the Defendant had
received in another case.

       On June 14, 2010, the Defendant’s community corrections officer filed a violation
affidavit with the court alleging that the Defendant had violated the conditions of his
community corrections in the following respects: (1) he had failed to obtain employment
within thirty days; (2) he had only paid fifteen dollars towards his required monthly court
costs payments; (3) he was behind four months on paying his thirty-dollar-per-month
community corrections supervision fees; and (4) he was behind twenty-four hours on his
sixteen-hour per month community service requirement. A revocation hearing was held on
September 2, 2010, and the trial court retired the warrant; the Defendant remained on
community corrections.

       On December 13, 2010, the Defendant’s community corrections officer filed a second
violation affidavit alleging that the Defendant had not reported to see her since October 27,
2010, and was considered an absconder. A hearing on the warrant was held on February 23,
2011, and after hearing the evidence, the trial court took the matter under advisement until
March 24, 2011, to allow the Defendant an opportunity to complete his job training and
community service work. The March 24, 2011 court date was a status report date rather than
a hearing date. The revocation hearing, which is the subject of the instant appeal, occurred
on May 5, 2011.

        At the revocation hearing, the Defendant’s community corrections officer, Michelle
Casteel, testified that since the February 23, 2011 hearing, the Defendant continued to violate
the terms of his community corrections in the following ways: (1) he failed to report weekly;
(2) he failed to provide proof of employment; and (3) he failed to complete any community
service work. She explained that during the February 23, 2011 hearing, a lady at the hearing,
Ms. Guess, volunteered to employ the Defendant at a home healthcare business. Ms. Casteel
testified that she facilitated the exchange of information between the Defendant and Ms.
Guess, and March 24, 2011, was set as a status date to check the Defendant’s progress. She
also testified that prior to the status date, she received a letter from Ms. Guess stating that she
hired the Defendant on March 2, 2011, and that he was currently in training. Ms. Casteel
brought the letter to the status hearing on March 24, 2011, and the revocation hearing was
then continued until May 5, 2011.

      Ms. Casteel testified that the Defendant had only reported to see her once since the
September 2, 2010 hearing. Ms. Casteel further testified that the Defendant told her that he
had been unable to report because he was involved in various training programs pertaining

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to his home healthcare employment. However, Ms. Casteel testified that she had called Ms.
Guess approximately a week before this hearing, and Ms. Guess reported that she had not
seen the Defendant for “a couple weeks” and that the training sessions the Defendant
mentioned were completed two months prior. Ms. Casteel explained that the Defendant was
required under the terms of his community corrections to report to her weekly. However,
she testified that, since the February 23, 2011 hearing, the Defendant had only made three
in-office appointments and that she “may not see him for two weeks prior or two weeks
following.”

       Ms. Casteel also testified that the Defendant was behind on his community service
work. She explained that the Defendant was required to complete sixteen hours of
community service per month but that she had not received any hours since September 2010.
Ms. Casteel further testified that “everything ha[d] been an issue with [the Defendant]” and
characterized his overall performance on community corrections as “None, unmotivated.”

       The Defendant also testified at the revocation hearing. He testified that he had done
several required training classes for the new job over a two week period and that he was
waiting on Ms. Guess to get him “bonded and find . . . a home to put [him] in.” 1 The
Defendant testified that Ms. Guess told him at the March 24, 2011 status hearing that she still
did not have a home to put him in, and at that point, he started seeking other employment.
The Defendant further testified that, as a result of his job search, he had an interview with
Burger King scheduled for the day of the hearing.

        When asked about his failure to complete his community service, the Defendant
responded, “I have no excuse for the community service work, I feel like to me I needed to
get a job first off to look for employment to get some money to pay my fees and stuff like and
everything like that.” The Defendant testified that the trial court told him “30 days of
employment, so that is what I was looking for” but conceded that he could have gotten his
community service “out the way.” Regarding his failure to meet with Ms. Casteel, the
Defendant testified that he only met with her three times because he believed that his meeting
with her before court counted as contacts. The Defendant stated that he knew that the trial
court and the assistant district attorney general were “tired of seeing” him and that Ms.
Casteel was “tired of going through this[.]” He also stated that he was tired of going through
this as well and reiterated that he had an interview scheduled for that day.

       On cross-examination, the Defendant admitted that he was behind on his community


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  The Defendant explained that being “bonded” means “an employer might be more willing to hire [him] if
something comes up missing because he’s bonded they know [he] would give it back.” The court added that
the State requires a person to be bonded to work in home healthcare.

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service prior to the February 23, 2011 hearing. He also admitted that he had stopped
reporting at the end of October 2010, after a new violation warrant was taken out on him.

       After finding that the Defendant had violated the terms of his community corrections
sentence, the trial court revoked the Defendant’s community corrections and ordered him to
serve his original sentence in confinement. The trial court also granted the Defendant credit
for previous jail time, totaling over a year.

       The Defendant perfected a timely appeal.


                                          ANALYSIS

       The Defendant contends that the trial court erred in revoking his community
corrections sentence and ordering him to serve his original sentence in confinement rather
than imposing a period of shock incarceration followed by community corrections.
Additionally, the Defendant alleges that the trial court failed to state, orally or in writing, the
evidence or factors it relied upon in making its determination to revoke his community
corrections sentence and requests a new revocation hearing. The State responds that the
court properly revoked the Defendant’s community corrections sentence and that the trial
court’s oral statements, memorialized in an “authenticated verbatim transcript of the
hearing[,]” substantially comply with the written requirement.

       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 required only 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. Tenn. Code Ann. § 40-36-106(e). The trial court may then
“resentence the defendant to any appropriate sentencing alternative, including incarceration,
for any period of time up to the maximum sentence provided for the offense committed, less
any time actually served in any community-based alternative to incarceration.” Tenn. Code
Ann. § 40-36-106(e)(4).




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       The community corrections program was created as an alternative to incarceration that
provides flexibility and promotes accountability, while reducing the number of “nonviolent
felony offenders” in the state prison system. Tenn. Code Ann. § 40–36–104; see also State
v. Estep, 854 S.W.2d 124, 126–27 (Tenn. Crim. App. 1992) (“[T]he community corrections
sentence provides a desired degree of flexibility that may be both beneficial to the defendant
yet serve legitimate societal purposes.”). While the program provides defendants with
freedom that would otherwise be removed if the defendant had been incarcerated, there are
specific remedies available to the trial court to ensure that those who fail to comply with the
program are sufficiently penalized for their noncompliance. Tenn. Code Ann. §
40–36–106(e)(4).

        After finding that the Defendant had violated the terms of his community corrections,
the trial court properly ordered his original sentence into execution. The Defendant’s
probation officer testified that he had missed several appointments, had not paid his
community corrections fees, had not secured a job, and had not completed his required
community service hours. Although the Defendant offered excuses as to why he had missed
several appointments, had not paid his fees, and had not secured a job, the Defendant
admitted that he had not completed his community service and offered no excuse for his
noncompliance. Because there is substantial evidence that the Defendant violated the terms
of his release, the trial court did not abuse its discretion by ordering the Defendant to serve
the balance of his sentence in confinement.

        Regarding the Defendant’s contention that the trial court failed to make an oral or
written statement setting forth the factors it relied on in making its determination, we
conclude that the oral statement given by the trial court before ordering the original sentence
into effect was sufficient under State v. Delp, 614 S.W.2d 395 (Tenn. Crim. App. 1980). In
Delp, the trial court made no written findings, but this court held that the trial judge’s
“authentication of the verbatim transcript of the hearing, including his findings, was
substantial compliance with the requirement that he make a written statement of the evidence
relied on and the reasons for his action in revoking probation.” Id. at 397. In the instant case,
the trial court found that the Defendant had violated the terms of his community corrections.
The trial court also stated, “It’s obvious to the Court he can’t even do the minimum
requirements under Community Corrections and has been unable to do so since he was
placed on Community Corrections. . . . he’s not going to get it done, revoke his Community
Corrections, place his sentence into effect.” Therefore, the oral statement made by the trial
court and its authentication of the hearing transcript constituted substantial compliance with
the requirement that it make a written statement of the evidence relied on in revoking the
Defendant’s community corrections.




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                              CONCLUSION

Accordingly, the judgment of the trial court is affirmed.




                                           _________________________________
                                           D. KELLY THOMAS, JR., JUDGE




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