State of Tennessee v. Vincent Byron Rose

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 28, 2010

STATE OF TENNESSEE v. VINCENT BYRON ROSE

Appeal from the Criminal Court for Sullivan County

No. S52,950 R. Jerry Beck, Judge

No. E2009-02396-CCA-R3-CD - Filed June 10, 2010

The defendant, Vincent Byron Rose, appeals from the trial court’s order revoking his

probation and ordering that he serve his sentence in confinement. Discerning no error in the

judgment of the trial court, we affirm.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.

T IPTON, P.J., and J.C. M CL IN, J., joined.

Terry Jordan, Assistant District Public Defender, for the appellant, Vincent Byron Rose.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; H. Greeley Wells, Jr., District Attorney General; and Tara Trent, Assistant District

Attorney General Pro Tempore, for the appellee, State of Tennessee.

OPINION

On November 10, 2008, the defendant pleaded guilty in the Sullivan County

Criminal Court to assault and reckless endangerment in exchange for an effective sentence

of 11 months and 29 days to be served on probation. On April 29, 2009, a probation

violation warrant issued alleging that the defendant had violated the terms of his probation

by using alcohol, as established by his being charged with driving under the influence, and

by failing to complete court-ordered community service. On June 25, 2009, a second

probation violation warrant issued alleging that the defendant had violated the terms of his

probation by committing an assault and by failing to complete community service.

At the probation revocation hearing, the State presented certified copies of the

defendant’s conviction judgments for assault and driving under the influence garnered after

he was placed on probation. In addition to these certified copies being placed into evidence,

defense counsel noted that the defendant was guilty of those offenses.

Tennessee Board of Probation and Parole Officer Tim Trantham testified that

he had supervised the defendant’s probation since November 10, 2008, and that the

defendant had violated the terms of his probation by being charged with driving under the

influence and aggravated assault and by failing to complete any of the 120 hours of

community service ordered by the court. Mr. Trantham testified that the defendant was

employed at “the Robinette Company.”

Mr. Trantham admitted during cross-examination that the defendant had

presented “medical information” regarding his inability to perform the community service

work but that he had not done so until October 20, 2009, well after the probation violation

warrants had been filed.

The defendant testified that he lived in Bluff City with his mother, wife,

daughter, and son. He stated that he received his driving under the influence conviction after

he was stopped for speeding while he “was test driving a vehicle.” He said that he entered

an Alford guilty plea to assaulting his 17-year-old son as a lesser included offense of

aggravated assault in the general sessions court.1 The defendant claimed that his son had also

pleaded guilty to assaulting him and that he intended to file a petition for post-conviction

relief in that case.

The defendant testified that he was the sole provider for his mother, wife,

daughter, and son, and that he would “lose [his] house for sure” if incarcerated. He said that

he needed surgery on his back and that both his wife and daughter needed surgery, too. The

defendant stated that medical insurance provided by his employer would cover the cost of the

surgeries but that he would lose his job if incarcerated for an extended period of time.

Regarding his failure to perform community service, the defendant claimed that

he had provided his 2007 medical records to Mr. Trantham. He described his medical

problems, “Well, of course, I’ve got bad knees. But I’ve got a – a disease that affects my

spinal cord. I’m supposed to have the C5 disc removed and a donor bone, you know, put

back in it’s place; and the . . . 3, 4, 5, 6, and 7 fused back together.” The defendant testified

that he “was under the assumption that . . . that part would be waived as far as . . . the

1

In North Carolina v. Alford, 400 U.S. 25, 37 (1970), the United States Supreme Court held that a

criminal defendant may enter a guilty plea without admitting guilt if the defendant intelligently concludes

that his best interests would be served by a plea of guilty.

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community service.” He claimed that Mr. Trantham “never brought up” the issue of his

performing community service during his monthly meetings and that “it just popped up after

[he] got this DUI.”

The defendant asked the court to “give him a chance” and stated that he did not

want his family “to have to suffer for . . . another mistake that [he] made.” He emphasized

that he would lose his job if incarcerated and that he would lose his home if he lost his job.

He asked the court to allow him to serve some incarceration on the weekends so that he could

maintain his employment.

During cross-examination, the defendant said that he did not know that driving

after taking Lortab would be driving under the influence. As to the assault of his son, the

defendant said, “[H]e assaulted me first.” The defendant admitted that even with his medical

problems he maintained full-time employment as a maintenance mechanic at the Robinette

Company.

The defendant’s wife, Ann Yvonne Rose, testified that she and the defendant

lived with their son and daughter and the defendant’s mother. She said that the defendant’s

income is the only financial support for the family. She stated that should the defendant lose

his job, they would lose their home and that their daughter would not be able to attend

college. She stated she did not know where she and the children would go because they had

no family in Tennessee and she was “not allowed to leave the state of Tennessee.” She said

that the defendant’s mother “draws Social Security” but does not help with the household

expenses.

At the conclusion of the hearing, the trial court ruled that the defendant violated

the terms and conditions of his probation by being convicted of driving under the influence

and assault. The court concluded that the State had failed to establish that the defendant had

violated his probation by failing to complete community service. The court ruled that the

defendant would be required to serve his 11-month and 29-day sentence in confinement.

We consider the defendant’s claims with a few well-settled principles in mind.

Upon a finding by a preponderance of the evidence that the defendant has violated the

conditions of probation, the trial court may revoke the defendant’s probation and “cause the

defendant to commence the execution of the judgment as originally entered, or otherwise in

accordance with § 40-35-310.” T.C.A. § 40-35-311(e) (2006); see also Stamps v. State, 614

S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the original judgment so

rendered by the trial judge shall be in full force and effect from the date of the revocation of

such suspension.” Id. § 40-35-310. The revoking court may extend the period of probation

supervision for a period not to exceed two years. Id. § 40-35-308(c).

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The decision to revoke probation rests within the sound discretion of the trial

court, and this court will not disturb the trial court’s ruling in the absence of a showing that

the trial court abused that discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001)

(citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). “In order for a reviewing court

to be warranted in finding 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.” Harkins, 811 S.W.2d

at 82 (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)).

In this case, the defendant admitted that he violated the terms of his probation

by driving while intoxicated and assaulting his 17-year-old son. On appeal, he again

concedes that he violated his probation but argues that the trial court erred by ordering that

he serve his sentence in confinement. The defendant essentially asks this court to reverse the

imposition of a fully incarcerative sentence on the basis of the hardships that incarceration

will pose on the defendant’s family. Although we comprehend the defendant’s plight, we

are without authority to reverse the judgment of the trial court in light of the defendant’s

clear violations of his probationary terms. In consequence, we affirm the judgment of the

trial court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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