IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
APRIL 1998 SESSION FILED May 29, 1998
Cecil W. Crowson Appellate Court Clerk STA TE O F TEN NES SEE , ) APPELLEE ) ) VS. ) C.C.A. NO. 01C01-9708-CR-00361 ) SUMNER COUNTY ) Honorable Jan e Wheatcraft WALTER LEE ELLISON, JR. ) APPELLANT ) (PROBATION REVOCATION)
FOR THE APPELLANT FOR THE APPELLEE
Dana L. Scott John Knox Walkup Assistant Public Defender Attorney General and Reporter 18th Judicial District 450 James Robertson Parkway 117 East Main St. Nashville, TN 37243 Gallatin, TN 37066 Clinton J. Morgan Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
Thomas Dean Assistant District Attorney General 113 East Main St. Gallatin, TN 37066
OPINION FILED: _______________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE OPINION
The defendant, Walter Lee Ellison, Jr., appeals as of right from a ruling of the
Sumner Criminal Court that revoked his probation. On June 20, 1996, upon a plea of
guilty, the same Court sentenced the defendant in cause no. 9602, Count One, to two
(2) years in the Tennessee Department of Correction for Burglary of a Building in and
in Count Two, to two (2) years for Theft of Property over $1,000 to run concurrently.
The defendant was placed on two years supervised probation after serving four (4)
months in the Sumner County jail. The defendant complains that the trial court failed
to exercise a conscientious and intelligent judgment in finding by a preponderance of
the evid ence th at the de fendan t violated the term s and co ndition s of pro bation. W e
find the revo cation of pro bation justified and affirm the Court’s judgme nt.
The standard by which we review a probation revocation case is abuse of
discretio n.
“In order for a reviewing court to be warranted in finding an abuse of discretion in a probation revocation hearing, it must be established th at the record contains no substantial ev idence to support the conclusion of the trial judge that a violation of the conditions of probation has occurred.” State v. Harkins, 811 S.W.2 d 79, 82 (Tenn . 1991) .
We note that the trial court was entitled to revoke probation upon finding by the
prepond erance of th e evidenc e that the defe ndant viola ted several c onditions o f his
probation. Tenn. C ode Ann. §4 0-35-311(d).
The record establishes that the trial court, on October 1, 1996, issued an arrest
warrant for the defendant for a violation of probation. The warrant alleges (1) the
defendant was charged with theft over $10,000, from the ABC Caulking Company on
August 13, 1996, (2) Defendant failed to report to the State Probation Office since
being granted prob ation on 6-2-96, (3) D efendant has failed to pay any of the Cou rt
ordered restitution and (4) Defendant left the State of Tennessee without the
permission, consent or authorization of the State Probation Office.
2 The State ’s evidence consisted o f the testimo ny of M r. Marvin P owell, State
Probation Officer. Mr. Powell, assigned supervising officer for the defendant, never
met with the defendant to discuss the conditions of probation. Apparently the
defendant upon release from the Sumner County Jail on June 20, 1996, entered the
Buffalo Valley Treatment Center on June 21, 1996. On June 20, 1996, a probation
officer, Carson Bumbalough, talked to the defendant and had him complete a plea
sheet and d epartme nt questionn aire for perso nal inform ation. At this sta ge, it is
routine for probation officers to advised defendants upon release from jail, to report or
contact the probation office before the end of the week. The plea sheet and
questionnaire have the same cautionary instructions. Since the defendant did not
report upon release from Buffalo Valley, Mr. Powell sent a letter, dated August 24,
1996, to the defe ndant’ s addre ss in Ch attanoo ga, Ten nessee . There was n o respo nse.
Since the defendant failed to report, Mr. Powell was unable to determine if the
defendant made restitution payments to ABC Caulking Company as required in the
judgment order. Mr. Powell testified that an arrest warrant had been issued for the
defendant on September 5, 1996, alleging the theft of a Chevrolet truck owned by
ABC Caulking Comp any on A ugust 13, 1 996. The defendan t was arreste d in
Colorado in this truck, and was extradited to Tennessee.
The defendant’s proof reveals that the defendant entered the Buffalo Valley
Treatment Center on June 21, 1996. Mr. Rusty Graham, defendant’s counselor, was
aware the defendan t was on p robation, altho ugh the de fendant did not know his
assigned o fficer. Mr. G raham, v ia phone c alls, determin ed that M r. Marvin P owell
was the d efendant’s assigned o fficer. Graha m advise d the defen dant and g ave him
Powell’s phone number and permission to contact M r. Powell. This occurred b efore
the defend ant’s discha rge from the center an d return to h is mother’s home in
Chattanooga. Mr. Paul Swafford, counselor, testified the defendant was concerned
about who his assigned probation officer was and to his knowledge the defendant
attempted to contact his pro bation officer.
3 The defendant testified that he did not know who to pay restitution to, so he
attempted to contact his attorney, Nancy Myers, but she was unavailable. As to why
the defendant did not contact Mr. Powell upon his discharge from the center, the
defendan t returned to h is mother’s home in Chattano oga, due to some p roblems o f his
son. While at the center and his home, the defendant attempted on three or four
occasions to contact M r. Powell, bu t he was n ever in. Th e defenda nt testified he d id
not kno w he c ould no t leave th e State, s ince he was n ot a resid ent of S umne r Coun ty.
The defendant admitted going to Georgia, Colorado, Wyoming, and Knoxville,
Tennessee. The evidence is overwhelming the defendant knew he was on supervised
probation.
The trial court had found the defendant violated his period of probation in a
numbe r of ways , more spe cifically, he left the state of Ten nessee, kn owing h is
probation officer’s name yet failing to contact him; and the defendant’s reasons or
excuse s were not the le ast bit cre dible. T hus, the defend ant’s pro bation w as revo ked.
The defendant contends that the new indictment and arrest for the theft of a truck
belonging to ABC Caulking Comp any, is a m ere accusa tion and ca nnot be us ed to
revoke his probation. The defendant is correct. In State v. Harkins, 811 S.W.2d 79,
83 (Tenn. 1991), our supreme court held:
A mere accusation, standing alone, is not sufficient to justify the revocation of a community corrections sentence. To the contrary, when, as here, the grounds for revocation ... is the commission of a new offense, the State is required to establish sufficient facts ... to permit the trial judge to m ake a con scientious an d intelligent jud gment a s to wheth er the co nduct in questio n violate d the law .
The requirements for revoking placement in a community corrections program
involv ing "m ere acc usation s" are th e sam e in con sideratio ns of rev oking p robatio n.
The State, in order to rely on arrests as a violation to revoke probation, must produce
evidence in the usual form of testimony to establish probable cause a probationer has
comm itted another o ffense.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
APRIL 1998 SESSION FILED May 29, 1998
Cecil W. Crowson Appellate Court Clerk STA TE O F TEN NES SEE , ) APPELLEE ) ) VS. ) C.C.A. NO. 01C01-9708-CR-00361 ) SUMNER COUNTY ) Honorable Jan e Wheatcraft WALTER LEE ELLISON, JR. ) APPELLANT ) (PROBATION REVOCATION)
FOR THE APPELLANT FOR THE APPELLEE
Dana L. Scott John Knox Walkup Assistant Public Defender Attorney General and Reporter 18th Judicial District 450 James Robertson Parkway 117 East Main St. Nashville, TN 37243 Gallatin, TN 37066 Clinton J. Morgan Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
Thomas Dean Assistant District Attorney General 113 East Main St. Gallatin, TN 37066
OPINION FILED: _______________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE OPINION
The defendant, Walter Lee Ellison, Jr., appeals as of right from a ruling of the
Sumner Criminal Court that revoked his probation. On June 20, 1996, upon a plea of
guilty, the same Court sentenced the defendant in cause no. 9602, Count One, to two
(2) years in the Tennessee Department of Correction for Burglary of a Building in and
in Count Two, to two (2) years for Theft of Property over $1,000 to run concurrently.
The defendant was placed on two years supervised probation after serving four (4)
months in the Sumner County jail. The defendant complains that the trial court failed
to exercise a conscientious and intelligent judgment in finding by a preponderance of
the evid ence th at the de fendan t violated the term s and co ndition s of pro bation. W e
find the revo cation of pro bation justified and affirm the Court’s judgme nt.
The standard by which we review a probation revocation case is abuse of
discretio n.
“In order for a reviewing court to be warranted in finding an abuse of discretion in a probation revocation hearing, it must be established th at the record contains no substantial ev idence to support the conclusion of the trial judge that a violation of the conditions of probation has occurred.” State v. Harkins, 811 S.W.2 d 79, 82 (Tenn . 1991) .
We note that the trial court was entitled to revoke probation upon finding by the
prepond erance of th e evidenc e that the defe ndant viola ted several c onditions o f his
probation. Tenn. C ode Ann. §4 0-35-311(d).
The record establishes that the trial court, on October 1, 1996, issued an arrest
warrant for the defendant for a violation of probation. The warrant alleges (1) the
defendant was charged with theft over $10,000, from the ABC Caulking Company on
August 13, 1996, (2) Defendant failed to report to the State Probation Office since
being granted prob ation on 6-2-96, (3) D efendant has failed to pay any of the Cou rt
ordered restitution and (4) Defendant left the State of Tennessee without the
permission, consent or authorization of the State Probation Office.
2 The State ’s evidence consisted o f the testimo ny of M r. Marvin P owell, State
Probation Officer. Mr. Powell, assigned supervising officer for the defendant, never
met with the defendant to discuss the conditions of probation. Apparently the
defendant upon release from the Sumner County Jail on June 20, 1996, entered the
Buffalo Valley Treatment Center on June 21, 1996. On June 20, 1996, a probation
officer, Carson Bumbalough, talked to the defendant and had him complete a plea
sheet and d epartme nt questionn aire for perso nal inform ation. At this sta ge, it is
routine for probation officers to advised defendants upon release from jail, to report or
contact the probation office before the end of the week. The plea sheet and
questionnaire have the same cautionary instructions. Since the defendant did not
report upon release from Buffalo Valley, Mr. Powell sent a letter, dated August 24,
1996, to the defe ndant’ s addre ss in Ch attanoo ga, Ten nessee . There was n o respo nse.
Since the defendant failed to report, Mr. Powell was unable to determine if the
defendant made restitution payments to ABC Caulking Company as required in the
judgment order. Mr. Powell testified that an arrest warrant had been issued for the
defendant on September 5, 1996, alleging the theft of a Chevrolet truck owned by
ABC Caulking Comp any on A ugust 13, 1 996. The defendan t was arreste d in
Colorado in this truck, and was extradited to Tennessee.
The defendant’s proof reveals that the defendant entered the Buffalo Valley
Treatment Center on June 21, 1996. Mr. Rusty Graham, defendant’s counselor, was
aware the defendan t was on p robation, altho ugh the de fendant did not know his
assigned o fficer. Mr. G raham, v ia phone c alls, determin ed that M r. Marvin P owell
was the d efendant’s assigned o fficer. Graha m advise d the defen dant and g ave him
Powell’s phone number and permission to contact M r. Powell. This occurred b efore
the defend ant’s discha rge from the center an d return to h is mother’s home in
Chattanooga. Mr. Paul Swafford, counselor, testified the defendant was concerned
about who his assigned probation officer was and to his knowledge the defendant
attempted to contact his pro bation officer.
3 The defendant testified that he did not know who to pay restitution to, so he
attempted to contact his attorney, Nancy Myers, but she was unavailable. As to why
the defendant did not contact Mr. Powell upon his discharge from the center, the
defendan t returned to h is mother’s home in Chattano oga, due to some p roblems o f his
son. While at the center and his home, the defendant attempted on three or four
occasions to contact M r. Powell, bu t he was n ever in. Th e defenda nt testified he d id
not kno w he c ould no t leave th e State, s ince he was n ot a resid ent of S umne r Coun ty.
The defendant admitted going to Georgia, Colorado, Wyoming, and Knoxville,
Tennessee. The evidence is overwhelming the defendant knew he was on supervised
probation.
The trial court had found the defendant violated his period of probation in a
numbe r of ways , more spe cifically, he left the state of Ten nessee, kn owing h is
probation officer’s name yet failing to contact him; and the defendant’s reasons or
excuse s were not the le ast bit cre dible. T hus, the defend ant’s pro bation w as revo ked.
The defendant contends that the new indictment and arrest for the theft of a truck
belonging to ABC Caulking Comp any, is a m ere accusa tion and ca nnot be us ed to
revoke his probation. The defendant is correct. In State v. Harkins, 811 S.W.2d 79,
83 (Tenn. 1991), our supreme court held:
A mere accusation, standing alone, is not sufficient to justify the revocation of a community corrections sentence. To the contrary, when, as here, the grounds for revocation ... is the commission of a new offense, the State is required to establish sufficient facts ... to permit the trial judge to m ake a con scientious an d intelligent jud gment a s to wheth er the co nduct in questio n violate d the law .
The requirements for revoking placement in a community corrections program
involv ing "m ere acc usation s" are th e sam e in con sideratio ns of rev oking p robatio n.
The State, in order to rely on arrests as a violation to revoke probation, must produce
evidence in the usual form of testimony to establish probable cause a probationer has
comm itted another o ffense. Ho wever, this in troduction o f the arrest w arrant in this
4 cause would support not only a mere accusation, but would support the violation of
the defendant leaving the State. We believe, in the facts o f this case, the trial court
could p roperly consid er this ev idence .
The defendant contends he should not be revoked on the ground of non-
reporting sin ce he m ade attem pts to find ou t the name of his super vising officer , while
at the Buffalo Valley Treatment Center. Thus, he was not aware of the specific rules
of probation. The trial court found the defendant’s testimony regarding non-reporting
not to b e the lea st bit cred ible. Th e facts c learly su pport th e trial cou rt’s conc lusion.
State v. S mith, 909 S.W.2d 471 (TCC A 1995).
5 As to the grounds of non-payment of restitution and leaving the State, the
defendant argues that he was unsuccessful in contacting Mr. Powell and thus was not
made fu lly aware o f the rules and procedu res of proba tion. The trial c ourt found this
explanation not worthy of belief. The defendant’s testimony establishes that the
defendant has quite a history of criminal behavior and it is reasonable to infer that the
defendant would be aware of ordinary rules of probation.
In sum, we co nclude that the record on appeal clearly justifies the trial court’s
finding that the defendant violated conditions of probation of which he was aware and
its conclusion that revoca tion was in order. The judgme nt of the trial cou rt is
affirmed.
___________________________________ L. T. Lafferty, Special Judge
CONCUR:
_______________________________ Gary R. Wade, Judge
_______________________________ Thomas T. Woodall, Judge