State v. Lowell Clayton Gredig, Jr.

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 28, 1999
• Docket: 03C01-9801-CC-00017
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY 1999 SESSION May 28, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9801-CC-00017 Appellee, ) ) Blount County v. ) ) Honorable D. Kelly Thomas, Jr., Judge LOWELL CLAYTON GREDIG, JR., ) ) (Probation Revocation) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

Natalee S. Hurley John Knox Walkup Assistant Public Defender Attorney General & Reporter 419 High Street 425 Fifth Avenue North Maryville, TN 37804 Nashville, TN 37243-0493 (At Trial) Michael J. Fahey, II Gerald L. Gulley Assistant Attorney General P. O. Box 1708 425 Fifth Avenue North Knoxville, TN 37901-1708 Nashville, TN 37243-0493 (On Appeal) Michael L. Flynn District Attorney General 363 Court Street Maryville, TN 37804-5906

Lisa McKenzie Assistant District Attorney General 363 Court Street Maryville, TN 37804-5906

OPINION FILED: _____________________________________

AFFIRMED

L. T. LAFFERTY, SENIOR JUDGE OPINION

The appellant, Lowell Clayton Gredig, Jr., appeals as of right from the revocation

of his probation. The appellant challenges both the revocation and the denial of an

alternative sentence, insisting that the trial court erred in revoking his probation and in

sentencing him to incarceration in lieu of imposing an alternative sentence. After a careful

review of the entire record, briefs and arguments of the parties, and applicable law, we

affirm the trial court’s judgment.

I.

PROCEDURAL BACKGROUND

On December 5, 1994, the Blount County grand jury indicted the appellant in Cause

No. 8668 for statutory rape, occurring in November, 1994. On October 1, 1996, the

appellant entered a plea of guilty to statutory rape and was sentenced to eighteen months

in the Blount County Jail. The sentence was suspended, and the appellant was placed on

immediate supervised probation. Special conditions of probation were imposed by the trial

court.

On February 11, 1997, the trial court issued a violation of probation warrant for the

appellant. The warrant was premised upon the appellant’s failure to notify his probation

officer of his arrests for assault and public intoxication on February 7 and 10, 1997; failure

to maintain employment; failure to notify his probation officer of his change of address; a

violation of court imposed curfew; failure to attend AA or GED classes as instructed; and

failure to pay court costs. On April 8, 1997, the appellant stipulated to the violations. The

trial court revoked the appellant’s probation and ordered the appellant to serve ninety days

in the Blount County Jail and then be released to intensive probation for the balance of the

sentence.

On April 28, 1997, the Blount County grand jury indicted the appellant for assault

in Cause No. 10214. On August 1, 1997, the appellant pled guilty to assault and was

-2- sentenced to eleven months and twenty-nine days, to run consecutively to the statutory

rape conviction in Cause No. 8668. The trial court suspended the sentence and placed

the appellant on immediate supervised probation. The trial court entered a supplemental

probation order enlarging on the special conditions of probation to be performed by the

appellant.

On May 27, 1997, the trial court issued a warrant for violation of probation, Cause

No. 8668, by the appellant based upon his arrest for simple assault on May 26, 1997.

Again, the appellant stipulated to the violation of probation. The trial court revoked

probation, requiring the appellant to serve ninety days and then be re-released on intensive

probation. Additionally, the trial court ordered the appellant to reside in a halfway house

for a minimum of six months as a condition of probation.

On November 21, 1997, the trial court issued another warrant for the appellant for

violation of probation in Cause Nos. 8668 and 10214. The warrant alleged the appellant

was arrested on November 7, 1997, for public intoxication and resisting arrest; failed to

advise his probation officer about his residence or employment; used alcohol; failed to

reside at a halfway house; failed to report to his probation officer since November 4, 1997;

and failed to pay court costs.

After the conclusion of a revocation proceeding, the trial court entered orders on

both causes on January 9, 1998. The trial court revoked the appellant’s probation in

Cause No. 8668, allowing the appellant 236 days jail credit. In Cause No. 10214, the trial

court revoked the appellant’s probation for assault, modifying the judgment to eleven

months and twenty-nine days in jail, fifty percent release eligibility prior to release on

probation, and zero percent release eligibility in all other areas. The court allowed the

appellant 62 days jail credit.

II.

VIOLATION OF PROBATION

-3- First, the appellant argues the trial court erred in revoking his probation on the

grounds there was no substantial evidence to support the trial court’s decision to revoke

probation, and the trial court considered only the nature and character of the offense,

thereby constituting “too narrow a view” of the relevant factors. The state submits there

is ample evidence in the record to support the trial court’s decision.

A trial court may revoke probation and order the imposition of the original sentence

upon a finding by a preponderance of the evidence that a person has violated the

conditions of probation. Tenn. Code Ann. § 40-35-311. The judgment of the trial court will

not be disturbed on appeal, unless it appears that there has been an abuse of discretion.

For an appellate court to be warranted in finding an abuse of discretion in a probation case,

it must be established that the record contains no substantial evidence to support the

conclusion of the trial judge that a violation of the conditions of probation has occurred.

State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The evidence at the revocation hearing

need only show that the trial court exercised a conscientious and intelligent judgment in

making its decision to revoke probation. State v. Leach, 914 S.W.2d 104, 106 (Tenn.

Crim. App. 1995).

A.

Revocation Proceeding

Marcus Miller, probation officer, testified that the appellant began probationary

supervision on October 1, 1996, with Probation Officer Carolyn Brewer. The appellant

violated this period of probation by being arrested for new offenses, assault and public

intoxication. The appellant’s probation was thereafter revoked, and he received a ninety-

day sentence in jail along with intensive probation. Shortly thereafter, the appellant was

arrested for simple assault. Following a hearing, the appellant was ordered to serve

another period of ninety days and was released on intensive probation, with the special

condition that he enter a halfway house for six months. The appellant failed to comply with

this special condition. Miller also testified that the appellant failed to pay his court costs,

-4- failed to attend the Anger Management Program, and failed to report since October, 1997.

During the appellant’s second period of intensive probation, the appellant had three new

arrests.

Miller testified that the appellant was arrested twice for public intoxication and

resisting arrest in November, 1997. In December, 1997, the appellant was convicted of

theft of property over $500 for taking his mother’s car and wrecking the same. He was

sentenced to eleven months and twenty-nine days. Miller agreed he had not contacted any

halfway houses to determine the appellant’s attendance or lack thereof. The appellant

informed Miller he had been denied acceptance at Stepps House for failure to pay back

rent.

The appellant testified he is married and has a four-month-old child.1 Prior to his

arrest, the appellant was employed with Burris Wood Company, making hardwood floors.

The appellant described his income “as not much.” Upon release for his second intensive

probation period, the appellant attempted to enter Cornerstone, a halfway house, but his

bed had been given away. The appellant then contacted Stepps House, which told him

he could sleep on a couch if there was no bed available. However, Stepps House refused

to honor this commitment and denied him acceptance for non-payment of back rent.

As to failure to report, the appellant testified that he knew he was in violation for not

entering a halfway house and was too scared to report. The appellant admitted he was

arrested in November, 1997, for public intoxication and resisting arrest. This incident arose

over an argument with his mother-in-law. As to the theft of his mother’s car, the appellant

testified he was drinking, got the car keys from his mother, went looking for his wife,

blacked out and wrecked the car, overturning it three times. The appellant testified he is

an alcoholic and cannot control his drinking, although he attempted treatment in 1993.

During the appellant’s many arrests, he has never been sober.

1 This child was born while the appellant was serving one of the ninety-day sentences.

-5- In revoking the appellant’s probation, the trial court found clear evidence that the

appellant violated the terms of probation. The trial court found the appellant continued to

engage in the same criminal activity since October, 1996, the original probation term. In

commenting on the appellant’s prior revocations, the trial court held, “There’s no question

that alcohol is a problem in Mr. Gredig’s life, but the other problem is that nothing can be

done about that if he won’t cooperate and keeps violating the law. And that’s what he

does.”

We find there is substantial evidence in this record to support the trial court’s

revocation of the appellant’s probation. There is no merit to this issue.

B.

Alternative Sentence

The appellant contends the trial court was in error for not considering an alternative

sentence, such as community corrections program or split confinement. Further, the

appellant contends the trial court made no findings regarding the suitability of alternative

sentencing. The state does not specifically address this issue in its brief.

The dilemma in this cause, as to this issue, is the record of the revocation

proceedings does not reflect that the issue to the appropriateness of an alternative

sentence was ever addressed to the trial court. The record does not contain arguments

of the parties as to whether the trial court should consider such remedy, nor does the trial

court address any question of the viability of an alternative sentence in its ruling. Thus, this

issue has been waived by the appellant. Tenn. R. App. P. 27 (a)(7); State v. David Glen

Haynes, No. 03C01-9602-CC-00075, 1998 WL 125560 (Tenn. Crim. App., Knoxville,

March 23, 1998).

The trial court’s judgment is affirmed.

-6- ________________________________________ L. T. LAFFERTY, SENIOR JUDGE

CONCUR:

___________________________________ JERRY L. SMITH, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

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