State of Tennessee v. Connie R. Martin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 2, 2011

STATE OF TENNESSEE v. CONNIE R. MARTIN

Direct Appeal from the Circuit Court for Gibson County

Nos. 15868, 15951 Clayburn Peeples, Judge

No. W2011-00409-CCA-R3-CD - Filed November 21, 2011

Defendant-Appellant, Connie R. Martin, appeals from the Gibson County Circuit Court’s

order revoking her probation. She was originally convicted of two counts of solicitation of

first degree murder, aggravated burglary, forgery, and misdemeanor theft. She received an

effective twenty-year sentence, part of which was to be served on probation. In this appeal,

Martin claims that the trial court erred in revoking her probation. Upon review, we affirm

the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and

R OBERT W. W EDEMEYER, JJ., joined.

Tom W. Crider (at trial and appeal), District Public Defender, Trenton, Tennessee; Clifford

K. McGown, Jr. (on appeal), Waverly, Tennessee, for the Defendant-Appellant, Connie

Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Garry G. Brown, District Attorney General; and Stephanie Hale, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. In August 2010, Martin was serving her sentences in these two cases

on unsupervised probation. At that time, she pled nolo contendere in Madison County

Circuit Court to the promotion of methamphetamine manufacture, a Class D felony. Based

on this new conviction, the State filed a motion to revoke her probation in cases 15868 and

15951, the solicitation to commit murder convictions. At the revocation hearing, the State

presented a certified copy of the judgment form reflecting Martin’s conviction for the

promotion of methamphetamine manufacture. Linda Jones of the Madison County

Community Corrections Office testified that she began supervising Martin in September

2010. She testified that Martin had been compliant with her conditions of probation, with

the exception of the methamphetamine conviction. She contacted the District Attorney

General in Gibson County when she became aware that Martin was serving a suspended

sentence at the time Martin pled to the offense in Madison County.

Martin testified regarding the facts underlying her conviction for the promotion of

methamphetamine manufacture. She said that she bought two boxes of allergy pills, but that

she had never used or made methamphetamine. When she pled guilty, she was under the

impression that the Madison and Gibson County authorities had agreed that her new

conviction would not violate her probation. She testified that she would not have pled guilty

to the offense had she known her probation would be violated.

Following the evidentiary hearing, the trial court found that Martin violated the

conditions of probation. It revoked her probation in cases 15868 and 15951 and ordered her

to serve the balance of her sentences in confinement. This timely appeal followed.

Analysis. Martin argues on appeal that the trial court erred in revoking her probation

because the result, serving the remainder of the sentences in confinement, is unjust.

Although she never explicitly says so before this court, she appears primarily to challenge

the knowing and voluntary nature of the plea that led to the revocation. She implicitly asserts

that because she did not understand that pleading to the offense of promotion of

methamphetamine would risk the revocation of her probation, revocation is “a grave

miscarriage of justice.” The State responds that any challenge to the validity of the guilty

plea is improper on this procedural posture and that the trial court properly revoked Martin’s

probation. We agree with the State.

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 defendant has violated a condition

of his or her probation. T.C.A. §§ 40-35-310, -311(e) (2009). Probation revocation rests

within the sound discretion of the trial court. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn.

Crim. App. 2005) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991)).

A trial court’s decision to revoke probation will be upheld absent an abuse of discretion.

State v. Beard, 189 S.W.3d 730, 735 (Tenn. Crim. App. 2005). In order to establish an abuse

of discretion, the defendant must show that there is no substantial evidence in the record to

support the trial court’s determination regarding the probation violation. Id.

Once the trial court has determined a violation of probation has occurred, it retains

discretionary authority to order the defendant to: (1) serve his sentence in incarceration; (2)

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serve the probationary term, beginning anew; or (3) serve a probationary period that is

extended for up to an additional two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999).

Additionally, under Tennessee Code Annotated section 40-35-310(b), the trial court

may also resentence the defendant for the remainder of the unexpired term to

any community-based alternative to incarceration authorized by chapter 36 of

this title; provided, that the violation of the defendant’s suspension of sentence

is a technical one and does not involve the commission of a new offense.

T.C.A. § 40-35-310(b). The determination of the proper consequence of the probation

violation embodies a separate exercise of discretion. Hunter, 1 S.W.3d at 647; State v.

Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).

In this case, the trial court did not abuse its discretion in finding that Martin violated

the conditions of probation. The State presented a certified copy of the judgment form

reflecting Martin’s conviction and plea of nolo contendere to the new offense. Additionally,

Martin admitted to the facts underlying the conviction, that she purchased pills containing

ingredients used to make methamphetamine. The record therefore reflects substantial

evidence to support the trial court’s finding that Martin violated the conditions of her

probation by committing a new offense. Furthermore, the trial court did not abuse its

discretion by ordering Martin to serve the sentences in custody, as incarceration was clearly

one of the options available to the trial court upon finding that a violation occurred, Hunter,

1 S.W.3d at 647. Having found that the trial court did not abuse its discretion in revoking

Martin’s probation and ordering her to serve the sentences in custody, we conclude that

Martin is not entitled to relief.

To the extent that Martin argues that the trial court erred in revoking her probation

because the plea to the new offense was invalid, we note, as does the State in its brief, that

such an argument is improper here. A challenge to the guilty plea would be proper in, for

example, a petition for post-conviction relief. See State v. Wilson, 31 S.W.3d 189, 194

(Tenn. 2000) (“[T]he proper forum for asserting that a plea was not knowingly or voluntarily

entered . . . is in a post-conviction proceeding.”). We decline, therefore, to review the

validity of the plea entered in Madison County Circuit Court in this direct appeal from the

Gibson County Circuit Court’s revocation of probation.

CONCLUSION

Upon review, we affirm the judgment of the trial court.

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CAMILLE R. McMULLEN, JUDGE

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