State of Tennessee v. Richard D. Baker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 24, 2009 Session

STATE OF TENNESSEE v. RICHARD D. BAKER

Appeal from the Criminal Court for Sullivan County

No. S50,593 Jon Kerry Blackwood, Senior Judge

No. E2008-01382-CCA-R3-CD - Filed June 5, 2009

The defendant, Richard D. Baker, appeals the revocation of his six-year probationary sentence. He

contends that the trial court erred by revoking his probation before the commencement of the

probationary term and by ordering incarceration. Discerning no error, we affirm the judgment of the

trial court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and D. KELLY THOMAS, JR., JJ., joined.

Wade V. Davies, Knoxville, Tennessee, for the appellant, Richard D. Baker.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;

H. Greeley Wells, District Attorney General; and Barry P. Staubus, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

In April 2005, a Sullivan County grand jury charged the defendant with one count

of assault, one count of aggravated burglary, one count of especially aggravated kidnapping, and four

counts of aggravated assault. The charges stemmed from the defendant’s December 29, 2004

uninvited entry into the residence of his ex-wife, Olivia Baker, wherein he struck Ms. Baker in the

face, threatened the lives of Billy Ray Insco1 and Charles Nelson Wright with a handgun, and forced

Mr. Insco from the home at gunpoint. On January 31, 2006, the defendant entered pleas of guilty

to assault, aggravated burglary, kidnapping, and two counts of aggravated assault. The facts, as

summarized by the State at the plea submission hearing, are as follows:

1

Different portions of the record utilize different spellings of M r. Insco’s name. As is the policy of this court,

we utilize the spelling in the indictment.

If there had been a trial in this case the State’s proof

would be that this offense occurred on December the 29th, 2004[,] at

3736 Arrowhead Trail, which is located in Kingsport, Sullivan

County. The State’s proof, again if there had been [a] trial, would be

that of Olivia Baker, who was the ex-wife of the defendant. She

resided at that address . . . it was her home. She had hired a Billy Ray

Insco[] and Nelson Wright to do security work at her home. Her

testimony would be the defendant came to the door, she told him to

leave, she advised that she went outside and that the defendant stated

he had a key that he wanted to try. Her testimony would be she told

him that he could not come in the house and that he pushed her out of

the way and he went into the house and that he went upstairs and then

she went upstairs and at that point the defendant came in contact with

Billy Insco[], one of the security workers. Her testimony would be

that Doctor Baker grabbed her by the hair in her bedroom and hit her,

punched her in the eye. And then he turned around and after hitting

her he went downstairs and went outside and went next door.

Now the State’s proof would be that he returned with

a weapon and Mr. Insco[] advised that the defendant, and he would

testify to this, that the defendant came back with a gun and started

asking who he was and what he was doing there. Mr. Insco[]’s

testimony would be that the defendant pointed a gun at him and

stated, “I’ll kill you,” and then hit him twice in the head with the

weapon and drug him into the house. And Nelson Wright would say

during this time that the defendant also pointed the gun in a

threatening manner toward him, a deadly weapon, and that Olivia

Baker’s testimony would be during this time that she observed that

he also pointed a weapon at her. That would be the State’s proof, . .

. if there had been a trial in this case.

Pursuant to a plea agreement with the State, the defendant received an effective

sentence of twelve years to be served as six years’ incarceration in the Department of Correction

(“TDOC”) followed by six years’ supervised probation. As a condition of probation and as a special

condition of each judgment, the trial court ordered the defendant to have no contact with any of the

victims.

On April 18, 2008, while the defendant was serving his TDOC sentence, the State

filed a “Motion for Violation of Probation,” alleging that the defendant had violated the terms of his

probation by writing to Ms. Baker on three separate occasions. The defendant filed a response to

the State’s motion, arguing that the trial court was without authority to revoke his probation because

his probationary term had not yet commenced, that the State had “engaged in unreasonable delay”

in filing the motion, that the defendant had already been punished via a denial of parole for writing

the letters, and that the trial court should consider “less onerous alternatives to revocation.” The

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defendant admitted writing the letters and stated that no other letters had been written since January

2007.

Neither party presented testimony at the May 12, 2008 hearing on the revocation

motion, choosing instead to rely upon the arguments of counsel and the letters written to Ms. Baker.

At the conclusion of the hearing, the trial court revoked the defendant’s probation, finding first that

“he [was] subject to probation and that . . . he [was] subject to the conditions of the probation in the

second sentence.” The court also found that the revocation was “timely filed and that as far back as

January[] 2007 the State gave notice of these letters or their intention to file a probation revocation

as a result of these conditions.” The trial court noted that “the most important consideration of

probation in this plea arrangement was that he have no contact with any of the victims in this case”

and concluded that “based upon these letters and [the defendant’s] own admission that from . . .

October 2006 through January of 2007 that he wrote three letters . . . they are clear violations of the

terms of probation.” The court determined that “the State has proved by a preponderance of the

evidence that [the defendant] has violated the terms not only of his probation but the terms of the

plea arrangement as well.”

The trial court noted that it was particularly concerned that the defendant had “not

taken any responsibility for his actions and still considers that his plight is a result of either the

manipulations of the Sullivan County Judicial System, the District Attorney’s Office and law

enforcement or the manipulations and allegations made by his ex-wife and . . . the two men that were

there.” The court observed that the defendant’s role in the offenses was clear and concluded that the

defendant “definitely poses a threat to society until he gets a grip on his responsibility for his

conduct in this case.” The trial court did not order that the entirety of the second six-year sentence

be served in confinement but instead ordered the defendant to serve an additional year of

incarceration to be followed by supervised probation with global positioning system (“GPS”)

monitoring. The court specified that the defendant was to commence service of the 12 months’

incarceration immediately upon his release on parole, which the parties believed to be imminent, and

ordered that the sentence be served in TDOC “simply because of the medical issue.”2

The defendant filed a timely notice of appeal from the revocation order. In this

appeal, the defendant first contends that the trial court was without authority to revoke his probation

because the probationary sentence had not yet commenced when he wrote the letters to Ms. Baker.

He also contends that “allowing revocation of probation at this point would rewrite the plea

agreement after the fact and render the plea involuntary.” He asserts that the trial court abused its

discretion by revoking his probation because he has already been punished, via a denial of parole,

for writing the letters, because he has not contacted the victim since January 2007, and because

“there are adequate safeguards in place to insure the safety of the community.” Finally, in response

to the State’s suggestion that the trial court could not have ordered that the additional 12 months’

incarceration be served in TDOC, the defendant contends that the amendment of the judgment “to

2

Other portions of the record establish that the defendant suffers from severe diabetes requiring that he be

placed in a “special needs” facility within TDOC. The record also establishes that the defendant was denied parole

subsequent to the revocation hearing.

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reflect a jail sentence rather than” a TDOC sentence would be “clearly contrary to the intent of the

trial court.” He asks that should we find revocation appropriate but a TDOC sentence improper, we

should remand the case for the trial court to reconsider the remedy portion of the revocation order.

I. Trial Court’s Authority to Revoke Probation

The defendant contends that the trial court erred by revoking his six-year probationary

sentence before the probationary term had actually commenced. The State asserts that the trial court

possessed the authority to revoke the defendant’s probation at any time following the entry of the

judgment. We agree with the State.

Although the defendant correctly asserts that his six-year probationary sentence had

not yet begun when he wrote the letters to Ms. Baker, this court has repeatedly held that “from the

date of the entry of a judgment . . . a trial court has the authority to revoke probation if a defendant

commits another crime after entry of the judgment, but before the probationary term begins.” State

v. Stone, 880 S.W.2d 746, 748 (Tenn. Crim. App. 1994); see also, e.g., State v. Stubblefield, 953

S.W.2d 223, 225 (Tenn. Crim. App. 1997). In Stone, we ruled that neither the language in Code

section 40-35-310 providing for revocation “at any time within the maximum time that was directed

and ordered by the court for the suspension,” see T.C.A. § 40-35-310 (2006), nor the language in

section 40-35-311 applying revocation procedures to a defendant “who has been released upon

suspension of sentence,” see id. § 40-35-311, “purport[s] to limit to such a circumstance the trial

court’s authority to act.” Stone, 880 S.W.2d at 748. Later, in State v. Smith, 909 S.W.2d 471 (Tenn.

Crim. App. 1995), this court reiterated Stone’s holding that “the procedural statutes d[o] not purport

to limit the trial court’s power to revoke” and held “that from the date of entry of the judgment of

conviction, a trial court has the authority to revoke probation for the violation of a probationary

condition whose application the defendant was made aware, even if the probationary term has not

yet begun.” Id. at 473.

In Smith, Smith pleaded guilty to the assault and stalking of the victim. His

consecutive 11-month and 29-day sentences were initially diverted with the “relevant” condition of

his release being: “‘Stay away absolutely from victim and her family, their homes, places of

employment, children’s schools. There shall be no contact, whether by mail, message, telephone,

third party, or in person.’” Id. at 472. Smith violated this condition, and the trial court revoked

diversion and ordered the defendant to serve the first of the two sentences in the Weakley County

Jail and the second on probation following his release from jail. While he was in jail, Smith

telephoned the victim, dedicated a song to her on the radio, and had his sister contact the victim. The

trial court revoked Smith’s probation on the second sentence as a result of the contact. This court

affirmed the revocation, finding that the principles iterated in Stone were applicable to Smith’s case

“even though [Smith’s] conduct might be viewed to violate a court-ordered condition of probation

and not a criminal statute.” Id. at 473. Because Smith was “advised in open court” of the no-contact

condition, we reasoned, “even though his probationary term had not begun, [Smith] was given

sufficient notice to comply with due process that his violation of the no contact order would result

in revocation.” Id.

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The relevant facts in Smith are indistinguishable from those in this case. From the

commencement of proceedings in this case, the trial court repeatedly admonished the defendant that

he was to have no contact with any of the victims in this case. Indeed, the defendant’s bond was

revoked on the basis of his continued contact with Ms. Baker. At the plea submission hearing, the

trial court emphasized the importance of the defendant’s having no contact with Ms. Baker and the

provision was included as a “special condition” on each of the judgment forms. Notwithstanding

the oral and written admonitions of the trial court, the defendant refused to comply with the no-

contact provision.

We are also unpersuaded by the defendant’s argument that the plea agreement in this

case was in any way “unique” or that it distinguishes this case from Stone or Smith or, for that

matter, any of the other myriad cases allowing revocation prior to the commencement of the

probationary term. Although the defendant repeatedly posits that the fact that the defendant’s

“probation was not to start” until he had fully served his first sentence was an extraordinary sentence

alignment, such an alignment was exactly the case in Smith and is, indeed, a routine sentencing

alignment in this state. Given the defendant’s obvious awareness of the no-contact condition, this

court’s previous holdings that probation may be revoked prior to the commencement of the

probationary term, and the fact that the defendant’s case is indistinguishable from our earlier cases,

we cannot say that the trial court lacked the authority to revoke the defendant’s probation in this

case.

II. Voluntariness of the Guilty Pleas

The defendant contends that “allowing revocation of probation at this point would

rewrite the plea agreement after the fact and render the plea involuntary.” He argues that “[t]he plea

would not have been knowing and voluntary if it is later determined that Dr. Baker was to be on

probation for twelve years.” We need not belabor this argument because it is presented for the first

time on appeal and therefore waived. See Tenn. R. App. P. 36; State v. Johnson, 970 S.W.2d 500,

508 (Tenn. Crim. App. 1996) (“Issues raised for the first time on appeal are considered waived.”).

III. Propriety of Revocation

The defendant claims that the trial court erred by revoking probation and ordering

incarceration in this case because he “has already been severely punished for writing the letters”

because “the Parole Board denied parole specifically because Dr. Baker contacted the victim.” The

State submits that the trial court acted properly. We agree with the State.

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. § 40-35-311(e)

(2006); Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). A revocation will be upheld

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

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was 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)). Upon finding a violation, the trial court may “revoke the probation and

suspension of sentence and cause the defendant to commence the execution of the judgment as

originally entered.” T.C.A. § 40-35-311(e). 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 the suspension.” Id. § 40-35-310. 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).

Here, the defendant admits that he committed the violation alleged but argues that

the trial court erred by ordering incarceration because he had already been denied parole on the basis

of the same conduct. The “Notice of Board Action” included in the record indicates that at least

three of the parole board members cited the defendant’s contact with the victim as a basis for the

denial of parole. All of the signing board members cited a desire to refrain from depreciating the

seriousness of the offenses as a reason for denying parole.

The defendant has cited no authority in support of his argument, and we can find

none. The defendant’s situation is not unlike the probationer who violates his probation by

committing another crime and later receives both a probation revocation and a separate conviction

and sentence for the violative conduct. Surely the defendant does not intend to suggest that

revocation in such analogous circumstances would be inappropriate. That the defendant’s parole was

denied, at least in part, on the basis of his writing the letters to the victim does not impact the trial

court’s discretion to revoke his probation.

We agree with the trial court that the defendant’s continued efforts to contact with

Ms. Baker demonstrate an unwillingness to abide by the conditions of his probation or accept

responsibility for his conduct. Moreover, we are unmoved by the defendant’s assertion that he has

not contacted the victim since January 2007. The defendant’s newfound desire to comply with the

conditions of his sentence does not alter the fact that he blatantly violated the most paramount

condition of the plea agreement. The trial court did not err by revoking the defendant’s probation

and ordering that he serve an additional 12 months of incarceration.

IV. Location of Service of Incarceration

In a footnote in its brief, the State “acknowledges that the trial court did not have the

authority to sentence the defendant to serve 12 months in TDOC and that the court can only order

split confinement to the county jail.” In response, the defendant states that “suggesting that the

judgment should be amended to reflect a jail sentence rather than have Dr. Baker serve the time in

a Department of Correction facility as ordered . . . is clearly contrary to the intent of the trial court”

and suggests that, if the State’s assertion is correct, the case should be remanded so that the trial

court can fashion the appropriate remedy.

We note simply that the State’s generalized assertion is incorrect, or at least

incomplete. Although it is generally true that “if the sentence is eight (8) years or less and combined

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with periodic or split confinement not to exceed one (1) year, the court shall designate the place of

confinement as a local jail or workhouse,” T.C.A. § 40-35-314(a) (2006), the trial court possesses

the authority to “transfer the defendant to” TDOC in the event the defendant “develops medical

problems that the local jail or workhouse is not equipped to treat,” id. § 40-35-314(e). In this case,

the record establishes that the defendant’s medical condition necessitates a TDOC sentence. In

consequence, the trial court committed no error by ordering the defendant to serve the additional 12

months’ incarceration in TDOC.

V. Conclusion

In light of the foregoing analysis, we affirm the judgment of the trial court.

___________________________________

JAMES CURWOOD WITT, JR., JUDGE

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