State v. Owens

Decision Date01 July 2022
Docket NumberE2021-00814-CCA-R3-CD
PartiesSTATE OF TENNESSEE v. ROBERT DANIEL OWENS, JR.
CourtTennessee Court of Criminal Appeals

Assigned on Briefs May 25, 2022.

Appeal from the Criminal Court for Hamilton County Nos. 302355 302438 Thomas C. Greenholtz, Judge.

The Defendant, Robert Daniel Owens, Jr., pleaded guilty to one count each of aggravated burglary, domestic assault, assault and aggravated stalking, and he received an effective sentence of four years on supervised probation after service of eleven months, twenty-nine days in confinement, followed by a consecutive sentence of two years on unsupervised probation. A revocation warrant was issued, and following a hearing, the trial court found that the Defendant violated the conditions of his probation, revoked his probation, and ordered him to serve his sentences in confinement. On appeal the Defendant contends that the trial court abused its discretion by ordering him to serve his sentences in confinement. Following our review, we affirm the judgment of the trial court.

Mitchell A. Raines (on appeal), Assistant Public Defender - Appellate Division; Ardena J. Garth, District Public Defender; and Jay Perry (at hearing), Assistant Public Defender, for the appellant, Robert Daniel Owens, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Neal Pinkston, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT H. MONTGOMERY, JR., and JILL BARTEE AYERS, JJ., joined.

OPINION

JOHN EVERETT WILLIAMS, PRESIDING JUDGE.

FACTUAL AND PROCEDURAL HISTORY

On December 5, 2017, the Defendant pleaded guilty to aggravated burglary, domestic assault, assault, and aggravated stalking. He agreed to serve concurrent sentences of eleven months twenty-nine days for domestic assault, eleven months, twenty-nine days for assault, and four years on probation for aggravated burglary after first serving eleven months, twenty-nine days in confinement. He also agreed to serve two years on unsupervised probation for aggravated stalking consecutive to his four-year probationary sentence for aggravated burglary. He received pretrial jail credits for time served and was released to probation following entry of the judgments.

The Defendant's probation was revoked in full in March 2019 based on his arrest for possession of methamphetamine and failure to report that arrest to probation, his absconding from probation, and his failure to pay restitution. The court ordered the original sentences into execution. In May 2019, the court granted the Defendant's motion to reduce his sentence and reinstated him to probation with a condition requiring him to complete treatment at the House of Refuge. Based on the Defendant's absconding and his failure to complete treatment at the House of Refuge, the court later partially revoked the Defendant's probation, extended the Defendant's probation for two years, and again required him to complete treatment at the House of Refuge.

On February 23, 2021, a warrant was issued and the probation violation report underlying the present revocation was filed, alleging that the Defendant was arrested on February 8, 2021, for possession of methamphetamine and possession of drug paraphernalia and that he failed to report the arrest to probation. The report also alleged that the House of Refuge manager reported that the Defendant was dismissed from the program on July 13, 2020, because of a "conflict with [the] program" and that the manager knew the Defendant moved to another house but could not provide the address. The last telephone number on file for the Defendant was disconnected, and a "CLEAR report" obtained by the Defendant's probation officer reflected an address in Ringgold, Georgia. The Defendant's probation officer contacted the House of Refuge again in November 2020, but the Defendant had not returned, and the program did not know the Defendant's whereabouts. The Defendant was considered to have absconded from probation. The report also alleged that the Defendant failed to complete the program as a condition of probation.

At the revocation hearing, Officer Teddy Dyer with the City of East Ridge Police Department testified that on February 8, 2021, around 3:00 a.m. he was on patrol and observed the Defendant running away from Easy Auto Sales. Officer Dyer initiated an interaction with the Defendant to inquire into his behavior. The Defendant informed Officer Dyer that his car broke down and that "he was looking for a buddy's house to help him get his car fixed." Officer Dyer found the Defendant's behavior suspicious because the Defendant "was heading back to where his car was and yet he was saying he was looking for his friend to get some car parts." During the interaction, the Defendant gave Officer Dyer consent to search his person, and Officer Dyer found a syringe in the Defendant's back pocket and a "small baggie" in his front pocket containing about 0.6 grams of a substance the Defendant admitted was methamphetamine. Officer Dyer arrested the Defendant. On cross-examination, Officer Dyer testified that the Defendant indicated that he was having car trouble and that Officer Dyer attempted to locate the Defendant's car to verify his story. Officer Dyer visited an apartment complex, observed the vehicle described to him by the Defendant, and returned to the Defendant to talk with him again. During the second interaction, Officer Dyer requested consent to search and found the methamphetamine and the syringe on the Defendant's person.

The Defendant's probation officer, Ms. Angelina Carr, testified that a first probation violation warrant was filed in August 2018 because the Defendant was arrested and charged with possession of a controlled substance and because he absconded from probation. After the Defendant was reinstated to probation, he was being treated at the House of Refuge but left the program in 2019. Another probation violation warrant was filed. The Defendant was eventually reinstated to probation in April 2020, and he returned to treatment at the House of Refuge. She stated that she received the Defendant's case in April 2020 and that there was no in-person reporting at that time due to COVID-19. On May 27, 2020, another probation official conducted a field visit with the Defendant at the House of Refuge.

On cross-examination, Ms. Carr testified that her contact with the Defendant consisted primarily of telephone calls except for the home visit. She spoke to the Defendant in May 2020 to discuss the case plan goals via telephone, and she scheduled him for a mental health evaluation via telephone. She stated that on June 8, 2020, the House of Refuge manager reported that the Defendant tested positive for drugs on May 17 and that "there was corrective action" taken. She stated that a risk and needs assessment was conducted on May 29 via telephone. The Defendant was placed on minimum supervision, which entailed reporting to probation every six months. After Ms. Carr's contact with him in May 2020, the Defendant's next report date was November 2020. She stated that no particular method of reporting was set at that time because "when COVID hit everybody kind of scrambled around to try and contact people by phone and let them know that we would continue doing everything by phone." She was certain that she discussed with the Defendant that he should not leave the House of Refuge and that he should contact her to update his address or telephone number. At some point, she learned that on July 16, 2020, the Defendant was dismissed from the House of Refuge, but the only reason given for dismissal was "conflict with [the] program."

Ms. Carr stated that she tried to contact the Defendant using various methods. She tried to call the Defendant's telephone number listed in his file, but that number was disconnected. On cross-examination, she stated that "everything I had was disconnected except for his boss who I spoke to and he was not working with him at that time." She stated that minimum supervision offenders would call her desk telephone and that the voicemail on her desk telephone listed her cell phone number. She stated that because she was "mostly working from home," offenders would call her desk telephone, and if she could not be reached, they would call her cell phone. She stated that she had her desk telephone forwarded to her cell phone. She agreed that it would have been typical for her to return missed telephone calls. She ran a CLEAR report, which listed an address in Ringgold, Georgia, but she stated that the probation office does "not investigate anything outside of Tennessee." She again called the House of Refuge in November 2020, but the Defendant had not returned to the program. On cross-examination, she said that on December 26, 2020, she tried to call the telephone numbers listed in the Defendant's file but that they were disconnected. She obtained another CLEAR report, which still listed an address in Ringgold, Georgia.

Ms Carr stated that she considered the Defendant to have absconded because his whereabouts were unknown and that she did not have any contact with the Defendant between July 2020 and February 2021. She agreed that she would have made a note in her file if the Defendant had called her during that time. She filed a probation violation report in February 2021. When asked if the Defendant ever contacted her to inquire about transferring his probation to Georgia, she responded, "I really can't recall much of that conversation." She stated that "it would not have been approved because he was court ordered to complete...

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