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No. 02C01-9207-CR-00167
For the Appellant: At Trial: Jack L. Payne Counsel at Law Memphis TN. On appeal: Howard L. Wagerman William B. Seligstein WAGERMAN & SELIGSTEIN Memphis TN.
For the Appellee: Charles W. Burson Counsel General & Reporter. Cyril V. Fraser Counsel for the State Nashville TN. John W. Pierotti District Counsel General. Terrell L. Harris Gregory C. Krog Jr. Judson W. Phillips Phillip Ray Baker Assistant District Counsels Memphis TN.
White Birch Jr. Wade
The Hon. Justice Penny J. White

This is an appeal as of right from a revocation of probation by the Shelby County Criminal Court. In 1991 Darrell Wilson was sentenced to eight years on three counts of unlawful possession with intent to sale cocaine. Court suspended all but sixty days of the sentence allowed the appellant to serve the sentence on weekends and placed the appellant on four years of intensive probation. *fn1 In May 1992 the state petitioned for revocation of appellant's suspended sentence for violation of the conditions of probation. Specifically the state alleged that appellant failed to make a full and truthful report to his/her probation officer in person/or in writing as directed in violation of condition two of his probation and that the appellant violated condition three of his probation which required that he abstain from the use of intoxicants or narcotics and not visit places where intoxicants or narcotics were dispensed sold or used. Court conducted a revocation hearing and found that the state had proved the violation. The court revoked the appellant's probation and sentenced him to eight years in the custody of the Department of Corrections. *fn2 From that order the appellant appeals claiming that Court erred in revoking his probation and in failing to consider sentencing alternatives other than incarceration. We affirm the judgment of the trial court.

The revocation of a suspended sentence rests in the sound discretion of the trial Court. Finley v. State 214 Tenn. 149 378 S.W.2d 169 (Tenn. 1964). The trial Court's duty at a probation revocation hearing is to exercise a conscientious judgment after adducing sufficient evidence to allow an intelligent decision. State v. Milton 673 S.W.2d 555 (Tenn. Crim. App. 1984). In reviewing the trial court's actions it is our obligation to examine the record and determine whether the trial Court has exercised a conscientious and not an arbitrary judgment. State v. Mitchell 810 S.W.2d 733 (Tenn. Crim. App. 1991). Before a court will be found to have abused its discretion in a probation revocation case it must be demonstrated that the record contains no substantial evidence to support the conclusion of the trial Court that a violation of the conditions of probation has occurred. State v. Delp 614 S.W.2d 395 398 (Tenn. Crim. App. 1980) perm. to appeal denied (Tenn. 1981). When a trial court exercises a conscientious and intelligent judgment that is not arbitrary the decision to revoke probation will be upheld. Hooper v. State 201 Tenn. 156 297 S.W.2d 78 (Tenn. 1956); State v. Williamson 619 S.W.2d 145 (Tenn. Crim. App.) perm. to appeal denied (Tenn. 1981). Here the trial court's decision to revoke probation was conscientiously exercised. We will therefore not disturb the holding.

In the case at bar the appellant admitted that he missed seven appointments with his probation officer. While he offers justification for those missed appointments the fact remains that he violated a condition of his probation by failing to report to his probation officer as directed. Therefore given the appellant's admission and the probation officer's testimony substantial evidence supports the trial Court's finding that the appellant violated rule two of his probation.

The probation officer also testified that the appellant breached rule three of his probation by testing positive on a drug test for marijuana. The appellant argues that he was the victim of "secondhand smoke" to which he was inadvertently exposed while performing a plumbing job for his employer. Thus the appellant admits that he was present in a place where drugs were being used. He claims however that he was there as a requirement of his employment and that any marijuana smoke that he inhaled was incidental. The court found that the testimony of Darrell Wilson regarding being around marijuana smoke and by virtue of incidental inhaling it got into his bloodstream is a blatant lie. That is not a medical fact. It cannot happen that way. You would have to actually receive it from the other direct for it to get into your lungs and to be taken into your body. I reject that out of hand.

We are concerned with both the appellant's testimony and Court's findings. The appellant denies that he used narcotics. He theorizes that he tested positive because of passive inhalation of marijuana. His opinion that his urine test was positive as a result of the inadvertent inhaling of marijuana smoke was offered without objection. *fn3 His Counselor attempts to buttress this position by reference in his brief to the "several findings of the Environmental Protection Agency and the officer of the surgeon general." *fn4

The trial court found that appellant's testimony was a "blatant lie." Since Court had no expert testimony from which to conclude that the appellant's version was "not a medical fact we assume that Court was taking judicial notice. The conclusion was not an appropriate subject for judicial notice, however. The result is that the record bears unqualified, yet unchallenged, opinion testimony by the appellant and an unsupported finding by the trial court. In this circumstance, we view the probation officer's testimony that the appellant tested positive for marijuana as the only credible testimony on this issue. The appellant's unqualified opinion is entitled to little, if any, weight. Based on the credible testimony, we find substantial evidence to support the trial court's conclusion that appellant violated condition three of his probation.

Once a violation of probation has been established, the trial Court shall have the right . . . to revoke the probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered or otherwise in accordance with Sec. 40-35-310." Tenn. Code Ann. Sec. 40-35-311(d)(1990 Repl.). After hearing the evidence the trial court held:

Court has no choice but to grant the petition for the state. He is therefore revoked.

Court then imposed the original sentence. *fn5

The second issue raised by the appellant is whether Court erred in failing to consider alternatives other than incarceration for the entire sentence once it found that appellant had violated the conditions of his probation. The thrust of appellant's argument is that his violations were slight and did not justify an imposition of the entire sentence.

The statutes authorizing a trial court to revoke a defendant's probation allow Court once a violation has been found to impose the original sentence. Our determination is whether the trial court abused its discretion in ordering this violating probationer to serve his entire sentence in light of the nature of his violations. While we acknowledge that the imposition of a sentence upon revocation must be in accordance with the Tennessee Criminal Sentencing Reform Act of 1989 the statute clearly authorizes the trial Court to impose the entire sentence upon violation. We as appellate Court may disagree with the sentence imposed by the trial court. We may wish that the Court had considered community corrections or other alternatives to imposition of the entire sentence. Our obligation however is only to determine whether the trial Court abused discretion. In the absence of such abuse our different opinions are of no consequence.

In this case the trial Court was faced with an appellant who had received a suspended sentence notwithstanding his prior involvement in three sales of crack cocaine. At the original sentencing hearing Court was reluctant to suspend the sentence but granted the suspended sentence because of the appellant's employment and family situation. Having extended that opportunity to the appellant the court was justified in ordering the service of the sentence upon appellant's violation. While it is true that the nature of appellant's violations are not the most severe imaginable the appellant nonetheless has demonstrated his unwillingness to capitalize on the opportunity granted him by Court. His testimony that he missed probation appointments because he had to work emphasizes his failure to recognize the significance of his obligation to Court system. His positive marijuana test contradicts his testimony that he no longer used drugs and further accentuates his cavalier attitude toward the benefits bestowed upon him. We certainly encourage trial Court to consider community corrections and other creative alternatives to incarceration in this scenario but we do not find that the trial Court abused discretion in confining this appellant.

For these reasons we affirm the judgment of the trial court.

Penny J. White Court


Adolpho A. Birch Jr. Court

Gary R. Wade Court


*fn1 Although Court refers to the sentence as a twelve-year sentence in the revocation hearing the judgment forms reflect that Wilson was sentenced to three four-year terms one of which was consecutive to the others for an effective eight-year sentence.

*fn2 See note 1 supra and note 3 infra.

*fn3 While appellant was unqualified to give this opinion Tenn. R. Evid. 701 the state did not object.

*fn4 Contra Perez-Reyes Guiseppi Mason & Davis Passive inhalation of marijuana smoke and urinary excretion of cannabinoids, 34 Clinical Pharmacology & Therapeutics Journal 36 (July 1983)("Allegations that urine containing more than 50 ng/ml cannabinoids by the EMIT assay are the result of the passive inhalation of marijuana smoke are untenable or at best highly questionable.").

*fn5 Court imposed a twelve-year sentence but noted that the original judgment "will speak for itself." The original judgments sentence the appellant to eight years.