State of Tennessee v. Opal Gause

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 6, 2002

STATE OF TENNESSEE v. OPAL GAUSE

Direct Appeal from the Circuit Court for Haywood County
Nos. 4504 and 4560 Clayburn L. Peeples, Judge

No. W2002-01225-CCA-R3-CD - Filed November 14, 2002

Defendant, Opal Gause, entered a guilty plea to two counts of aggravated assault. The trial court
sentenced Defendant to two consecutive three-year terms, for an effective sentence of six years. The
sentences were suspended, and Defendant was placed on probation for the length of his original
sentences. A violation warrant was subsequently issued alleging Defendant had failed to meet the
conditions of his probation. Following a hearing, Defendant’s probation was revoked, and he was
ordered to serve his original sentence with credit for time served pre-trial. Defendant now challenges
the revocation of his probation. Following a review of the record, we affirm the decision of the trial
court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, and JOHN
EVERETT WILLIAMS, JJ., joined.

Tom W. Crider, District Public Defender; and Joyce Diane Blount, Assistant Public Defender,
Tenton, Tennessee, for the appellant, Opal Gause.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Larry Hardister, Assistant District Attorney General,
for the appellee, State of Tennessee.

OPINION

I. Background

Three days after Defendant was placed on probation on March 1, 2001, he was arrested for
public intoxication and sentenced to serve ten days. On March 16, 2001, Defendant was arrested
again for harassment, but the charges were subsequently dismissed. In July, Defendant’s probation
officer filed a probation violation report alleging that Defendant was three months in arrears on
payment of his supervisory fees. Two months later, Defendant was arrested for assault, but these
charges were also dismissed.

In September, Defendant’s probation officer received a call from Defendant’s sister
concerning threats he had made to his mother, Hattie Gause. As a result, a board disciplinary
meeting was held with Defendant on September 19. At this time, Defendant was instructed to move
from his mother's house, and enroll in counseling at Pathways for mental health and substance abuse
treatment. Defendant was also ordered to abstain from any further drug or alcohol use, and refrain
from driving without a license. In addition, he was told to catch up on payment of his fees.

On October 10, 2001, Defendant was again arrested, this time for simple assault and public
intoxication, found guilty and sentenced to eleven months, twenty-nine days, all suspended but thirty
days. A second arrest for public intoxication occurred on October 13, 2001, resulting in another
conviction and a thirty day sentence.

A second probation violation report was filed on November 9, 2001 alleging that Defendant
had failed to (1) obey the laws, (2) follow his parole officer's rules of supervision, (3) abstain from
excessive use of intoxicants, and (4) pay supervisory fees, all in direct violation of the terms of his
probation. Based on Defendant’s actions since his probation commenced, probation revocation was
recommended.

At the revocation hearing, Defendant’s probation officer testified that Defendant had not
complied with any of the conditions of his probation other than checking in as required and reporting
his arrests. Between the time Defendant was placed on probation and the filing of the second
probation violation report, he had been arrested five times, and convicted on three of the charges.

Mr. Hughes, Defendant’s counselor at Pathways, testified that he had known Defendant for
approximately fifteen years. During that time, Defendant periodically attended counseling sessions
for a few weeks, then disappeared for extended periods of times, often for years. After a meeting
with Defendant on October 1, Mr. Hughes thought Defendant had a good chance at succeeding in
the treatment program, and that he would benefit from Pathways' intensive outpatient counseling
program. Mr. Hughes testified, however, that Defendant missed his next scheduled meeting because
he was in jail.

Hattie Gause, Defendant’s mother, testified that her son had never assaulted her, and he could
come live with her if his probation were not revoked.

Defendant testified that he inadvertently paid his supervisory fees to the General Sessions
Court instead of the Circuit Court, and did not discover his mistake until the disciplinary meeting.
Defendant also denied that he had an alcohol problem. He claimed that his problems resulted
instead from his bouts with depression and his temper. Defendant testified that he visited the
Lighthouse Ministries in Memphis, Tennessee, to see what treatment programs were offered.
However, the patients at the facility appeared to be mostly drug addicts and alcoholics and he "didn't

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want to be around that." Defendant testified that he next tried to enroll in the rehabilitation program
at Buffalo Valley, but the center would not take him because he was on medication for depression.
Finally, Defendant stated that he returned to his former Pathways counselor, Calvin Hughes.
Defendant said he attended one meeting in October, but missed the next scheduled visit because he
was in jail at the time. Defendant testified that he would attend Pathways' outpatient counseling
program in the future if his probation was not revoked.

Defendant admitted that he had been convicted three times since the commencement of his
probation, but alleged at the hearing that the arrests either had no grounds or only insubstantial
grounds. He did admit he had been drinking on one of the public intoxication charges, but
maintained that he had not been drinking when the other arrest occurred. Defendant also testified
that the police misunderstood the events leading up to his assault conviction. However, he did not
appeal any of his convictions.

At the conclusion of the testimony, the trial court revoked Defendant’s probation and ordered
Defendant to serve his two consecutive sentences in the Tennessee Department of Correction with
credit for time already spent in the county jail.

On appeal, Defendant claims that the trial court abused its discretion and violated his rights
of due process when the trial court (1) revoked Defendant’s probation without considering
alternatives other than incarceration, (2) failed to state the reasons upon which it based its
determination to revoke Defendant’s probation, and (3) failed to allow Defendant’s counsel to make
a statement on his behalf before the trial court issued its ruling.

II. Due Process Claims

Defendant alleges that the trial court abused its discretion and violated Defendant’s due
process rights when the court failed to make specific findings as to the basis for the revocation of
probation, and failed to allow Defendant’s counsel to make a statement on behalf of the Defendant
before ruling on this matter.

A defendant who has been granted a suspended sentence and probation has a liberty interest,
although conditional, that is protected by due process of law. State v. Merriweather, 34 S.W.3d 881,
884 (Tenn. Crim. App. 2000); State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997);
Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974) cert. denied (Tenn. 1975). Therefore,
the termination of the defendant’s probation requires some form of orderly procedure. Id. at 482
citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). While
not afforded the full array of procedural protections attached to a criminal proceeding, a defendant
facing revocation of probation is entitled to the following minimum due process requirements:

(a) written notice of the claimed violations of [probation or] parole;
(b) disclosure to the [probationer or] parolee of evidence against him;

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 (c) opportunity to be heard in person and to present witnesses and documentary
evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation);
(e) a ‘neutral and detached’ hearing body such as a traditional parole board,
members of which need not be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the evidence relied on and reasons
for revoking [probation or] parole.

Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.1756, 1761-1762, 36 L.Ed.2d 656 (1973) citing
Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604.

The hearing process envisioned in Gagnon provides the defendant with notice as to the
violations alleged and the opportunity to present evidence and witnesses on disputed facts and
insures that contested issues are resolved. Morrissey, 408 U.S. at 484, 92 S.Ct. at 2602. The process
also assures the defendant that the trial court has before it sufficient facts upon which to make a
conscientious and informed decision. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

Our state legislature has vested the trial judge with the sole authority to revoke a defendant’s
probation whenever the trial judge learns that a defendant has either (1) been guilty of the breach of
any law or (2) violated the conditions of his probation. Tenn. Code Ann. § 40-35-311(a). Following
a defendant’s arrest for a violation of probation, the trial judge must inquire as to the charges and
determine if a violation has occurred. Tenn. Code Ann. § 40-35-311(b). The defendant must be
present at the inquiry, is entitled to representation by counsel, and may present testimony on his
behalf. Id. If the trial judge determines that a violation has occurred by the preponderance of the
evidence, he may revoke the defendant’s probation and suspension of sentence and order the
defendant to serve the judgment as originally entered. Tenn. Code Ann. § 40-35-311(c). The
defendant has the right to appeal any revocation of probation. Id.

This Court has determined that the statutory procedures for the revocation of probation set
forth in Tenn. Code Ann. § 40-35-311 comply with the minimum due process standards required for
revocation hearings under Gagnon. See Practy, 525 S.W.2d at 682; Merriweather, 34 S.W.3d at
884. As part of this procedural framework, the trial court must issue a statement setting forth the
evidence and factors relied upon in making the determination to revoke probation. State v. Delp, 614
S.W.2d 395, 397 (Tenn. Crim. App. 1980) perm. to appeal denied (Tenn. 1981). Although the trial
court’s findings may be written or oral, a statement in some form must be made. Id.

At the conclusion of Defendant’s revocation hearing in this matter, the following dialog
occurred:

MS. BLOUNT [defense counsel]: That’s all the proof we’re going to present,
Your Honor.

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 THE COURT: Any rebuttal, General?

GENERAL HARDISTER: No, Your Honor.

THE COURT Any comments?

GENERAL HARDISTER: We’ll submit the matter without a statement, Your
Honor.

THE COURT: Mr. Gause, your probation in each case is revoked.

The trial court’s order stated that Defendant’s suspended sentence was revoked “for failure
to abide by their [the State of Tennessee Department of Correction, Division of Probation] rules and
regulations.” Clearly, the transcript of the hearing and the trial court’s order revoking the suspended
sentence gave Defendant only scant notice of the evidence and factors relied upon by the trial judge
in reaching his determination that revocation was proper. Delp, 614 S.W.2d at 397.

The trial court’s written or oral findings are an integral and indispensable part of the hearing
process when the revocation involves disputed facts and contested issues. See Id. However,
Defendant’s revocation was based, at least in part, on convictions by a court of competent
jurisdiction. Although Defendant disputes some of the factors surrounding his arrests, he admits that
he was charged and convicted for offenses committed while he was on probation. A revocation of
probation can be based on only one violation, and, in this case, Defendant has admitted to at least
three violations.

The trial judge has broad discretion in formulating the conditions of the defendant’s
probation, so that the punishment meets both the interests of society and the interests of the
defendant. Tenn. Code Ann. § 40-35-303(9)(d); State v. Burdin, 924 S.W.2d 82, 85 (Tenn. 1996);
Practy, 525 S.W.2d at 681. Therefore, these conditions must be clearly relayed to the defendant in
order that he may have reasonable notice of the prohibited conduct and the opportunity to conform
his actions to the restrictions placed against his liberty. Stubblefield, 953 S.W.2d at 225, citing
United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed.2d 989 (1954).

However, revoking a defendant’s probation based on the commission of criminal offenses
does not implicate the same due process requirements since the defendant, as a matter of law, “is
deemed to have notice that his or her conduct must conform to the requirements of the law” the
moment he or she is placed on probation. Stubblefield, 953 S.W.2d at 225; State v. Stone, 880
S.W.2d 746, 749 (Tenn. Crim. App. 1994). The commission of a crime alone justifies the issuance
of a warrant for Defendant’s arrest for violation of probation. Tenn. Code Ann.§ 40-35-311(a).
When a defendant pleads guilty and is convicted of a crime while on probation, there are no disputed
facts or contested issues that warrant due process protection. Stone, 880 S.W.2d at 749. See
Morrissey, 408 U.S. at 490, 92 S.Ct. at 2605 (“If it is determined that petitioners admitted parole
[probation] violations to the Parole Board, as respondents contend, and if those violations are found

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to be reasonable grounds for revoking parole [probation] under state standards, that would end the
matter.”) Further, the record of a conviction does not depend on an evaluation of the credibility of
witnesses which is best left to the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim.
App. 1991).

Defendant’s convictions constitute an independent basis for revocation of probation. See
Tenn. Code Ann. § 40-35-311(a); State v. Robinson, 2000 WL 546209 (Tenn. Crim. App. 2000).
Therefore, it is unnecessary to address the issues surrounding the other alleged probation violations.
The only question that remains is whether the trial court abused its discretion when it revoked
Defendant’s probation on the basis of his convictions. This court has previously determined that a
crime committed during probation constitutes substantial evidence that a violation of probation has
occurred. State v. Gabel, 914 S.W.2d 562, 564 (Tenn. Crim. App. 1995); see Stone, 880 S.W.2d at
749 (Revocation was warranted even when the offenses were committed prior to the commencement
of the defendant’s probationary period); Delp, 614 S.W.2d at 398 (Revocation may be proper even
when the defendant is later acquitted of the crime). Therefore, we conclude that the trial court did
not abuse its discretion in revoking Defendant’s probation. Stubblefield, 953 S.W.2d at 226; see
Harkins, 811 S.W.2d at 82. We note, however, if the revocation in this matter did not include a
charge that Defendant had breached the laws of this state, we might be compelled to reach a different
result.

Defendant also alleges that the trial court violated his due process rights when his counsel
was not permitted to make a statement on his behalf before the trial court issued its ruling. As a
result, Defendant argues that he was denied the opportunity to ask for intensive probation as an
alternative to incarceration.

The record does not clearly indicate that Defendant’s counsel was prohibited from making
a statement, especially since counsel did not notify the trial court of any desire to argue. The
transcript merely shows that the trial judge asked for statements, the state replied negatively, and
Defendant’s counsel was silent.

A revocation hearing is not a criminal proceeding but rather an informal hearing which does
not include “the full panoply of rights and procedural safeguards.” State v. Wade, 863 S.W.2d 406,
407-408, (Tenn. 1993); State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984); Barker v.
State, 483 S.W.2d 586, 589 (Tenn. Crim. App. 1972), cert. denied (Tenn.1972); Morrissey, 408 U.S.
at 480, 92 S.Ct. at 2600. The procedure under which revocation hearings are conducted is governed
by statute, and, as noted above, the statutory framework fully protects the defendant’s due process
rights. Tenn. Code Ann. § 40-35-311; Practy, 525 S.W.2d at 682. During the revocation hearing,
the defendant has the right to be present, the right to counsel, and the right to present testimony on
his behalf. In this matter, Mr. Hughes, Defendant’s counselor at Pathways, testified that he believed
Defendant would benefit from an intensive outpatient alcohol abuse treatment program. Defendant’s
counsel then asked Defendant if he would be willing to go into this program if he were given another
chance at probation, and Defendant answered affirmatively. Defendant, therefore, had sufficient
opportunity during the hearing process to present evidence that he would be a suitable candidate for

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alternative sentencing should the trial court revoke his probation. Defendant is not entitled to relief
on this issue.

III. Imposition of Sentencing

Defendant alleges that the trial court violated his due process rights when it ordered that the
balance of his sentence be served in the Tennessee Department of Correction without considering
whether Defendant was a suitable candidate for intensive probation. Defendant argued in the trial
court that his participation in Pathway’s outpatient substance abuse treatment program would result
in his successful rehabilitation. Mr. Hughes also testified that he felt Defendant was at last
committed to seeking help for his problem, and that a successful completion of the program would
provide Defendant with the chance to remain sober.

Once a defendant’s probation has been revoked, the trial judge is granted broad discretion
in determining the defendant’s sentence. See Tenn. Code Ann. §§ 40-35-311(e), 40-35-310, and 40-
35-308(c). The trial court may order the defendant’s incarceration, cause execution of the original
judgment, or modify the defendant’s probationary period, including extending the defendant’s
probation for no more than two years. Id.; State v. Hunter, 1 S.W.3d 643 (Tenn. 1999).

Defendant initially pled guilty to two counts of aggravated assault. In the nine months
Defendant was on probation, he was arrested two times for assault, once for harassment and twice
for public intoxication. The harassment charge and one of the assault charges were subsequently
dismissed. Defendant pled guilty to the other charges, and served the sentences imposed by the
court. Both Defendant’s probation officer and his counselor at Pathways testified that Defendant had
a problem with alcohol, and that alcohol was generally the root of his criminal offenses. Defendant,
however, denied that he had an alcohol problem, admitting only that he “might drink a little bit too
much.” Defendant made one effort to inquire about the treatment program at Lighthouse Ministries,
but he decided not to stay since the patients looked like drug and alcohol addicts, and he did not feel
he was in the same category.

Defendant’s counselor testified that he had counseled Defendant for approximately fifteen
years. During that time, Defendant would come in for a few weeks, then disappear, sometimes for
years. The counselor stated that it was his understanding that Defendant primarily came in for
counseling when he was under pressure to do so by some court. The counselor saw Defendant in
October and testified that he saw signs of a sincere desire for rehabilitation in Defendant. Defendant,
however, missed the next scheduled meeting because he was in jail for public intoxication.

Based on a review of the record, it is apparent that Defendant has made little effort to assist
in his rehabilitation. During his probation, Defendant continued to commit the same types of
offenses that led to his initial convictions. He made some minimal effort to seek counseling during
his probation, but over the past fifteen years has shown little progress in dealing with his problems.
In fact, Defendant denied he even had a problem with alcohol abuse despite his counselor’s guidance
and recommendations. The repeated unsuccessful efforts towards rehabilitation indicate that

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Defendant has little potential for success during another probationary period. Defendant urged the
court not to interrupt his efforts at rehabilitation, yet the only indication that Defendant received
counseling during his probation was one meeting in October with Mr. Hughes. Mr. Hughes testified
he was optimistic after this session, but, during the two weeks following the meeting, Defendant was
arrested once for simple assault and public intoxication and once for public intoxication.
Defendant’s actions give little assurance that an intensive probation will meet with any more success.

Given these facts, we cannot say that the trial court abused its discretion in ordering
Defendant to serve his sentence in the Tennessee Department of Correction. Defendant is not
entitled to relief on this issue.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________
THOMAS T. WOODALL, JUDGE

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