As one Van Buren County resident found out, it’s difficult to reverse a probation revocation on appeal. The decision to revoke a defendant’s probation rests within the sound discretion of the trial court, and the court of criminal appeals “will not disturb the trial court’s ruling absent an abuse of that discretion.” To show an abuse of discretion, “there must be no substantial evidence to support the conclusion of the trial court that a violation of the conditions of probation has occurred.”
On September 24, 2012, the defendant pled guilty to attempted to tampering with evidence, a Class D felony, delivery of a Schedule II drug, a Class C felony, and theft under $500, a Class A misdemeanor. For these crimes, Judge Stanley sentenced the defendant to five years, eleven months, and twenty-nine days, with thirty days in confinement and the remainder on supervised probation. Almost a year later, a warrant was filed alleging the defendant violated her probation by committing disorderly conduct and criminal trespass. The warrant was later amended to show those charges had been dropped but that the defendant committed additional violations of probation including driving under the influence, possession of a Schedule IV drug, and possession of a Schedule III drug. Again, the warrant was amended to add further violations, specifically aggravated burglary, theft, domestic assault, simple possession, possession of a Schedule III drug, possession without a prescription, and initiating a false report.
At the probation revocation hearing, the defendant’s probation officer testified that the defendant did not make any payments toward her court costs and fines until she picked up the disorderly conduct and criminal trepass charges. While these charges were dismissed, the officer testified that the defendant had since been arrested on the other charges listed above. Further, the defendant failed to start her community service work while she was unemployed and she still owed restitution to the victim of the theft.
Before taking the witness stand, the defendant addressed the court:
I guess all I can say is I did violate the terms of my probation. I do have a bit of a drug problem. I want to say that I’m sorry. I apologize but I would just ask that you look at some of the things that my attorney has mentioned. I understand I have a lot of charges against me. I don’t know what else to say for myself.
On the stand, the defendant testified that she had two children by age sixteen and two children that died when she was eighteen. Her father died when she was young. Her mother recently passed away. She had been in the judicial system since age fourteen, and had been taken into state custody at age fifteen. At age eighteen, her two oldest children were taken away from her but she had recently established a relationship with them. Despite her difficult childhood, the defendant acknowledged that this was not an excuse for her behavior as an adult. Finally, with regard to her community service obligation, the defendant testified that she was working twelve hours a day, seven days a week, until she had to stop working because of an injury in a car accident and the need to take care of her ill mother.
After hearing the proof and the arguments of counsel, the trial court revoked the defendant’s probation and ordered her to serve her original sentence, with credit for time served. The court emphasized that the Adult Recovery Program or Drug Court Program was not a get-out-of-jail-free free card, as some people think of it. He noted that all the defendant had to do was ask her probation officer for help with drug addiction and the officer would have assisted her with finding housing and treatment. However, the defendant had not even asked her probation officer for help. Regarding her upbringing, the court stated:
[W]hen you become an adult there comes a time when you have to pay for what you do and you have to take personal responsibility for what you do. I do agree that you have had a difficult childhood, a difficult young adult life but at some point that’s got to come to an end. You had an opportunity to have a job. You had an opportunity to do better with your children and it just continues to get worse and worse and worse and you continue to do these things knowing very specifically that you faced almost six years in jail.
Finally, the court commented that there was a lot of harm to the community in driving under the influence, aggravated burglary, attempting to tamper with evidence, and delivering amphetamines, and that the “citizens of Van Buren County would be aghast if I let you walk out of this courtroom knowing that you have done what you have and not taken really any steps necessary to try to correct it or make yourself better.”
On appeal, the defendant argued that the trial court erred by (1) not considering the presentence report, (2) using her prior convictions as a basis for the revocation, and (3) basing its decision on political influence and vindictiveness. However, the court of criminal appeals rejected all of these arguments. Regarding the presentence report, the court first noted that the obligation to consider a presentence report is for sentencing hearings, not probation revocation hearings. See generally T.C.A. § 40-35-210; State v. Thacker, No. M2011-01061-CCA-R3-CD, 2012 WL 1072005, at *3 (Tenn. Crim. App. Mar. 28, 2012). Even so, the trial court had considered the defendant’s testimony about her family history and drug abuse. Concerning the trial court’s statement about the defendant’s prior convictions, the appellate court noted that it was in response to a question by defense counsel – “How can the public be hurt by giving her the opportunity to get off these drugs and run her life successfully?” Finally, responding to the defendant’s third argument that the decision was based on political influence and vindictiveness, the court stated that “[t]he record . . . is devoid of any proof supporting this claim.” In summary, the Tennessee Court of Criminal Appeals explained:
While on probation for three different offenses, [the defendant] was arrested multiple times, incurred numerous criminal charges in two different counties, lied to her probation officer, and repeatedly disregarded her obligation to pay fines, restitution, and perform community service. Based on this record, the trial court properly ordered [the defendant] to serve the balance of her original sentence in confinement. Accordingly, she is not entitled to relief.
State v. Yearwood, No. M2014-01622-CCA-R3-CD (Tenn. Crim. App. Mar. 11, 2016).