State of Tennessee v. Adrian Ann Crain

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 3, 2010 Session

STATE OF TENNESSEE v. ADRIAN ANN CRAIN

Direct Appeal from the Circuit Court for Madison County

No. 01-868 Donald Allen, Judge

No. W2010-00274-CCA-R3-CD - Filed February 17, 2011

The defendant, Adrian Ann Crain, appeals the revocation of her probation sentence, claiming

that the state denied her right to a speedy trial and that the trial court did not have jurisdiction

when it revoked her sentence and ordered that she serve the remainder of her sentence in the

Tennessee Department of Correction. Following our review, we affirm the judgment of the

trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R. and

J OHN E VERETT W ILLIAMS, JJ., joined.

Wendell L. Hoskins, II, Dyersburg, Tennessee, for the appellant, Adrian Ann Crain.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Background

According to the available record, on November 5, 2001, a Madison County grand

jury indicted the defendant, Adrian Ann Crain, for conspiracy to manufacture

methamphetamine, a Class C felony; possession of methamphetamine with the intent to

deliver, a Class E felony; and possession of diazepam and marijuana, Class A misdemeanors.

The defendant pleaded guilty as charged on August 12, 2002, and, on August 20, 2002, the

trial court sentenced the defendant to an effective five-year sentence with her serving 120

days in the county jail and the remainder on supervised probation. The trial court permitted

the defendant to serve her probation, which would expire on August 12, 2007, in her home

state of Missouri.

On December 23, 2003, the defendant’s probation officer filed a probation violation

report which alleged that, on November 12, 2003, the defendant tested positive for

methamphetamine, amphetamine, and cocaine. The defendant’s probation officer agreed

with the Missouri probation officer’s recommendation that the court should continue the

probation violation, and he submitted the violation only for the court’s information.

On February 28, 2004, Missouri authorities arrested the defendant for possession of

equipment and chemicals with intent to manufacture methamphetamine and filed a charge

against her in state court. The Missouri state court later dismissed the charge in favor of

prosecution in federal court. The defendant pleaded guilty to the federal charge, and the

court sentenced her to serve eight years in federal prison.

Based on the defendant’s arrest and conviction in Missouri, the Madison County

Criminal Court issued a probation violation warrant on April 1, 2004. On June 6, 2005, the

Madison County Sheriff’s Office filed a detainer removal request with the Missouri

Department of Corrections asking that they forward the defendant to the custody of the

United States Marshals. The defendant filed a motion for disposition of probation warrant

and detainer on December 7, 2009, which was the day of the probation revocation hearing.

At the probation revocation hearing, the defendant admitted the probation violation. The trial

court revoked her probation in a written order filed December 29, 2009, and the defendant

filed a motion to arrest judgment on January 27, 2010. The defendant now appeals the trial

court’s revocation of her probation.

Analysis

On appeal, the defendant argues that the state violated her right to a speedy trial and

that the trial court did not have jurisdiction when it revoked her probation. The defendant

asserts that the state violated her right to a speedy trial because her probation revocation

hearing occurred sixty-eight months after the court issued the probation violation warrant

although “the State knew exactly where [she] was at all times in the years that elapsed

between initiation of the proceedings and the eventual hearing.” She also claims that the trial

court did not have jurisdiction to revoke her probation because the term of her original

sentence had expired prior to the court’s revoking her probation. The state replies that the

defendant has raised the issue of violation of her right to a speedy trial for the first time on

appeal and, thus has waived it. The state further responds that, if this court does not deem

the issue waived, the delay in this case is attributable to the defendant, and it did not violate

the defendant’s right to a speedy trial.

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We agree with the state that the defendant has waived the issue of denial of her right

to a speedy trial. If the defendant had a viable speedy trial contention, she should have

argued it before her probation revocation hearing, and in the event of an adverse ruling,

preserved the issue for argument on appeal. She did not do this. Thus, she has waived her

speedy trial issue. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). “Failure to present

an issue to the trial court . . . will typically not merit appellate relief.” Tenn. R. App. P. 3(e),

Advisory Commission Comments. Generally, an appellate court will not allow a party to

raise an issue for the first time on appeal because such action denies the adversary

opportunity to rebut the issue with evidence and argument. See Walsh v. State, 166 S.W.3d

641, 645 (Tenn. 2005) (“Issues not addressed in the post-conviction court will generally not

be addressed on appeal.”); State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994)

(“[A] party will not be permitted to assert an issue for the first time in the appellate court.”).

Furthermore, a petitioner may not change theories between the lower court and the appellate

court. State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001). The petitioner failed

to present this claim before the trial court, which was a court of competent jurisdiction.

Accordingly, we conclude that the petitioner has waived this issue.

For her second argument, the defendant contends that the trial court did not have

jurisdiction over her case when it revoked her probation sentence. According to the

defendant, her original sentence “was set to run until August 12, 2007. Thus, the trial court

lost jurisdiction on that date, and the Order Revoking Probation entered on December 29,

2009, is without legal effect.” The defendant posits that “an un-served [sic] warrant does not

represent sufficient progress in the judicial system to halt the elapse of her statutory

sentencing period.”

Tennessee Code Annotated section 40-35-311(a) authorizes a trial court to order the

issuance of a “warrant for the arrest” of defendants who are alleged to have violated the

terms of their suspended sentences. “If the probation revocation warrant is issued within the

term of the sentence, the issuance of the warrant commences the revocation proceedings.”

State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (citing McGuire v. State, 292 S.W.2d 190,

193 (Tenn. 1956)). The court’s issuance of the revocation warrant tolls the running of the

suspended sentence until the trial court can conduct a hearing to determine the issues raised

in the warrant. Shaffer, 45 S.W.3d at 555 (citing Allen v. State, 505 S.W.2d 715, 717

(Tenn.1974)).

Here, the court issued the probation revocation warrant on April 1, 2004, which was

within the term of the defendant’s sentence. The court’s issuance of the warrant tolled the

running of the defendant’s sentence, and thus, the sentence had not run when the trial court

revoked the defendant’s probation sentence. We conclude that the trial court did have

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jurisdiction to revoke the defendant’s probation. The issue is without merit, and the

defendant is not entitled to relief.

Conclusion

Based on the foregoing, we affirm the trial court’s revocation of the defendant’s

probation sentence.

___________________________________

J.C. McLIN, JUDGE

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