State v. Seymour

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9709-CR-00375
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST SESSION, 1998 December 8, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9709-CR-00375 ) Appe llant, ) ) SULLIVAN COUNTY V. ) ) ) HON. PHYLLIS H. MILLER, JUDGE PAUL J. SEYMOUR, ) ) Appellee. ) (AGGR AVATED ASSAUL T)

FOR THE APPELLANT: FOR THE APPELLEE:

JULIE A. MART IN JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter P.O. Box 426 Knoxville, TN 37901-0426 GEORGIA BLYTHE FELNER (On A ppea l) Assistant Attorney General 2nd Floor, Cordell Hull Building STEPHEN M. WALLACE 425 Fifth Avenue North District Public Defender Nashville, TN 37243

LESLIE S. HALE H. GREELEY WELLS, JR. Assistant Public Defender District Attorn ey Ge neral P.O. Box 839 Blountville, TN 37617-0829 EDWARD EUGENE WILSON (At Tr ial) Assistant District Attorney General 140 Blountville Bypass P.O. Box 526 Blountville, TN 37617-0526

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION The Defe ndan t, Paul J unior S eymo ur, app eals as of right from the revocation

of his probation by the Sullivan County Criminal Court. He contends that the trial

court erre d in revok ing his pro bation. W e affirm the judgm ent of the tria l court.

The facts reveal that on August 16, 1996, police officer Shannon Castle was

dispatched to a trailer park after receiving a call that Defendant was trying to run

over his wife with a motorcycle. When the officer arrived at the scene he stopped

Defen dant. Defend ant then got off the motorcycle and approached the officer in a

violent manner saying that the offic er wou ld have to use his gu n if he was going to

take Defendant to jail. Defendant also told the officer that his wife had stolen one

hundred dollars of his money and that he was going to k ill her. Defen dant’s wife told

the officer that Defendant had threatened to kill her and their children. Defendant

had told his family to leave the trailer, and then as Defendant’s wife was walking

down the road with her three children, Elizabeth (9), Paul (14) and Michael (4),

Defendant tried to run over them with a motorcycle at least twice.

Additionally, during the evening of Au gust 30, 199 6, Defenda nt becam e very

argume ntative with his 14-year-old s on and ch oked him several times. Later,

Defen dant pu lled a knife o n him a nd threa tened to kill him.

On April 14, 1997, Defendant pled guilty in the Sullivan County C riminal Court

to aggravated assault, felony reckless endangerment, simple assault, violation of

registration laws, and driving witho ut a mo torcycle licen se. Defendant received an

effective sentence of eight (8) years which was suspended and Defendant was

-2- placed on supervised probation. He was ordered to con tinue a nd ke ep all

counseling appointments, take his medications, perform 300 hours of com munity

service, an d stay in the state of T ennes see.

On April 16, 1997, and April 18, 1997, Probation Officer Bill Edwards filed

probation violation warrants. The warrants alleged, and Defendant admitted, that the

address he gave as his home address was false and that he had failed to notify the

probation officer of his change of address. Defendant also admitted that he failed

to call his prob ation office r, failed to con tinue his m ental hea lth treatme nt, and that

he left the state without permission. Defendant’s probation was revoked on August

1, 1997, and h e was ordere d the s erve h is sent ence in the Tennessee Department

of Correction.

In revoking Defendant’s probation, the trial court noted:

[T]hese were ve ry violent offen ses involvin g dang er to your wife, your children and it was very critical. One of the most critical things was that you continue your mental health trea tment.

...

[Y]ou did leave a voice mail message on April 16th indicating that you had moved, but you have not reported since then. You, in effect, absconded. You apparently, according to your ow n adm ission , that’s exactly what you did. You knew about transferring probation, you knew that it had to be done, yet it was never done before you moved around. You completely abandoned the men tal health treatment. The officers in these cases, one was opposed to probation because due to the violence of the offense, the other officer said you n eeded menta l health trea tment, stated the victims [Defendant’s wife an d children] were scared to death of you.

-3- A trial court may revoke probation and order the imposition of the original

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

violated a cond ition of prob ation. Tenn. Code Ann. §§ 40-35-310, 311. The

decision to revo ke pro bation rests w ithin the sound discretion of the trial cour t. State

v. Mitche ll, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Probation revocations

are subject to an abuse of discretion, rather than a de novo standard of review.

State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown

if the record is devoid o f substa ntial eviden ce to sup port the co nclusion that a

violation of proba tion has o ccurred . Id. The evidence at the revocation hearing

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

in making its decision . State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App.

1995). Once it is determined tha t a defendan t has violated his prob ation, the court

has the discretion to order th e defe ndan t to beg in servin g his se ntenc e as o riginally

entered. Tenn. Code Ann. §§ 40-35-311(d) an d 40-36-10 6(e)(3)(B) and (4);

Sentencing Com mission Com ments to Tenn . Code Ann. § 4 0-35-31 0; State v. Duke,

902 S.W .2d 424 , 427 (T enn. C rim. App . 1995).

Defendant admitted at the hearing that he violated the terms of his probation,

so that wa s sub stantia l eviden ce to s uppo rt the tria l court’s revocation orde r. See,

e.g., State v. Yvonne Bu rnette, C.C.A. N o. 03C 01-960 8-CR -00314 , Knox C ounty

(Tenn. C rim. App., Kno xville, July 25, 1997) (ma ndate issued Apr. 22, 1998 ). The

lower court was statutorily authorized to impose Defendant’s original eight (8) year

sentence upon revocation of probation. See Tenn. Code Ann. § 40-35-310.

Contrary to Defendant’s assertion, we are not required at this stage to reconsider the

sentencing principles . See Burne tte, C.C.A. No. 0 3C01 -9608-C R-003 14; State v.

Stevie Q. Taylor, C.C.A. No. 02C01-9504-CC-00108, Madison County (Tenn. Crim.

-4- App., Jackson, May 1, 1996) (no Rule 11 application filed). We cannot say that the

trial court abused its discretion in o rderin g Def enda nt to se rve the terms of his

original sentence.

Accordingly, the judgment of the trial court is affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge

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