IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMBER 1998 SESSION
February 2, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) No. 03C01-9803-CR-00097
)
Appellee )
) Hamilton County
vs. )
) Honorable Douglas A. Meyer, Judge
LARRY DEWAYNE BROWN, )
) (Revocation of Probation)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
WILLIAM A. DOBSON, JR. CLINTON J. MORGAN
Assistant Public Defender Assistant Attorney General
(At hearing) Criminal Justice Division
425 Fifth Ave. North
DONNA ROBINSON MILLER 2d Floor, Cordell Hull Bldg.
(On appeal) Nashville, TN 37243-0493
Assistant Public Defender
701 Cherry St. Suite 300 WILLIAM H. COX, III
Chattanooga, TN 37402 District Attorney General
C. LELAND DAVIS
Assistant District Attorney General
600 Market St. Suite 310
Chattanooga, TN 37402
OPINION FILED: ____________________
AFFIRMED
JAMES CURWOOD WITT, JR.
JUDGE
OPINION
The defendant, Larry Dewayne Brown, appeals the Hamilton County Criminal
Court’s revocation of his probationary sentence. As a result of the probation
revocation, he is currently serving his sentence of eight years and one month for
three counts of possession of cocaine with the intent to sell or deliver. In this
appeal, the defendant contends that the state presented no substantial evidence
that he had violated the terms of his probation and that the revocation was obtained
in violation of his due process rights. Based upon a thorough reading of the record,
the briefs of the parties, and the law governing the issues presented for review, we
affirm the judgment of the trial court.
We have found it difficult to determine the sequence of events that led
to the revocation of the defendant’s probation. The record contains some serious
gaps and much conflicting information. We have, however, pieced together the
following chronology.
On April 5, 1990, the defendant pleaded guilty to three indictments for
possession of cocaine with the intent to sell or deliver. The trial court sentenced
him to serve concurrent sentences of six years as a Range I offender on two of the
charges and eight years and one month as a Range II offender on the third.
Apparently, the trial court ordered the defendant, who had already served 211 days,
to serve the remainder of his sentence in Community Corrections. 1 After
successfully completing some type of community corrections program and a period
of house arrest, the defendant was placed on probation in July of 1991. A probation
officer testified that the defendant was arrested for shoplifting in 1993. The
defendant vigorously denied this allegation, and the state made no attempt to
substantiate the arrest. On January 6, 1995, a probation violation report was filed
1
The judgment form shows that the defendant was sentenced to
incarceration in the Department of Correction. However, at the sentencing
hearing, all parties agreed that the defendant began serving his sentence in
Community Corrections.
2
alleging that the defendant had tested positive for cocaine in a routine drug test, that
he had failed to report since December 7, 1994, and that he had failed to attend the
After-Care program at CADAS. Although a capias issued shortly thereafter, the
warrant was not served at that time. Documentary evidence introduced without
objection through a probation officer shows that the defendant was arrested on
October 30, 1995 for theft of property worth less than $500 and for possession of
an illegal, dangerous weapon. He pleaded guilty the next day and was sentenced
to serve 30 days on each conviction and to pay a $50.00 fine and court costs. The
sentences were suspended contingent upon payment of the fine and costs and his
good behavior.
On July 9, 1997, the defendant was arrested for “outstanding warrants
in sessions court” in the same two misdemeanor cases and then served with the
outstanding probation revocation capias. Sandra Caldwell, a probation officer,
testified that the defendant pleaded guilty to the two 1995 misdemeanors on July
10, 1997.2
The defendant appeared to be confused about the events that took
place in 1995 and on July 10, 1997. At first he said that he did not remember the
arrests in 1995. Then, after a recess, he recalled the arrests. Finally, in response
to the prosecutor’s insistent questioning, he admitted that he had pleaded guilty on
July 10 but thought that he was only supposed to pay a fine.3
2
To clear up the confusion over the dates, the trial judge sent for the
clerk of the court. She also reported that the convictions were entered on July
10, 1997 and that the defendant was given suspended sentences pending a
partial payment of his fines. It appears from the record that the clerk was never
sworn in as a witness. The defendant did not object to the appearance of the
court clerk or her unsworn testimony. However, we have not considered her
statements as part of the record in this case.
3
The record indicates that counsel was not appointed until July 21,
1997; therefore, it appears that the defendant did not have an attorney present
at whatever transpired on July 10. The state entered two printouts of the general
sessions court docket into evidence at the hearing without objection. These
printouts show that the defendant pleaded guilty to theft and possession of a
dangerous weapon on October 31, 1995. In his brief, defense counsel alleges
that the outstanding general sessions warrants were the result of the defendant’s
failure to pay the fines and court costs from his 1995 convictions. On July 10,
3
The record contains no proof that the defendant committed the
probation violation alleged in the 1995 violation report. The record also contains no
evidence of the applicable conditions of probation.
At the conclusion of the hearing, the trial judge found that the
defendant had violated his probation based upon the defendant’s perhaps
inaccurate acknowledgment that he had been convicted in 1997 for the two 1995
misdemeanors. 4 He then ordered that the defendant serve his sentences as
originally imposed.
On appeal, the defendant contends that the trial court abused its
discretion by revoking his probation when the record contains no substantial
evidence to support the revocation. The defendant also contends that the testimony
of Sandra Caldwell, the probation officer, violated his due process right to confront
the witnesses against him. We respectfully disagree.
The defendant did not assert in the trial court and does not claim in
this court that his due process rights to be notified of the grounds for revocation
were violated. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972).
The revocation of probation is committed to the sound discretion of the
trial judge. See State v. Harkins, 811 S.W.2d 79, 80 (Tenn. Crim. App. 1991). In
order for an abuse of discretion to occur, the reviewing court must find that the
record contains no substantial evidence sufficient to support the conclusion of the
when the defendant made a partial payment on the fine, the court released him
from custody on those convictions but held him on the probation revocation
warrant. We recognize that statements made in a brief are not evidence nor
may they be considered part of the record on appeal. However, we include this
information here because it provides a rational explanation for what otherwise is
a rather puzzling series of events. Whether the defendant pleaded guilty on
October 31, 1995 or on July 10, 1997 makes no difference in the resolution of
the issues in this case.
4
The defendant’s contention that the trial court revoked his
probation because he failed to pay court costs on the 1995 convictions is not
supported by the record.
4
trial judge that the violation of the terms of probation has occurred. Harkins, 811
S.W.2d at 82; State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The
trial court is required only to find that the violation of probation occurred by a
preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1997).
Furthermore, when probation is revoked, “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.” Tenn. Code Ann. § 40-35-310 (1997). The trial judge retains the
discretionary authority to order the defendant to serve the original sentence. See
State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).
In this instance, the defendant contends that the record lacks
substantial evidence to support the trial court’s revocation. Our review of the
record, however, indicates that it contains competent evidence to support the trial
court’s finding that the defendant’s “new” arrest and conviction violated the
conditions of probation. The state placed into the record without any objection from
the defendant printouts from the sessions court docket showing that the defendant
had been convicted of two misdemeanor offenses on October 31, 1995. The
defendant admitted that he pleaded guilty to those offenses although he was
obviously uncertain of the date the judgments were entered. In his brief, the
defendant concedes that the sessions court docket accurately reports his arrest and
conviction for theft and illegal possession of a dangerous weapon in October, 1995.
The thrust of the defendant’s argument is that the trial court mistakenly believed that
although the defendant was arrested in 1995 for those offenses, he had not pleaded
guilty until July 10, 1997. Given the confusing nature of the testimony at the
hearing, the trial court may have thought that the convictions were entered in July
of 1997. The date the judgments were entered, however, is irrelevant. Proof of
convictions for the 1995 offenses is a basis for the revocation of probation.
Even though we have not been asked to do so by the defendant, we
have reviewed the issue of lack of notice of the ground for probation revocation.
5
The defendant was entitled to be informed of the conditions or requirements of his
probation. The record contains no indication of what the full regimen of conditions
were; however, “compliance with our state laws is an automatic condition” of
probation. State v. Subblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997). The
state need not have proven that the defendant was prohibited from offending the
criminal laws as a condition of probation, nor need it have shown that the defendant
was aware of any such condition. The defendant was likewise entitled to be notified
of the charge upon which revocation is based. Morrissey; Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). However, this due process right to notice
“‘calls for such procedural protections as the particular situation demands.’” Stamps,
614 S.W.2d at 73. The very nature of a “notice” right suggests that it may be
waived. In the present case, the defendant did not object to the admission of
evidence about the two new misdemeanor convictions, did not argue in the trial
court that the new convictions were beyond the scope of the probation violation
report and/or revocation warrant, and did not claim in this appeal that he had been
deprived of notice that new convictions would serve as bases for revocation. In this
situation, we have no choice but to conclude that the notice issue was waived.
Tenn. R. App. P. 36(a).
The defendant also argues that the court violated his due process right
to confront the witnesses against him by allowing Sandra Caldwell to testify instead
of the probation officer who had actually been his supervisor.5 The defendant
correctly contends that although a probationer at a revocation hearing is not entitled
to all of the procedural safeguards associated with a criminal trial, the due process
clause of the Fourteenth Amendment to the United States Constitution and article
I, section 8 of the Tennessee Constitution require that a probationer be afforded
certain basic rights including the right to confront the state’s witnesses. Black v.
5
According to Ms. Caldwell’s testimony, Gale Wyatt, the defendant’s
supervising officer, was attending her bridal shower at the time of the hearing.
6
Romano, 471 U.S. 606, 613, 105 S. Ct. 2254, 2258 (1985). 6 We are satisfied that
the defendant was not denied this constitutional right.
First, the defendant had ample opportunity to object to Ms. Caldwell’s
testimony when she explained that she had never supervised the defendant. The
record contains no objection to her testimony, and defense counsel declined to
cross-examine her. As noted above, the trial court admitted the computer record
of the defendant’s 1995 convictions without any objection. The defendant did not
lack the opportunity to challenge either the documentary evidence or to attack the
basis of Ms. Caldwell’s knowledge. Moreover, it is clear that the trial court did not
rely upon the allegations in the probation officer’s file or the January, 1995 probation
violation report. The trial court had before it the uncontroverted record of the
General Sessions Court in which the defendant was convicted and sentenced and
the defendant’s admission that he had pleaded guilty to two misdemeanors after he
was placed on probation. Based on that evidence, the trial judge properly
concluded that the defendant “did violate probation by a new arrest and convictions.
. . .” The defendant’s admission alone is substantial evidence sufficient to support
the trial court’s order. State v. Regina Ann Owen, No. 03C01-9707-CC-00271, slip
op. at 3 (Tenn. Crim. App., Knoxville, June 22, 1998). We are unable to see how
Ms. Caldwell’s rather limited testimony violated the defendant’s right to due process.
In addition, the defendant complains that the trial court should have
continued the hearing until the officer who supervised the defendant was available
and argues that the computer printouts are not competent evidence. However, the
record contains no request for a continuance, and, as noted above, the defendant
failed to object to the admission of the printouts. This court need not grant relief to
6
Those rights include: (a) written notice of the alleged violation; (b)
the disclosure of evidence that supports the alleged violation; (c) the opportunity
to be heard in person and to present evidence in support of his defense; (d) the
right to confront the state’s witnesses; (e) a neutral and detached trier of facts to
hear the evidence; and (f) written findings of fact as to the reason for revocation.
Gagnon v. Scarpelli, 411 U.S. 776, 786, 93 S. Ct. 1756, 1761-62 (1993); State v.
Wade, 863 S.W.2d 406, 408 (Tenn. 1993).
7
a party who failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of an error. Tenn. R. App. P. 36(a).
This court has stated that “a revocation decision is best tested by
whether such an action would serve the ends of justice and be in the best interest
of both the public and the defendant/appellant.” State v. Mitchell, 810 S.W.2d 733,
736 (Tenn. Crim. App. 1991). The record demonstrates that once the more
restrictive provisions of community corrections and house arrest were removed, this
defendant was either unwilling or unable to abide by the conditions of his release
into the community. This court will reverse an order of revocation only if the record
contains no substantial evidence to support the trial court’s finding. State v. Gabel,
914 S.W.2d 562, 564 (Tenn. Crim. App. 1995). In this case the record is not as
complete as it should be. The judgments of the defendant’s convictions as they
appear in the record reflect TDOC sentences, and the technical record contained
no documentation to show when or how such sentences were converted first to
Community Corrections sentences and then to probated sentences. The conditions
of probation were not proven. An unsworn witness was allowed to give evidence.
The true technical nature of the convictions which ultimately served as the bases
for revocation was never clarified. Greater care should be taken to build, preserve,
and transmit to this court a full and accurate record of the proceedings in the lower
court. Nevertheless, the record contains evidence that supports the trial court’s
finding and his order revoking the defendant’s probation. That decision is clearly
in the best interests of the both the public and the defendant himself.
We affirm the judgment of the trial court.
______________________________
JAMES CURWOOD WITT JR., Judge
CONCUR:
______________________________
DAVID G. HAYES, Judge
8
______________________________
JERRY L. SMITH, Judge
9
State v. Larry Brown
Combined Opinion