State v. Marsh Barham

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 02C01-9904-CC-00128
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JULY 1999 SESSION FILED October 6, 1999

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate Court Clerk ) Appellee, ) C.C.A. No. 02C01-9904-CC-00128 ) vs. ) Chester County ) MARSH BARHAM, ) Hon. Franklin Murchison, Judge ) Appellant. ) (Community Corrections ) Revocation)

FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL D. RASNAKE (at hearing) PAUL G. SUMMERS Assistant Public Defender Attorney General & Reporter 227 W. Baltimore St. Jackson, TN 38301 R. STEPHEN JOBE Asst. Attorney General CLIFFORD K. McGOWN (on appeal) 425 Fifth Ave. North Attorney at Law 2d Floor, Cordell Hull Bldg. P.O. Box 26 Nashville, TN 37243-0493 Waverly, TN 37185 JAMES G. (JERRY) WOODALL District Attorney General

NICK NICOLA Asst. District Attorney General P.O. Box 2528 Jackson, TN 38301

OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE OPINION

The defendant, Marsh Barham, appeals from the revocation of his

Community Corrections sentence. Barham contends that the trial court should have

imposed a short period of incarceration followed by intensive probation and drug

treatment, rather than requiring that he serve his entire sentence in the Department

of Correction. Upon review of the record, the briefs of the parties, and the

applicable law, we affirm.

Barham was convicted of sale and delivery of cocaine (case 3384)

and theft under $500 (case 3383) in 1994. He received a five-year sentence for the

sale and delivery conviction and an eleven month, 29 day sentence for theft,

imposed concurrently for an effective sentence of five years. Barham then entered

the Department of Correction boot camp program and was released to serve the

balance of his five-year sentence on probation in 1995. In 1997, Barham received

a second conviction of sale and delivery of cocaine (case 3567). As part of his plea

agreement, he received a six-year sentence to be served in the Community

Corrections program consecutively to the sentence for case 3384, the five-year sale

and delivery conviction. The plea agreement further provided for Barham's

probation in case 3384 to be revoked and the balance of that sentence to be served

in the Community Corrections program.

Later in 1997, a violation warrant issued in case 3384. By agreed

order, the defendant was ordered to serve 45 days for the violation and to return

thereafter to Community Corrections. By all accounts, the defendant served the 45

days but never again reported to the Community Corrections program.

In May 1998, a revocation warrant issued which alleged the defendant

had failed to pay fees and costs, failed to report, and had obtained new criminal

charges. A hearing was conducted at which Barham admitted he had failed to report to the Community Corrections program following his 45-day incarceration.

He claimed he misunderstood the terms of the order; he believed he was to serve

the jail time and then be released from further supervision. Barham also admitted

he had received a new conviction. He claimed he had been unable to pay his fees

and costs because he was having a difficult time earning money honestly, as he

was no longer selling drugs.

At the conclusion of the hearing, the trial court found Barham

incredible and revoked him from the Community Corrections program in favor of

incarceration.

The issue presented by Barham is whether the trial court erred in

revoking his Community Corrections status and ordering him to serve his sentence

in the Department of Correction. In a revocation proceeding, the state has the

burden of proving the violation by a preponderance of the evidence. State v.

Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The trial court is entitled to exercise its

discretion to revoke a Community Corrections sentence upon a finding that the

defendant has violated the conditions of the sentence. Harkins, 811 S.W.2d at 82.

Before the trial court may revoke the Community Corrections sentence, the record

must contain sufficient evidence to permit the court to make an intelligent and

conscientious decision. Harkins, 811 S.W.2d at 82. Upon revocation, the court

may order the defendant to serve her sentence in confinement. Harkins, 811

S.W.2d at 82. On appeal, the trial court's order revoking a Community Corrections

sentence is subject to reversal only upon a showing of an abuse of discretion.

Harkins, 811 S.W.2d at 82. In order for an abuse of discretion to occur, the

reviewing court must find that the record contains no substantial evidence sufficient

to support the trial judge's conclusion that the violation of the terms of the sentence

has occurred. Harkins, 811 S.W.2d at 82.

3 In the case at bar, Barham's own testimony established that he

violated the terms of his Community Corrections sentence. Barham admitted that

he failed to report following the incarcerative period he served for his previous

revocation and that he had received a new conviction which he had not reported to

the supervisory authority. The trial court found the defendant's allegation that he

did not know he was subject to Community Corrections supervision to be incredible.

The only question before this court is whether the trial court was within its discretion

in removing Barham from the Community Corrections program and ordering him to

serve his remaining time in prison. We hold that the trial court acted within its

discretion. Barham has had repeated opportunities to serve his sentence in the

community. He began serving his sentence in case 3384 in boot camp followed by

probation. He proved himself unworthy of probation, accruing numerous alleged

violations. He was eventually transferred to Community Corrections supervision

as part of a plea bargain in case 3567. He violated the terms of that sentence and

served a short period of incarceration, which proved an insufficient deterrent to

further violations. Obviously, this defendant is one whose prospects of rehabilitation

are virtually nil. As the trial court aptly stated, "We have been dealing with Mr.

Barham for years and years, and he is not ever going to make it on any kind of

release program . . . ." The evidence more than sufficiently supports the trial court's

determination.

The judgment of trial court is affirmed.

_______________________________

4 JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_____________________________ JOSEPH M. TIPTON, JUDGE

_____________________________ JOHN EVERETT WILLIAMS, JUDGE