IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1997 September 30, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604-CC-00134 Appellate Court Clerk ) Appellee, ) ) ) RUTHERFORD COUNTY VS. ) ) HON. JAMES K. CLAYTON, JR. RICHARD MCADAMS, ) JUDGE ) Appellant. ) (Direct Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY R. DOTSON, JR. JOHN KNOX WALKUP 102 South Maple Street Attorney General and Reporter Murfreesboro, TN 37130 LISA A. NAYLOR Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
BILL WHITESELL District Attorney General
JOHN W. PRICE, III Assistant District Attorney 303 Rutherford County Judicial Bldg. Murfreesboro, TN 37130
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
Appellant Richard McAdams entered a plea of guilty in the Rutherford County
Circuit Court to one count of possession of marijuana for resale. As a Range I standard
offender, the Appellant received a sentence of one year and six months of incarceration
with the Tennessee Department of Correction, all of which was suspended with the
exception of 35 days to be served in the Rutherford County Workhouse. Appellant also
received a fine of $2,000. While in the workhouse Appellant was placed on work
release status. On April 18, 1995, a probation revocation warrant issued for Appellant.
Appellant allegedly violated workhouse rules in that he endeavored to bring contraband
into the workhouse upon returning to that facility from work. Following a probation
revocation hearing, Appellant was removed from work release and ordered to serve 45
days of straight incarceration at the Rutherford County Jail beginning January 8, 1996,
and to serve the remainder of his sentence on supervised probation. In this direct
appeal, Appellant contends that there was insufficient evidence to support the trial
court's ruling revoking Appellant's probation.
After a review of the record, we affirm the judgment of the trial court.
I. FACTUAL BACKGROUND
The proof shows that on March 4, 1994 officers of the LaVergne Police
Department arrested Appellant for possession of marijuana for resale. During a search
of Appellant's vehicle, the police recovered a plastic bottle containing Xanax and a set
of triple beam scales.
On September 6, 1994, a Rutherford County Grand Jury indicted Appellant for
possession of a Schedule VI controlled substance (marijuana) with intent to sell or
deliver in violation of Tennessee Code Annotated Section 39-17-417. Appellant was
also indicted for possession of a Schedule IV controlled substance in violation of
-2- Tennessee Code Annotated Section 39-17-417. Finally, Appellant was indicted for
possession of drug paraphernalia in violation of Tennessee Code Annotated 49-17-425.
On February 28, 1995, Appellant pleaded guilty to the reduced charge of possession
of a Schedule VI controlled substance with intent to sell or deliver. The second and
third counts of the indictment were dismissed. As part of a plea agreement dated
February 28, 1995, Appellant received a sentence of 35 days in the Rutherford County
Workhouse and a suspended sentence of one year and six months. Appellant was
further ordered to pay a fine of $2,000. Following a hearing on Appellant’s alleged
violation of workhouse rules, the Rutherford County Circuit Court revoked Appellant's
suspended sentence and ordered Appellant to serve 45 days in the county workhouse
and to serve the remainder of the sentence on supervised probation.1
II. REVOCATION OF PROBATION: SUFFICIENCY OF THE EVIDENCE
Tennessee Code Annotated Section 40-35-310 authorizes the trial judge to
revoke a defendant's suspended sentence whenever that judge determines that the
defendant has violated the conditions of his probation. Evidence of a probation
violation need not be demonstrated beyond a reasonable doubt. Rather, it is sufficient
to prove the existence of a violation by a preponderance of the evidence. Tenn. Code
Ann. § 40-35-311(d) (1990); State v. Wall, 909 S.W.2d 8, 9 (Tenn. Crim. App. 1994).
Moreover, all that the evidence need show is that the trial judge acted conscientiously,
rather than arbitrarily, in determining whether or not to revoke the defendant's
probation. Wall, 909 S.W.2d at 10; Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim.
1 The original order issued by the Rutherford County Circuit Court filed on February 28, 1995 states that App ellant is sente nce d to serve 35 days in the Ruthe rford County W ork hou se. How ever, the court iss ued an am ended order dated March 31, 1995 which sta tes that Ap pellant is sen tenc ed to 40 days in the co unty work hou se. In the brief for the Sta te of T enn ess ee, the Sta te refers to the March 31 order sentencing Appellant to 40 days but notes that Appellant utilizes the March 31 order sentencing Appellant to 45 days. Finally, following his probation revocation hearing, the order issued on November 20, 1995 sentenced Appellant to 45 days in the Ru therford C oun ty W ork House .
-3- App. 1980). On review, the conclusions of the trial judge in a probation revocation
proceeding are accorded the weight of a jury verdict. Wall, 909 S.W.2d at 10; Stamps,
614 S.W.2d at 73 (citing Carver v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978)).
This Court employs an abuse of discretion standard when reviewing the decision of a
trial court revoking probation or a suspended sentence. State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991) (citing State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App.
1981)). "For this Court to find an abuse of discretion by the trial court in a probation
revocation case, a defendant must demonstrate `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.'" Wall, 909 S.W.2d at 10 (quoting State v. Delp, 614 S.W.2d
395, 398 (Tenn. Crim. App. 1980)).
The record is replete with testimony and discussion regarding several instances
where Appellant allegedly returned to the Rutherford County Workhouse in an
intoxicated condition. However, because the probation violation warrant does not
allege a violation of probation based on alleged intoxication, this Court cannot condone
the trial court's decision to revoke Appellant's probation insofar as that decision is
premised on evidence of Appellant's alleged intoxication. See Practy v. State, 525
S.W.2d 677, 680, 682 (Tenn. Crim. App. 1974).
In Practy, this Court enunciated the constitutionally-mandated procedural due
process standards as applied to a probation revocation proceeding. Id. at 679-80
(citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and
Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972)). The Practy
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1997 September 30, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604-CC-00134 Appellate Court Clerk ) Appellee, ) ) ) RUTHERFORD COUNTY VS. ) ) HON. JAMES K. CLAYTON, JR. RICHARD MCADAMS, ) JUDGE ) Appellant. ) (Direct Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
GUY R. DOTSON, JR. JOHN KNOX WALKUP 102 South Maple Street Attorney General and Reporter Murfreesboro, TN 37130 LISA A. NAYLOR Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
BILL WHITESELL District Attorney General
JOHN W. PRICE, III Assistant District Attorney 303 Rutherford County Judicial Bldg. Murfreesboro, TN 37130
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
Appellant Richard McAdams entered a plea of guilty in the Rutherford County
Circuit Court to one count of possession of marijuana for resale. As a Range I standard
offender, the Appellant received a sentence of one year and six months of incarceration
with the Tennessee Department of Correction, all of which was suspended with the
exception of 35 days to be served in the Rutherford County Workhouse. Appellant also
received a fine of $2,000. While in the workhouse Appellant was placed on work
release status. On April 18, 1995, a probation revocation warrant issued for Appellant.
Appellant allegedly violated workhouse rules in that he endeavored to bring contraband
into the workhouse upon returning to that facility from work. Following a probation
revocation hearing, Appellant was removed from work release and ordered to serve 45
days of straight incarceration at the Rutherford County Jail beginning January 8, 1996,
and to serve the remainder of his sentence on supervised probation. In this direct
appeal, Appellant contends that there was insufficient evidence to support the trial
court's ruling revoking Appellant's probation.
After a review of the record, we affirm the judgment of the trial court.
I. FACTUAL BACKGROUND
The proof shows that on March 4, 1994 officers of the LaVergne Police
Department arrested Appellant for possession of marijuana for resale. During a search
of Appellant's vehicle, the police recovered a plastic bottle containing Xanax and a set
of triple beam scales.
On September 6, 1994, a Rutherford County Grand Jury indicted Appellant for
possession of a Schedule VI controlled substance (marijuana) with intent to sell or
deliver in violation of Tennessee Code Annotated Section 39-17-417. Appellant was
also indicted for possession of a Schedule IV controlled substance in violation of
-2- Tennessee Code Annotated Section 39-17-417. Finally, Appellant was indicted for
possession of drug paraphernalia in violation of Tennessee Code Annotated 49-17-425.
On February 28, 1995, Appellant pleaded guilty to the reduced charge of possession
of a Schedule VI controlled substance with intent to sell or deliver. The second and
third counts of the indictment were dismissed. As part of a plea agreement dated
February 28, 1995, Appellant received a sentence of 35 days in the Rutherford County
Workhouse and a suspended sentence of one year and six months. Appellant was
further ordered to pay a fine of $2,000. Following a hearing on Appellant’s alleged
violation of workhouse rules, the Rutherford County Circuit Court revoked Appellant's
suspended sentence and ordered Appellant to serve 45 days in the county workhouse
and to serve the remainder of the sentence on supervised probation.1
II. REVOCATION OF PROBATION: SUFFICIENCY OF THE EVIDENCE
Tennessee Code Annotated Section 40-35-310 authorizes the trial judge to
revoke a defendant's suspended sentence whenever that judge determines that the
defendant has violated the conditions of his probation. Evidence of a probation
violation need not be demonstrated beyond a reasonable doubt. Rather, it is sufficient
to prove the existence of a violation by a preponderance of the evidence. Tenn. Code
Ann. § 40-35-311(d) (1990); State v. Wall, 909 S.W.2d 8, 9 (Tenn. Crim. App. 1994).
Moreover, all that the evidence need show is that the trial judge acted conscientiously,
rather than arbitrarily, in determining whether or not to revoke the defendant's
probation. Wall, 909 S.W.2d at 10; Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim.
1 The original order issued by the Rutherford County Circuit Court filed on February 28, 1995 states that App ellant is sente nce d to serve 35 days in the Ruthe rford County W ork hou se. How ever, the court iss ued an am ended order dated March 31, 1995 which sta tes that Ap pellant is sen tenc ed to 40 days in the co unty work hou se. In the brief for the Sta te of T enn ess ee, the Sta te refers to the March 31 order sentencing Appellant to 40 days but notes that Appellant utilizes the March 31 order sentencing Appellant to 45 days. Finally, following his probation revocation hearing, the order issued on November 20, 1995 sentenced Appellant to 45 days in the Ru therford C oun ty W ork House .
-3- App. 1980). On review, the conclusions of the trial judge in a probation revocation
proceeding are accorded the weight of a jury verdict. Wall, 909 S.W.2d at 10; Stamps,
614 S.W.2d at 73 (citing Carver v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978)).
This Court employs an abuse of discretion standard when reviewing the decision of a
trial court revoking probation or a suspended sentence. State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991) (citing State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App.
1981)). "For this Court to find an abuse of discretion by the trial court in a probation
revocation case, a defendant must demonstrate `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.'" Wall, 909 S.W.2d at 10 (quoting State v. Delp, 614 S.W.2d
395, 398 (Tenn. Crim. App. 1980)).
The record is replete with testimony and discussion regarding several instances
where Appellant allegedly returned to the Rutherford County Workhouse in an
intoxicated condition. However, because the probation violation warrant does not
allege a violation of probation based on alleged intoxication, this Court cannot condone
the trial court's decision to revoke Appellant's probation insofar as that decision is
premised on evidence of Appellant's alleged intoxication. See Practy v. State, 525
S.W.2d 677, 680, 682 (Tenn. Crim. App. 1974).
In Practy, this Court enunciated the constitutionally-mandated procedural due
process standards as applied to a probation revocation proceeding. Id. at 679-80
(citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and
Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972)). The Practy
-4- Court then enumerated the "`minimum requirements of due process'" as first set forth
by the United States Supreme Court in Morrissey:
`(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (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 upon and reasons for revoking [probation or] parole.'
Id. at 680 (quoting Morrissey, 92 S.Ct. 2604)
Since the probation violation warrant fails to give notice that alleged intoxication
is a basis upon which probation revocation is sought, due process prohibits the use of
evidence of intoxication as a basis for revocation.2
In the probation revocation warrant, Appellant did receive adequate notice of his
alleged violation of workhouse rules in the attempt to bring contraband into the facility.
The trial court found that on at least two occasions, Appellant endeavored to bring
contraband (cigarettes) into the Rutherford County Workhouse. The record amply
buttresses this conclusion. On March 22, 1995, Appellant entered the workhouse while
smoking a cigarette. Additionally, on that same date, Appellant surrendered a pack of
cigarettes to the officers searching him upon his return to the workhouse. Id. On
March 31, Appellant again attempted to bring three packs of cigarettes into the
workhouse by concealing them in his socks and shirt. We, therefore, affirm the
2 This arrest warrant further avers that Appellant has violated the terms of his probation by failing to p ay his fine on A pril 1, 1995. T his refers to a $2 ,000 fine which the trial co urt ord ered to be paid by Appellant in two installments of $1,000 each and which were due on April 1 and May 1, 199 5. Ultim ately, Appellant paid the $2 ,000 fine on M ay 26 o f that sam e year.
-5- judgment of the trial court revoking Appellant's suspended sentence with respect to
Appellant's violation of the workhouse rules prohibiting the bringing of cigarettes into
the facility.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ DAVID H. WELLES, JUDGE
___________________________________ JOE G. RILEY, JUDGE
-6-