State of Tennessee v. Jamie Lee McKinney

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 5, 2009 Session

STATE OF TENNESSEE v. JAMIE LEE McKINNEY

Direct Appeal from the Circuit Court for Henry County

No. 14135 Donald E. Parish, Judge

No. W2008-01719-CCA-R3-CD - Filed January 13, 2010

The Defendant-Appellant, Jamie Lee McKinney, appeals the revocation of his probation.

He pled guilty in the Circuit Court of Henry County to attempt to commit aggravated sexual

battery, a Class C felony. He was sentenced to six years supervised probation after nine

months of confinement. On appeal, he claims: (1) the probation condition prohibiting

marriage to someone with a minor child is unconstitutional; and (2) the trial court abused its

discretion by revoking McKinney’s probation because he left Henry County without his

probation officer’s permission. Upon review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.

W OODALL and J. C. M CLIN, JJ., joined.

Paul D. Hessing, Paris, Tennessee, for the Defendant-Appellant, Jamie Lee McKinney.

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

General; Hansel J. McCadams, District Attorney General; and R. Adam Jowers, Assistant

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

OPINION

Facts. On July 2, 2007, a Henry County grand jury indicted McKinney for the offense

of rape, a Class B felony. On November 13, 2007, McKinney filed a “Request For

Acceptance Of Plea Of Guilty [And] Petition To Waive Trial By Jury And To Waive An

Appeal.” The document provided, inter alia, that McKinney understood that he was charged

with rape and that his sentence upon a plea of guilty, if accepted by the trial court, would be

to criminal attempt aggravated sexual battery. He agreed upon a six year sentence to be

served as nine months incarceration followed by supervised probation. He also agreed to

register as a sex offender, community supervision for life, and no contact with the victim.

On the second page of the document, which was signed by McKinney, he submitted his case

to the trial court to determine punishment. He further expressly and knowingly waived

certain rights; specifically, his right to appeal the decision of the trial court or petition for

post-conviction relief if his guilty plea was accepted by the trial court. The trial court

accepted the terms of McKinney’s guilty plea, and the judgment was entered on November

30, 2007.

Following his release from confinement on May 9, 2008, McKinney signed a

probation order which required him to obtain permission from his probation officer before

leaving his county of residence or the State. It further required McKinney to abide by the

“Specialized Probation Conditions for Sex Offenders as adopted by the Board of Probation

and Parole.” On the same day, McKinney signed a two-page document entitled “Specialized

Probation Conditions for Sex Offenders.” This document outlined twelve additional

conditions that McKinney was required to follow. McKinney further acknowledged that he

had read each condition by placing his initials beside each condition in the document. As

pertinent to this discussion, Special Condition #9 stated:

If convicted of an offense against a minor, I will not date, befriend, reside or

unite with anyone who has children under the age of 18, except my own

children, unless further restricted by applicable law or court order. I will not

enter into contact with any child under 18 or anyone who is unable to give

consent due to mental, physical, or emotional limitations, unless an adult is

present whom my Officer and my treatment provider have approved in

advance, in writing, as a chaperone.

The following language also appeared above McKinney’s signature on the “Specialized

Probation Conditions for Sex Offenders”:

I understand that if I do not agree with any condition, I have the right to

petition the Sentencing Court for a modification. Any release from these

instructions will be provided to me in writing.

On June 12, 2008, a probation violation report was filed alleging that McKinney had

violated Special Condition #9, outlined above, and that he had left his county of residence

without his probation officer’s permission. Consequently, a warrant was issued for

McKinney’s arrest. On July 7, 2008, the trial court held a probation violation hearing.

McKinney stipulated to the allegations within the probation violation report. However,

McKinney offered proof in mitigation of his admitted probation violations.

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Sophia McKinney, the defendant-appellant’s new wife, briefly testified that she

married McKinney on June 2, 2008, in Benton County, Tennessee. She stated that they were

in Benton County no longer than thirty (30) minutes or “long enough to get married.” She

also acknowledged that she had a minor son. She testified that her son did not reside with

her and McKinney.

Jamie Lee McKinney testified that he went to Benton County, a county other than his

county of residence, without his probation officer’s permission because he believed “it was

the state line.” He confirmed, however, that he went to Benton County for the purpose of

getting married. He then acknowledged that he previously asked his probation officer if he

could get married. He admitted that his probation officer advised him not to marry Sophia

McKinney because she had a minor child. In spite of his probation officer’s advice,

McKinney stated that he “married her anyway.” McKinney explained that he resided at the

same residence he listed on his probation paperwork following his release from confinement.

He testified that he currently lived at the same residence he had prior to his marriage to

Sophia. McKinney’s probation officer also testified and corroborated the above testimony.

Following argument of counsel and a lengthy discussion concerning various aspects

of Special Condition #9, the trial court revoked McKinney’s probation. This timely appeal

followed.

I. Probation Revocation. McKinney does not contest that he violated the terms and

conditions of his supervised probation by marrying someone with a minor child and leaving

his county of residence without his probation officer’s permission. Rather, he contends that

Rule 12 of his probation order, which prohibits “resid[ing] or unit[ing] with anyone who has

children under the age of 18, except [his] own children, unless further restricted by applicable

law or court order[,]” as a condition of probation, is unconstitutional. In essence, McKinney

argues that his condition of probation was unlawful, therefore the trial court’s revocation of

probation based on a violation of that condition is improper. The State contends that the trial

court properly revoked McKinney’s probation.

Standard of Review. Under Tennessee law, a trial court may revoke a sentence of

probation upon a finding by a preponderance of the evidence that the defendant has violated

the conditions of his release. T.C.A. § 40-35-310,-311(e) (2006). A trial court’s decision

to revoke probation will be upheld on appeal absent a showing that the trial court abused its

discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order to establish that the

trial court has abused its discretion, the defendant must show that there is no substantial

evidence to support the determination that he violated his probation. Id. (citing State v.

Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim.

App. 1980)). Relief will be granted only when “‘the trial court’s logic and reasoning was

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improper when viewed in light of the factual circumstances and relevant legal principles

involved.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6

S.W.3d 235, 242 (Tenn. 1999)).

As an initial matter, we must address whether McKinney is properly before this court.

His substantive complaint in this appeal is to “the trial court’s original imposition of

Defendant’s sentence containing a probation condition which prohibited Defendant from

marrying anyone who had minor children[.]” However, because McKinney pleaded guilty

to an offense which required community supervision for life, his special conditions of

probation were set by the Tennessee Board of Probation and Parole, not the trial court. See

T.C.A. § 39-13-524(a) (2006). Tennessee Code Annotated section 39-13-524(d)(1) provides:

A person on community supervision shall be under the jurisdiction, supervision and

control of the board of probation and parole in the same manner as a person under

parole supervision. The board is authorized on an individual basis to establish such

conditions of community supervision as are necessary to protect the public from the

person’s committing a new sex offense, as well as promoting the rehabilitation of the

person.

Additionally, in State v. Samuel T. Anderson, No. W2008-00995-CCA-R3-CD, 2009 WL

2407760 (Tenn. Crim. App., at Jackson, Aug. 3, 2009), this court recently reversed a trial

court’s modification of probation conditions imposed pursuant to section 39-13-524. In

answering the question of who has authority and jurisdiction to establish terms and

conditions of a defendant’s lifetime community supervision imposed pursuant to section

39-13-524, Samuel T. Anderson held that section 39-13-524, “vests the authority and

jurisdiction to establish conditions of community supervision solely in the Tennessee Board

of Probation and Parole.” Id. at *2. As such, it was the Tennessee Board of Probation and

Parole’s decision to set special condition #9 after the trial court imposed the original sentence

and conditions of probation and subsequent to McKinney’s release from confinement.

It is well established that judicial review of any state administrative decision must

begin with the Uniform Administrative Procedures Act (UAPA), T.C.A. § 4-5-101-324. See

Floyd Partee v. State, No. 02C01-9311-CC-00267, 1995 WL 381649 (Tenn. Crim. App., at

Jackson, June 28, 1995). Since the UAPA explicitly excludes from the contested case and

judicial review provisions decisions made by and actions taken by the Board of Paroles, see

T.C.A. § 4-5-106(c), the common-law writ of certiorari serves as the proper procedural

vehicle for review of decisions by parole eligibility review boards and other similar

administrative tribunals. Willis v. Tenn. Dep’t of Correction, 113 S.W.3d 706, 712 (Tenn.

2003). Thus, “[t]he only procedure for a prisoner to obtain judicial review of an action or

decision of the Board is by a petition for common-law writ of certiorari.” Hickman v. Tenn.

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Bd. of Paroles, 78 S.W.3d 285, 290, n.4 (Tenn. Ct. App. 2001) (citing Floyd Partee, 1995

WL 381649, at *1). The petition must be filed within sixty days of the final decision of the

reviewing board or commission. Id.

McKinney has not requested this court to exercise its authority to grant a common-law

writ of certiorari in this case. Nor do we believe, based on this record, that the common-law

writ is an appropriate vehicle to address McKinney’s claim. See State v. Lane, 254 S.W.3d

349, 356 (Tenn. 2008) (holding that the common-law writ of certiorari is only appropriate

to correct “(1) fundamentally illegal rulings; (2) proceedings inconsistent with essential legal

requirements; (3) proceedings that effectively deny a party his or her day in court; (4)

decisions beyond the lower tribunal’s authority; and (5) plain and palpable abuses of

discretion” or “[w]here either party has lost a right or interest that may never be recaptured”).

Moreover, we believe that “other plain, speedy, or adequate remed[ies]” are available which

McKinney has not utilized. See T.C.A. § 27-8-101. Thus, McKinney’s appeal of the special

conditions imposed pursuant to Tennessee Code Annotated section 39-13-524, and

authorized by the Tennessee Board of Probation and Parole is dismissed.

In so much as McKinney claims the trial court abused its discretion in revoking his

probation, McKinney admitted to the violations as detailed in the violation report. This court

has previously held that a defendant’s concession of an act constituting a violation of

probation constitutes substantial evidence of the violation, and the trial court’s revocation

based thereon is not abuse of discretion. See State v. Johnson, 15 S.W.3d 515, 518 (Tenn.

Crim. App. 1999); State v. Michael Emler, No. 01C01-9512-CC-00424, 1996 WL 691018,

at *4 (Tenn. Crim. App., at Nashville, Nov. 27, 1996) (where the defendant admits violation

of the terms of probation, revocation by the trial court is not arbitrary or capricious); State

v. Mitzi Ann Boyd, No. 03C01-9508-CC-00246, 1996 WL 634218, at *3 (Tenn. Crim. App.,

at Knoxville, Nov. 1, 1996). Accordingly, McKinney is not entitled to relief, and the

decision of the trial court is affirmed.

CONCLUSION

Upon review, we affirm the judgment of the trial court.

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CAMILLE R. McMULLEN, JUDGE

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