STATE OF TENNESSEE v. GEORGE P. FUSCO

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville December 18, 2013

STATE OF TENNESSEE v. GEORGE P. FUSCO

Appeal from the Criminal Court for Davidson County

No. 2007-D-3280 Monte Watkins, Judge

No. M2013-00991-CCA-R3-CD - Filed January 28, 2014

Appellant, George P. Fusco, pleaded guilty to two counts of sexual battery by an authority

figure and received a five-year sentence for each count, to be served concurrently. He served

six months in confinement, and the remainder of his sentence was suspended to probation.

A violation of probation warrant was subsequently filed, alleging that appellant drove an

unregistered vehicle, owed $420 in “GPS fees,” used or possessed an alcoholic beverage, and

violated regulations regarding Halloween trick-or-treaters. The trial court revoked his

probation, and this appeal follows. Appellant now alleges that the trial court denied him

procedural due process by failing to make adequate factual findings regarding the evidence

supporting his probation revocation, that the trial court abused its discretion when it revoked

his probation, and that the relevant Halloween probation conditions are unduly restrictive.

Following our review, we reverse the judgment of the trial court and remand for further

proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

and Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and

N ORMA M CG EE O GLE, J., joined.

Andrew B. Love (on appeal) and William Conway (at hearing), Nashville, Tennessee, for the

appellant, George P. Fusco.

Robert E. Cooper, Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick and Hugh

Ammerman, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

A violation of probation warrant was issued on January 13, 2013. The trial court held

a hearing regarding the probation violation on March 27, 2013.

At the hearing, the State presented a probation officer, Mr. Donald Rietdorf, as a

witness. He testified that he supervised appellant for approximately six months before he

was reassigned to work in a different office. Mr. Rietdorf stated that appellant violated his

probation during that time by violating “rule one,” which required appellant to “obey the laws

of the United States, or any state,” by “driving a vehicle not listed on his sex offender

registry;” and by violating “rule nine,” which required appellant to “[p]ay all required fees

of supervision criminal injuries fund,” by owing $420 in “GPS fees.” Mr. Rietdorf also

stated that appellant violated “rule number twelve,” which requires sex offenders to abide

by specialized probation conditions.” He stated that of these specialized conditions,

appellant violated “number four,” which required appellant not to “use or possess any

alcoholic beverages or any other mind-altering substances,” by having alcohol in his home

on Halloween. Mr. Rietdorf stated that appellant violated “number six” of the special

conditions, which requires that he drive a vehicle registered with the “TBI sex offender

registry monitoring program,” by driving an unregistered vehicle. Lastly, appellant violated

“number nine” of the special conditions, which required appellant to “not enter into any

contact with any child under eighteen or anyone who is unable to give consent.” Mr.

Rietdorf stated that part of this requirement was that on Halloween, appellant must have had

his “lights . . . turned off at the house, there is no trick or treating, no candy, none of that.”

He testified that on Halloween, when the probation officers checked appellant’s home,

another man, Mr. Weary, answered the door holding a bowl of candy. Appellant was inside

the home.

On cross-examination, Mr. Rietdorf stated that the unregistered vehicle appellant was

driving belonged to appellant’s employer and that whenever appellant changed vehicles, he

had forty-eight hours to register that vehicle. Appellant was also required to pay the

probation office $65 each month in fees. Mr. Rietdorf testified that on Halloween, appellant

was not in possession of the alcoholic beverage, but rather, Mr. Weary’s wife had a glass of

wine. Mr. Rietdorf stated that appellant was employed by Mr. Weary and lived with Mr. and

Mrs. Weary. He also stated that the porch lights were on when they approached appellant’s

home.

Appellant called John F. Weary, Jr., to testify on his behalf. Mr. Weary stated that he

knew appellant through appellant’s former girlfriend. Mr. Weary explained that appellant

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used one room and one bathroom in his home but that the rest of the house belonged to him

and his wife. Appellant also worked for Mr. Weary by repairing equipment and helping load

and unload Mrs. Weary’s catering vans. Regarding the incident on Halloween, Mr. Weary

stated that appellant did not distribute any candy, drink any alcohol, or have any alcohol in

his room. Mr. Weary stated that he had his porch light on and that he was giving out candy

but that he turned his porch light off and stopped giving out candy when directed to do so by

the probation officers. He stated that his wife had the alcohol on Halloween and that since

this incident, he has removed all the alcohol from his home. Since this incident, Mr. Weary

has registered every company vehicle “that has a license plate on it that is driven” on

appellant’s sex offender registry. Mr. Weary also testified that Mr. Rietdorf told appellant

that his bill was incorrect because he had been “overbilled based on the ala carte amount not

the daily amount” and that Mr. Rietdorf would correct the error.

On cross-examination, Mr. Weary stated that appellant pays his rent by working ten

hours per week unpaid and then is paid $15 per hour for work exceeding those ten hours.

Appellant also performed lawn care and vehicle maintenance for Mr. Weary. Mr. Weary

explained that he provided appellant a room in his home because he believed that appellant

had been wrongly accused initially. Mr. Weary stated that his understanding of the probation

rules regarding Halloween was that the rules applied to appellant’s residence, his bedroom,

and not Mr. Weary’s entire home and that appellant did not hand out candy, greet the

children, or go near the front door.

After hearing this proof, the record reflects that the trial judge stated the following on

the record:

It is, obviously, difficult for one who is charged with a sex offense. It’s

difficult to comply with all the conditions because there are so many

conditions. But some people are able to do so. I think, in this particular case,

there is a little push on both sides here, from the probation department, as well

as Mr. Fusco. And what Mr. Fusco has to do is to be in strict compliance. And

if he is in strict compliance, although difficult, he will not have any issues.

So, I will sustain the violation. I am -- I have some concern, that, you know,

about -- and I understand the reason behind having very strict conditions, but,

you know, I have some concerns about some of these conditions. So, I am

going to make him serve sixty days[,] and if he violates, there is a -- well, I’ll

just have him serve sixty days. I will deal with the matter if it comes up again.

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Therefore, trial court entered an order revoking appellant’s probation for sixty days but did

not issue any written findings of fact or state the legal basis for the revocation. The trial

court also denied appellant’s motion for an appeal bond.

II. Analysis

On appeal, appellant argues that: (1) the trial court denied him procedural due process

by failing to make adequate factual findings regarding the evidence supporting his probation

revocation; (2) the trial court abused its discretion when it revoked his probation; and (3) the

relevant probation rules regarding Halloween are unduly restrictive of appellant’s liberty

under Tennessee Code Annotated section 40-35-303(d)(9). The State responds that the trial

judge’s factual findings were sufficient to satisfy due process requirements and that the trial

court properly revoked appellant’s probation. We conclude that the trial court failed to make

adequate findings regarding appellant’s probation violation. We reverse the trial court’s

judgment and remand to the trial court for further proceedings consistent with this opinion.

A. Due Process

Appellant argues that the trial judge violated appellant’s due process rights by failing

to make adequate findings of fact when revoking appellant’s probation. A defendant at a

probation revocation proceeding is not entitled to the full array of procedural protections

associated with a criminal trial. See Black v. Romano, 471 U.S. 606, 613 (1985); Gagnon

v. Scarpelli, 411 U.S. 778, 786-790 (1973). In Practy v. State, this court reiterated the

“minimum requirements of due process” during probation revocation proceeding, stating that

a probationer is entitled to:

(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 on and

reasons for revoking [probation or] parole.

Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974) (citing Morrissey v. Brewer,

408 U.S. 471, 489 (1972)); see Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). A trial court

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can comply with subsection (f) by making findings of fact on the record. State v. Delp, 614

S.W.2d 395, 397 (Tenn. Crim. App. 1974).

Here, the trial court did not make any written findings but made a statement on the

record. However, unlike in Delp, where “the trial judge made detailed findings orally from

the bench at the conclusion of the hearing,” id. at 397, that consumed approximately three

and a half typewritten pages in the record, the record here reflects that, in two paragraphs,

the trial judge noted his concern with the exacting conditions of appellant’s probation but

also noted that appellant was required to be in strict compliance with those conditions. Also,

during the questioning of a witness, the trial court stated, “Let me stop right here. I don’t

care about the van. Okay? About him driving some unregistered van. That’s not my

concern. These other matters I’m concerned with.” The trial court made no other findings

of fact regarding what it relied on and the reasons for revoking appellant’s probation.

Prior to the court’s determination, it heard from two witnesses and was presented with

documentary exhibits. However, the trial court failed to elucidate what facts it relied on and

the specific reasons for which it revoked appellant’s probation and, therefore, failed to

substantially comply with the procedural requirements of due process. Because the trial court

held a proper evidentiary hearing, we reverse the judgment of the trial court and remand for

entry of a written order detailing the evidence it relied upon and the reasons for revoking

appellant’s probation.

B. Probation Revocation and Conditions on Probation

Appellant argues that the trial court abused its discretion by revoking his probation.

However, because the trial court failed to state which facts it relied on when revoking

appellant’s probation, we are unable to determine if the trial court abused its discretion.

C. Conditions on Probation

Appellant argues that the relevant Fall Festival/Halloween Restrictions for Sex

Offenders are unduly restrictive of his liberty. However, because the trial court failed to state

which facts it relied on when revoking appellant’s probation, we are unable to address this

issue absent further findings from the trial court.

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CONCLUSION

Based on the parties’ arguments, the record, and the applicable law, we reverse the

judgment of the trial court and remand for proceedings consistent with this opinion.

_________________________________

ROGER A. PAGE, JUDGE

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