State v. Amanda Markowicz

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9804-CC-00144
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE July 7, 1999

Cecil Crowson, Jr. MARCH 1999 SESSION Appellate C ourt Clerk

STATE OF TENNESSEE, * C.C.A. # 03C01-9804-CC-00144

Appellee, * BLOUNT COUNTY

VS. * Hon. D. Kelly Thomas, Jr., Judge

AMANDA MARKOWICZ, * (Revocation of Community Corrections Sentence) Appellant. *

For Appellant: For Appellee:

Gregory D. Smith, Attorney John Knox Walkup One Public Square, Ste. 321 Attorney General and Reporter Clarksville, TN 37040 and Michael J. Fahey, II Mack Garner Assistant Attorney General District Public Defender Criminal Justice Division 419 High Street 425 Fifth Avenue North Maryville, TN 37804 Nashville, TN 37243 (on appeal) Edward P. Bailey, Jr. Edgar A. Wilder, Attorney Assistant District Attorney General 222 Ellis Avenue Blount County Courthouse Maryville, TN 37804 363 Court Street and Maryville, TN 37804 Richard L. Gann, II, Attorney P.O. Box 6888 Maryville, TN 37802 (at trial)

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE OPINION

The defendant, Amanda Markowicz, appeals the trial court's

revocation of a sentence under the community corrections program. The single

issue presented for review is whether the trial court erred by revoking the community

corrections sentence.

We affirm the judgment of the trial court.

On December 4, 1997, the defendant entered four guilty pleas for

which she received the following concurrent sentences:

Facilitation of aggravated burglary Two years, Range I

Burglary Two years, Range I

Theft over $500 One year, Range I

Theft over $1,000 Two years, Range I

The trial court entered an alternative sentencing order which included a behavioral

contract and conditions on the community corrections sentence. Included among

the conditions was an acknowledgment of the authority of the trial court to revoke

community corrections and to impose a maximum sentence. Tenn. Code Ann.

§ 40-36-106.

On February 25, 1998, a warrant was issued against the defendant for

her failure to report to her supervisor and for her failure to perform the required

amount of community service. At the revocation hearing, the defendant did not

dispute her failure to report but did contend that marital difficulties with her husband

and an incorrect telephone number had contributed to a breakdown in

communications with her supervising officer, Patricia Ridings. The defendant also

claimed that she had performed four hours of community service work in December

2 but conceded that she had otherwise failed to meet her responsibilities in that

regard. At the conclusion of the hearing, the trial court revoked the community

corrections sentence and, rather than imposing a prison term, ordered six months in

jail after which the defendant would be permitted to reapply for community

corrections.

The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann.

§ 40-36-103. The community corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant

meets the minimum requirements of the Community Corrections Act of 1985,

however, does not mean that he or she is entitled to be sentenced under the Act as

a matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).

The following offenders are eligible for community corrections:

(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 as provided in title 39, chapter 2 [repealed], parts 1-3 and 5-7 or title 39, chapter 13, parts 1-5;

(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;

(6) Persons who do not demonstrate a pattern of committing violent offenses; and

3 (7) Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).

Once a defendant violates the terms of his community corrections

sentence, the trial court may revoke the sentence and impose a new sentence:

The court shall also possess the power to revoke the sentence imposed at any time due to the conduct of the defendant or the termination or modification of the program to which the defendant has been sentenced, and the court may 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)(3).

Trial courts have authority to revoke a community corrections sentence

based upon the conduct of the defendant. Tenn. Code Ann. § 40-36-106(e)(3). A

trial judge's decision to revoke a defendant's release on community corrections

should not be disturbed unless there is an abuse of discretion. State v. Harkins, 811

S.W.2d 79, 82 (Tenn. 1991). In order to find an abuse of discretion, it must appear

that the record contains "no substantial evidence to support the conclusion of the

trial judge that a violation of the conditions ... occurred." Id.

The same principles applicable to a probation revocation are relevant

to the revocation of community corrections. Id. at 83. The trial judge is not required

to find that a violation of the terms of probation has occurred beyond a reasonable

doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). Rather, the

existence of a violation of probation need only be supported by a preponderance of

the evidence. Tenn. Code Ann. § 40-35-311(d). Here, the trial court had a factual

4 basis to revoke the sentence because the defendant "just quit" in her performance

of the terms and conditions of the alternative sentence. The trial court observed that

the defendant had not taken advantage of the potential benefits of the program

because she had made little effort to develop a positive relationship with her

supervisor. Some consideration was given to a "halfway house" alternative which

might have been available but was not ordered; however, the trial court chose a jail

sentence. There is insufficient information in this record for this court to conclude

that there was any abuse of discretion in the imposition of a six-month jail sentence

rather than continuing participation in the community corrections program or

placement in a different program with even greater restrictions on release. Because

the trial court saw and heard the defendant firsthand and must be afforded

reasonable discretion in the imposition of alternative sentences, this court cannot

disagree.

Accordingly, the judgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge

CONCUR:

_____________________________ Norma McGee Ogle, Judge

_____________________________ Cornelia A. Clark, Special Judge