The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 26, 2011
STATE OF TENNESSEE v. MARCELL JERMAINE MARBURY
Appeal from the Criminal Court for Hamilton County
No. 257771 Rebecca J. Stern, Judge
No. E2011-01035-CCA-R3-CD - Filed February 28, 2012
In September 2006, the Defendant, Marcell Jermaine Marbury, pled guilty to voluntary
manslaughter. He was sentenced as a Range I, standard offender to six years and was placed
on probation. Subsequently, the Defendant was transferred to enhanced probation. In
February 2011, a violation report was filed, the fourth against the Defendant, citing violations
of an arrest for a new offense, failure to report, and possession of illegal drugs. Following
a hearing, the trial court revoked the Defendant’s sentence of probation and ordered that he
serve the remainder of his six-year sentence in the Department of Correction (“DOC”). On
appeal, the Defendant challenges the trial court’s imposition of total incarceration. After a
review of the record, we conclude that the trial court did not abuse its discretion and affirm
the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
N ORMA M CG EE O GLE, JJ., joined.
Ardena J. Garth, District Public Defender; Richard Kenneth Mabee (on appeal) and Blake
F. Murchison (at hearing), Assistant Public Defenders, Chattanooga, Tennessee, for the
appellant, Marcell Jermaine Marbury.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
William H. Cox, III, District Attorney General; and William H. Hall, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On September 6, 2006, the Defendant pled guilty to voluntary manslaughter, a Class
C felony. See Tenn. Code Ann. § 39-13-211. He received a six-year sentence as a Range
I, standard offender and was placed on probation.
The first violation warrant against the Defendant was issued on July 30, 2007, alleging
that the Defendant had violated the rules of his probation by being arrested for misdemeanor
theft and by failing two drug screens. On November 26, 2007, the trial court dismissed the
revocation petition, placed the Defendant on intensive probation, and extended the
probationary term for one year.
On July 9, 2008, the Defendant was again alleged to have violated the conditions of
his probation by admitting to using marijuana on two occasions, failing two drug screens,
missing curfew twice, and failing to complete a drug treatment program as instructed. The
Defendant was arrested on July 29, 2008. In October 2008, the Defendant was referred to
the “CADAS program” for a drug assessment. Thereafter, on November 10, 2008, the
Defendant conceded the probation violation, and the trial court revoked the Defendant’s
probation. The Defendant was released on that same day and returned to intensive probation,
where he was to complete 10 days of public service work within six months of his release.
A third violation warrant was issued on May 12, 2009, alleging that the Defendant had
failed to perform the court-ordered public service work. On February 8, 2010, the trial court
revoked the Defendant’s probationary sentence but released him, ordering once again that
he be returned to intensive probation, with an extension of his probationary term for an
additional year.
The Defendant was arrested on the present violation warrant on February 18, 2011.
The violation report was based upon allegations (1) that the Defendant failed to report for his
office visits in January and February 2011; (2) that the Defendant obtained new charges by
being arrested on February 9, 2011, for possession of marijuana for resale; and (3) that he
possessed marijuana on February 9, 2011. A hearing on the warrant was held on April 25,
2011.
Richard Irvin with the Board of Probation and Parole testified that he was assigned
to supervise the Defendant in September 2006. Mr. Irvin briefly recapped the Defendant’s
history while under his supervision. When asked about the Defendant’s behavior since the
last revocation, Mr. Irvin stated that the Defendant had “continued in the same behavior[,]”
missing curfews and office visits, admitting to marijuana usage, and failing drug screens.
According to Mr. Irvin, the Defendant tested positive for marijuana in August 2010.
Thereafter, Mr. Irvin placed the Defendant in an in-house drug treatment program run by a
forensic social worker. The Defendant did not complete the program. At one point, Mr.
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Irvin asked the Defendant to move from his residence on Sholar Avenue “because of
domestic issues.” The Defendant complied at first, moving in with his father, but he still
admitted to using drugs during that time period. Mr. Irvin relayed that the Defendant left his
father’s residence and moved in “with a young lady[.]” His arrest for possession of
marijuana for resale followed.
Mr. Irvin testified that, just before the revocation hearing began, he had been informed
by the assistant district attorney general that the Defendant had pled guilty to the marijuana
possession charge. Mr. Irvin also stated that the Defendant’s office visits were “scheduled
for every two weeks[,]” that the Defendant had missed his January 20, 2011 appointment,
and that he had not seen the Defendant following his arrest on February 9, 2011.
When asked if he had sought drug treatment for the Defendant, Mr. Irvin testified that
the Defendant was placed in intensive outpatient treatment with CADAS at one time, but he
was expelled from the program when he continued to use drugs. The Defendant was also
kicked out of an in-house Board of Probation and Parole program conducted by a forensic
social worker for continuing to use drugs. Mr. Irvin opined that he could not envision “any
other program for [the Defendant].” Mr. Irvin further provided, “And it’s constantly been
the same problem, a drug problem that he just refused to stop using.” On cross-examination,
Mr. Irvin testified that the Defendant had never been arrested for “any violent offense” and
that “[e]verything” appeared “to be drug related[.]”
The Defendant’s mother, Elizabeth Marbury Thornton, testified that the Defendant
had resided with her intermittently during his probationary period. According to Ms.
Thornton, the Defendant was “all right” as long as he was living with her, “but when he
started living with the other girl he just started doing things that he wasn’t supposed to do.”
Ms. Thornton averred that the Defendant could live with her if he was reinstated to
probation. She stated that she needed the Defendant’s help at home because she had cancer
and the Defendant’s father had congestive heart failure. She also hoped the Defendant would
be allowed a chance to help care for his four-week-old daughter.
On cross-examination, Ms. Thornton acknowledged that this was not the Defendant’s
first probation violation. She acquiesced that the Defendant would not be able to assist her
by driving because he had been declared a habitual traffic offender.
Leanna Lee testified that she was the mother of the Defendant’s child and resided with
the Defendant’s mother. She stated that raising her daughter on her own was “[v]ery hard”
and asked the court to return the Defendant to probation so he could help her with the baby’s
care.
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The Defendant testified, acknowledging that he had a drug problem and that he knew
he needed quit. When asked how things would be different this time if he was returned to
probation, he could not offer any reassurances to the court. The Defendant testified that, if
reinstated to probation, he would not “have any issues” living with his mother. He said that
he was “just asking for another chance.”
At the conclusion of the hearing, the trial court found that the Defendant violated the
conditions of his probation, revoked his probationary sentence, and ordered him to serve the
remainder of his six-year sentence in the DOC. This appeal followed.
ANALYSIS
On appeal, the Defendant contends that the trial court abused its discretion by
imposing the original sentence instead of ordering “some other remedy other that [sic] full
service of the sentence in the TDOC.” The Defendant avers that the trial court failed to give
weight to “the facts that [the Defendant] had not been arrested for any violent crime, he was
willing to live with his mother, and his presence was needed to help with his mother, father
and newborn child.” The State contends that the trial court properly revoked probation and
ordered the Defendant to serve his sentence in confinement. We agree with the State.
A trial court may revoke a sentence of probation upon finding by a preponderance of
the evidence that the defendant has violated the conditions of release. Tenn. Code Ann. §
40-35-311(e). The decision to revoke probation is in the sound discretion of the trial judge.
State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991). The judgment of the trial court to revoke
probation will be upheld on appeal unless there has been an abuse of discretion. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). To find an abuse of discretion in a probation
revocation 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.” Id. (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614
S.W.2d 395, 398 (Tenn. Crim. App. 1980)); see also State v. Farrar, 355 S.W.3d 582, 586
(Tenn. Crim. App. 2011). Such a finding “‘reflects that the trial court’s logic and reasoning
was improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
A trial court is not required to find that a violation of probation occurred beyond a
reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). The
evidence need only show that the court has exercised conscientious judgment in making the
decision and has not acted arbitrarily. Id. In reviewing the trial court’s finding, it is our
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obligation to examine the record and determine whether the trial court has exercised a
conscientious judgment rather than an arbitrary one. Mitchell, 810 S.W.2d at 735.
The Defendant does not challenge the grounds supporting revocation. At the hearing,
the Defendant’s probation officer testified that, after being given yet another chance on
probation, the Defendant continued to use drugs. Ultimately, the Defendant was arrested on
February 9, 2011, for possession of marijuana for resale. At the time of his arrest, the
Defendant had marijuana in his possession, another violation of the conditions of his
probation. According to Mr. Irvin, the Defendant also failed to report for his scheduled
appointments in January and February 2011. Moreover, Mr. Irvin stated the Defendant had
twice been placed in a drug treatment program, failing to complete the program both times.
When asked about possible alternatives for the Defendant if reinstated to probation, Mr. Irvin
stated that he could not envision “any other program for [the Defendant].” Regardless of this
evidence, the Defendant asks this court to reverse the trial court’s imposition of confinement
and grant him “some other remedy[.]”
There is ample proof in the record of the Defendant’s repeated violations. It is clear
that the Defendant violated the terms of his probation this time by committing a new offense,
failing to report to his probation officer, and possessing illegal drugs. The Defendant has
previously been found to be in violation of the terms of his probation, and the trial court
allowed him to remain on probation instead of requiring confinement. Despite this largess,
the Defendant continued to violate the terms of his probation. He has been given multiple
chances. This court has repeatedly held that “an accused, already on probation, is not entitled
to a second grant of probation or another form of alternative sentencing.” State v. Jeffrey A.
Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10,
1999), perm. app. denied, (Tenn. June 28, 1999); see also State v. Timothy A. Johnson, No.
M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim. App. Feb. 11, 2002). The
trial court acted within its discretionary authority to revoke the Defendant’s probation and
impose his original six-year sentence. See Tenn. Code Ann. §§ 40-35-310, -311(e).
CONCLUSION
In sum, we conclude that the trial court did not abuse its discretion by ordering the
Defendant to serve the remainder of his six-year sentence in confinement. Accordingly, the
judgment of the trial court is affirmed.
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D. KELLY THOMAS, JR., JUDGE
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