State of Tennessee v. Kevin Potter

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 29, 2014

STATE OF TENNESSEE v. KEVIN POTTER

Appeal from the Criminal Court for Campbell County

Nos. 13928, 14179, 14070, 14076, 14888, and 14975 E. Shayne Sexton, Judge

No. E2013-01493-CCA-R3-CD - Filed February 21, 2014

The defendant, Kevin Potter, appeals the Campbell County Criminal Court’s order revoking

his probation and ordering him into confinement. Because the record supports the order, we

affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE

O GLE, J., joined. J EFFREY S. B IVINS, J., concurred in results.

Tina L. Sloan (on appeal) and William C. Jones (at hearing), Assistant District Public

Defenders, for the appellant, Kevin Potter.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Lori Phillips-Jones, District Attorney General; and Michael O. Ripley, Assistant

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

OPINION

This appeal is the defendant’s second appeal from the orders of the trial court

revoking the defendant’s probation in a number of trial court cases. The first appeal resulted

in a remand to the trial court for that court to express its findings of fact supporting

revocation. See State v. Kevin C. Potter, No. E2012-00794-CCA-R3-CD (Tenn. Crim. App.,

Knoxville, Feb. 21, 2013). The opinion in Kevin C. Potter efficiently outlines the

background and procedure of this case:

This case arises out of multiple guilty pleas entered by

the [d]efendant. On October 26, 2009, the [d]efendant pled

guilty to one count of possession of a Schedule II drug, theft of

property valued over $500.00, possession of marijuana,

promotion of the manufacture of methamphetamine, evading

arrest, aggravated burglary, resisting arrest, possession of a

Schedule II drug with the intent to sell, and assault. The trial

court sentenced the [d]efendant to fifteen years, ordering that he

serve his sentence on probation.

On May 23, 2011, the [d]efendant pled guilty to

possession of drug paraphernalia and vandalism under $500.00.

These convictions were the basis for the [d]efendant’s first

probation violation warrant. It appears from the record that he

pled guilty to violating the conditions of his probation sentence.

The trial court ordered that the [d]efendant’s probation be

reinstated.

On July 21, 2011, a probation violation warrant was

issued based upon a July 18, 2011, domestic violence charge,

which was later dismissed. On August 15, 2011, the trial court

again found the [d]efendant guilty of violating the conditions of

his probation sentence. The trial court again reinstated the

[d]efendant’s probation. The trial court ordered, however, that

the [d]efendant could not be released from custody until after he

showed proof of employment to his probation officer and the

Board of Probation and Parole approved a plan for the

[d]efendant’s payment of fines and fees.

On November 19, 2011, a violation of probation warrant

was issued based upon a November 8, 2011, manufacturing

methamphetamine charge, which was later dismissed. On

February 27, 2012, the trial court found the [d]efendant guilty of

violating his probation. The trial court ordered the [d]efendant

to serve the remainder of his sentence in the custody of the

Tennessee Department of Correction.

Kevin C. Potter, slip op. at 2 (footnote omitted).

This court then described the revocation hearing that was held in Kevin C.

Potter:

At the hearing to determine whether the [d]efendant had

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violated his probation, the only witness was the [d]efendant’s

probation officer, Kelly Andrews. She testified that the

[d]efendant was arrested on November 8, 2011, for

manufacturing methamphetamine. On November 19, 2011,

Andrews filed an affidavit in support of a probation violation

warrant. In her affidavit, she alleged that the [d]efendant had

violated several of the terms of his probation, including a

requirement that he follow the law. Andrews agreed that the

manufacturing methamphetamine charge against the [d]efendant

had been dismissed on December 13, 2011.

Andrews testified that her affidavit also alleged that the

[d]efendant had violated his probation by failing to maintain

lawful employment. Specifically, he had failed to provide her

with proof of employment or proof that he was seeking

employment.

Andrews said that the [d]efendant had violated his

probation by failing to carry out her “lawful instructions.” She

expounded that she instructed the [d]efendant to report on

October 4 and that he did not report at any time in October.

Andrews testified the [d]efendant also failed to attend a

scheduled class called “Thinking For a Change,” which was

held on October 5. The [d]efendant had not reported to her

since September.

Andrews testified that the [d]efendant also violated his

probation by failing to pay his supervision fees, which were

$45.00 per month. At the time of the hearing, he owed the

Board of Probation and Parole at least $225.00. He had

similarly failed to pay the required court costs of $25.00 per

week, for a total of $125.00.

Andrews recounted the [d]efendant’s history of

supervision, saying that he began parole in Illinois. After

finishing the required time there, he returned to Tennessee to

serve his probation. She said that his probation has been

“sporadic” and that he had violated his probation multiple times.

Most of the violations were based upon new charges. Andrews

opined that the [d]efendant was not willing to abide by the terms

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of his probation.

On cross-examination, Andrews testified that she had

supervised the [d]efendant beginning in 2009 and that, at first,

she saw him twice per month. She reduced the visits to once per

month shortly before the [d]efendant was charged with multiple

offenses, which were the basis for his first probation violation.

Andrews recalled that the [d]efendant’s second probation

violation was based on new charges of domestic violence and

vandalism. When the victim failed to appear in that case, the

case was dismissed. At the hearing on this second probation

violation, the trial court found that, even though the new charges

were dismissed, the [d]efendant was still in technical violation

of his probation because he had failed to pay his supervision

fees. The trial court ordered him to provide proof of

employment, and the [d]efendant provided Andrews with

documentation that he had employment arranged at a marina

upon his release.

Id. at 3.

We noted that after hearing this evidence, the trial court

expressed its views:

“This is a third, correct--a third violation. The Court’s

concern about this was the length of the--I’m showing a 15-year

probation.

....

. . . . You know, . . . I don’t relish the idea of imprisoning

someone for that length of time without a great deal of thought,

but I’m gonna find he’s in technical violation. I didn’t know at

the time that he had been paroled out of Illinois. That

has--that’s very looming in the prospects for probation. This is

not working, gentlemen. I’m all for giving opportunities . . . to

get things right, and the fact that we had a dismissal on a charge

doesn’t necessarily clean up everything.

....

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Well, I guess what Ms. Andrews said. You know, I

mean, [the dismissed charge is] certainly not a conviction, but

. . . I don’t know that I’d call it an acquittal. I’m gonna give him

credit for the time that he’s served on these charges on pretrial,

any violation time, and I’m gonna call it a day on probation for

any time of alternative sentencing. The defendant hasn’t

worked out too well. So, remand to the Tennessee Department

of Corrections.”

Id. at 4.

Upon this court’s review of the revocation proceeding, we commented that the

trial court “did not issue any written findings of fact,” id. at 4, and “did not address the

allegations made in the third revocation warrant, which were technical in nature,” id. at 6.

Also, “[t]he trial court also did not set forth the evidence it relied upon in revoking the

[d]efendant’s probation as required by the due process standards.” Id. at 6. Therefore, we

“reverse[d] the judgment of the trial court and remand[ed] for entry of a written order

containing specific factual findings upon which the trial court relied when it ordered the

[d]efendant’s probation revoked.” Id.

On remand, the trial court conducted a hearing on April 14, 2013. The court

reviewed the transcript from the hearing held on February 27, 2012. The court found that the

State had established that the defendant failed to meet with his probation officer and failed

to attend his counseling class, both in October 2011. The judge commented that the

defendant had failed to “keep up with payment obligations” and that he had been convicted

of a misdemeanor in May 2011, but in stating the bases for revoking the probation, the court

said that it relied upon the failures to report and attend class in October 2011.

On April 15, 2013, the trial court entered new orders effecting the revocation

of the defendant’s probation and ordering him to serve the balance of his sentence in the

department of correction. The defendant filed his notice of appeal embracing all affected

cases on June 25, 2013.

On appeal, the defendant posits that the trial court erred by (1) relying upon

evidence not before the court, (2) sentencing the defendant based upon non-payment of court

costs and supervision fees, and (3) sentencing the defendant based upon the revocation

proceeding’s being a third such proceeding when the second proceeding violated the

defendant’s due process rights. The defendant also claims that cumulative error resulted

from the trial court’s actions.

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The accepted appellate standard of review of a probation revocation is abuse

of discretion. See State v. Shaffer, 45 S.W .3d 553, 554 (Tenn .2001); see also State v.

Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court abuses its

discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases its

ruling on a clearly erroneous assessment of the proof, or applies reasoning that causes an

injustice to the complaining party.” State v. Phelps, 329 S .W.3d 436, 443 (Tenn. 2010).

The 1989 Sentencing Act expresses a burden of proof for revocation cases: “If the trial judge

finds that the defendant has violated the conditions of probation and suspension by a

preponderance of the evidence, the trial judge shall have the right by order duly entered upon

the minutes of the court to revoke the probation and suspension of sentence. . . .” T.C.A.

§ 40-35-311(e)(1).

Upon a finding by a preponderance of the evidence that the defendant has

violated the conditions of probation, the trial court may revoke the defendant’s probation and

“[c]ause the defendant to commence the execution of the judgment as originally entered, or

otherwise in accordance with § 40-35-310. Id.; see also Stamps v. State, 614 S.W.2d 71, 73

(Tenn. Crim. App. 1980). Following a revocation, “the original judgment so rendered by the

trial judge shall be in full force and effect from the date of the revocation of such

suspension.” Id. § 40-35-310. The revoking court may extend the period of probation

supervision for a period not to exceed two years. Id. § 40-35-308(c).

In his first issue, the defendant maintains that the trial court relied upon

information not before the court in revoking his probation. In particular, the defendant

complains that the trial court considered an Illinois conviction that had not been established

by evidence in the revocation proceeding. We disagree. Although the trial court

acknowledged that the defendant’s probationary sentence did not commence until the

defendant had completed serving a sentence in Illinois, the court expressly relied upon the

defendant’s lapses in October 2011 as the bases for the revocation and the order to

confinement. The trial court further acknowledged that the failure to report and the failure

to attend the counseling meeting in October 2011 were “technical violations,” but

nevertheless the trial court deemed them justification to revoke probation. Indeed, a

“‘technical violation’ is sufficient to support a probation revocation.” State v. Isaac Thomas,

No. E2011-00565-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, Dec. 5, 2011)

(quoting State v. Herbert Russell Johnson, No. E2003-02580-CCA-R3-CD (Tenn. Crim.

App. at Knoxville, May 26, 2004)), perm. app. denied (Tenn. Mar. 7, 2012).

Next, the defendant claims that the trial court’s order of confinement was

erroneously based upon the defendant’s alleged non-payment of fees and costs. Again, we

disagree. The trial court mentioned the allegation that fees and costs had not been paid, but

it specifically limited its revocation and order of confinement on the October 2011 lapses of

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conduct.

In his next issue, the defendant posits that the revocation and confinement

order are infirm because a previous revocation hearing was conducted in violation of the

defendant’s due process rights. The revocation now before this court is the third revocation

of the defendant’s probation, and the defendant argues that the trial court’s decision to revoke

and order confinement was in part due to the number of the defendant’s revocation

proceedings. The defendant claims that the second revocation proceeding was conducted in

derogation of his right to counsel and was based upon the filing of new criminal charges that

were later dismissed. He further avers that he was not allowed to cross-examine the

probation officer who testified without being sworn.

As the State points out, the defendant did not appeal the second revocation of

his probation, which essentially resulted in a return to probation. The order declaring the

revocation on the second violation proceeding became final 30 days after it was entered.

This is not a case in which the allegedly infirm order statutorily aggravated or enhanced the

later revocation. Although the defendant cited facts from the second revocation proceeding

and cited law which supports his claim that infirmities in that proceeding exist, he has cited

no authority for the proposition that the unadjudicated infirmities in the second proceeding

should influence this court’s adjudication of the case now before us – the third revocation

proceeding. We do acknowledge, however, that the State failed to cite any authority for the

counter proposition. Additionally, we note that, should a court invalidate the order of

revocation in the second violation proceeding, the effect would be to leave that second

violation proceeding pending; it would not have been dismissed. All of this notwithstanding,

the defendant did not raise this issue in the trial court in the proceeding now before us. On

that ground alone, we decline to address this issue. See, e.g., State v. Maddin, 192 S.W.3d

558, 561 (Tenn. Crim. App. 2005) (“When an issue is raised for the first time on appeal, it

is typically waived.”); see also Tenn. R. App. P. 36(a).

The result is that we affirm the trial court’s order of revocation and

incarceration.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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