State of Tennessee v. Glendall D. Verner

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 11, 2015 Session

STATE OF TENNESSEE v. GLENDALL D. VERNER

Appeal from the Criminal Court for Davidson County

No. 2011-D-3743 Mark J. Fishburn, Judge

No. M2014-02339-CCA-R3-CD – Filed May 31, 2016

_____________________________

The defendant pled guilty on March 21, 2013, to one count of the theft of $1,000 or more,

a Class D felony, and one count of the theft of $60,000 or more, a Class B felony. The

defendant was given an effective ten-year sentence, all of which was to be served on

probation. As part of his probation, the defendant was required to complete two hundred

hours of community service work and was forbidden to sell securities or to work in the

financial services or insurance business. On April 26, 2014, the defendant‟s probation

officer signed a violation of probation affidavit alleging that the defendant was

terminated from his community service program for noncompliance. On May 22, 2014, a

second affidavit was issued, averring that the defendant violated the special condition

forbidding him from working in the financial services industry when he attempted to

solicit investors for a project. The trial court held a hearing on three separate days over

the course of four months, and the court ultimately concluded that the defendant had

violated the terms of his probation. The trial court revoked the defendant‟s probation and

ordered him to serve one year of his sentence in confinement, to be followed by a new

probationary period. The defendant appeals, asserting that his due process rights were

violated because the terms of his probation were unconstitutionally vague, because the

evidence did not establish a violation of his probation, because he was given inadequate

notice of the violation, and because the trial court‟s written findings were inadequate.

After a thorough review of the record, we affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA

MCGEE OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Edward M. Yarbrough and J. Alex Little (on appeal and at trial) and Mandy Strickland

Floyd (on appeal), Nashville, Tennessee, for the Appellant, Glendall D. Verner.

Herbert H. Slatery III, Attorney General and Reporter; Michael A. Meyer, Deputy

Attorney General; Glenn Funk, District Attorney General; and Rob Mitchell, Assistant

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

The defendant‟s convictions stem from his sale of certain securities, including

interests in Value Vest, LLC, Circle G Ranch, and Continental Energy Trust, to Norma

Caruthers, a retiree. The defendant was indicted in October 2011 for one count of theft of

$1,000 or more but less than $10,000; one count of theft of $60,000 or more but less than

$250,000, and two counts of securities fraud. All of the alleged offenses were based on

transactions that took place between December 2007 and April 2008.

The defendant entered his guilty pleas on March 21, 2013, to the two counts of

theft, and the charges alleging securities fraud were dismissed. He was sentenced to two

years for the Class D theft and to ten years for the Class B theft, with the sentences

running concurrently. The defendant was permitted to serve his entire sentence on

probation: six years of supervised probation followed by four years of unsupervised

probation. As part of the terms of his probation, he was also assigned to do two hundred

hours of community service with Fifty Forward in the Victory Over Crime program. The

defendant was to pay $85,000 in restitution to the victim. He was also prohibited from

“from selling stocks, bonds, notes, or securities of any kind” and prohibited “from

working in the financial services or insurance business.”

On April 25, 2014, the defendant‟s probation supervisor swore the first affidavit

which provided the basis for the revocation proceedings, alleging that the defendant

violated the terms of his probation when he was terminated from the Victory Over Crime

program for noncompliance. The second affidavit, sworn on May 22, 2014, alleged that

the defendant engaged in attempts to solicit investors for the Circle G Ranch, violating

the special conditions imposed by the court. The affidavit specified the special condition

violated as: “Subject is forbidden from working in the financial services industry.” The

warrant alleged that the defendant had “engaged in attempts to solicit investors for the

Circle G Ranch / Elvis Presley Tribute.”

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Due to the unavailability of some of the witnesses, the trial court held the hearing

regarding the revocation over three days: on July 10, 2014, on September 11, 2014, and

on October 23, 2014. The State presented evidence that the defendant was terminated

from his community service program. Carolyn Biggers testified that she was the program

director for Victory Over Crime, a free service aimed at helping crime victims and

preventing members of the community from becoming victims. The program was part of

Fifty Forward, which provided community programming for those over fifty years of age.

Ms. Biggers testified that the Victory Over Crime program, which usually does not allow

volunteers with criminal records, crafted a special plan for the defendant, who was to

create presentations to give to the community telling about his crimes and advising

members on how to avoid becoming victims of similar crimes. Ms. Biggers testified that

she was “really excited” to have the defendant participate. She first met with the

defendant in October 2013, when she explained to him that he would have to complete a

training program prior to making actual presentations. The defendant completed twelve

community service hours prior to his termination in April 2014, including six out of ten

necessary training hours. Ms. Biggers testified that the defendant missed some meetings

with her and that he had scheduling conflicts for others. She acknowledged that some of

these conflicts were due to his job. Ms. Biggers spoke to the defendant regarding her

concerns that they were not meeting often enough. In mid-April, Ms. Biggers had a

“frank” discussion with the defendant because she sensed that he was reluctant to

participate in the program. The defendant “had concerns about…the family name” and

“wasn‟t comfortable with telling his story.” He asked if he could do repairs or

landscaping for seniors instead. Ms. Biggers testified that she asked the defendant to

write an article for the association‟s quarterly magazine regarding fraud and that he was

willing to write the article but did not want his name associated with it. During training,

the defendant seemed focused on an allegation that the victim‟s daughter had not been

honest about some restitution, and Ms. Biggers felt that he would not be effective in the

role they had created for him because he did not seem remorseful and was reluctant to

have his crimes known. Accordingly, she spoke to her supervisor and they decided to

terminate the defendant from the program.

Wesley Holder, the defendant‟s probation supervisor, testified during the

September hearing that he completed the affidavit regarding the community service

violation when the defendant was terminated. Mr. Holder stated that, due to scheduling

conflicts, the defendant was not able to complete the work Ms. Biggers needed him to

complete. When asked if he thought the defendant “made an effort” with the program,

Mr. Holder testified, “I don‟t want to say that, you know, he made it a top priority or

anything like that, but, yes, he made an effort.” He testified that public service work

could usually be transferred to a similar organization in the event of scheduling

difficulties but that the defendant‟s probation specified the Victory Over Crime program,

and therefore he could not be transferred to a different organization.

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Regarding the community service violation, the defendant testified that he was

always willing to do what Ms. Biggers had asked and that he was disappointed to be

terminated. He testified that Ms. Biggers had suggested that he could attend an event one

weekend because he had had conflicts on weekdays. The defendant did not attend the

event because he was out of town on that particular weekend and did not think his

attendance was mandatory. The defendant felt that Ms. Biggers was “disgruntled” after

he missed the event, and even though she assigned him “homework” at their next

meeting, she subsequently terminated him from the program. He acknowledged in his

testimony that he had expressed reservations to Ms. Biggers, but he stated that he was

simply trying to be honest when he expressed concerns about acknowledging his crimes

publicly. He averred that he was a “ready and willing” participant of the program.

The State also presented evidence at the hearings that the defendant was involved

in the attempted sale of an interest in the Circle G project. Daniel Kingen had known the

defendant since 1995, when the two sold health insurance together. Mr. Kingen had

borrowed around $15,000 from the defendant in 1998, but Mr. Kingen subsequently

declared bankruptcy and defaulted on the debt. Mr. Kingen testified that around 2009, he

was the plaintiff in a lawsuit which he expected would result in a large payout. However,

he had health problems and ended up borrowing around $200,000 from the defendant for

living expenses as the suit progressed. When the lawsuit did not pay what he expected,

he was unable to repay the defendant. Mr. Kingen testified that he was contacted by an

investigator in spring or summer 2013 and that around the same time, he ran a Google

search on the defendant and discovered his criminal history. Mr. Kingen was angry

because the defendant had started talking to him about Circle G around 2010 or 2011 and

was still “hammering [him] about it” at the time he discovered the defendant‟s

convictions. Mr. Kingen was also angry because the defendant had been contacting Mr.

Kingen‟s friends during the spring and summer of 2013 regarding various investments,

particularly Circle G. Mr. Kingen contacted Investigator Trey King and agreed that he

would approach the defendant with the idea that he knew someone with money to invest.

His understanding of the proposed contract was that the investor would put up $900,000,

the investor would receive around $3 million within 120 days, and the defendant and Mr.

Kingen would each get one million dollars. He agreed that he had told the defendant that

his proceeds would be applied to his prior legitimate debt to the defendant.

Investigator Trey King testified that he had first investigated the defendant in

2004, when the defendant had been targeting the elderly in the sale of promissory notes.

The outcome of the investigation was a civil injunction against a company and its

officers, prohibiting them from the sale of securities or financial instruments.

Investigator King was also involved in the 2011 investigation that led to the defendant‟s

theft convictions. In April 2013, Investigator King received a complaint from a man who

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had seen the defendant‟s guilty pleas in the newspaper and who had given the defendant

$20,000 to invest in Mr. Kingen‟s lawsuit. Investigator King contacted Mr. Kingen, who

told him that the defendant was actively selling investments. Investigator King listened

to some telephone conversations between Mr. Kingen and the defendant, during which

the defendant discussed certain investments. In particular, the defendant mentioned the

Circle G investment, which was run by Jerry Hanserd, and the Defender Homes

investment, which was run by Ken Brown, who had also been one subject of the 2004

injunction. Investigator King, Mr. Kingen, and Mr. Kingen‟s counsel came up with the

idea to have an investigator pose as an investor and to record the defendant‟s proposals to

the potential investor. Investigator King was questioned about entrapment by the

defendant‟s counsel.

Investigator Roy Copeland posed as a friend of Mr. Kingen‟s who had $900,000 to

invest. Investigator Copeland had two telephone conversations and two face-to-face

meetings with the defendant, during which they discussed investment opportunities with

Circle G and Value Vest. The Circle G opportunity was presented as an investment in

which Investigator Copeland‟s $900,000 would be given to Circle G for a translation of a

documentary featuring Elvis Presley‟s Kingsmen. The money was to be used to translate

the film for buyers who were already in place, and Investigator Copeland was told that he

would receive his $900,000 back, with an additional $2.7 million, within 120 days.

Investigator Copeland testified that he knew that Mr. Kingen was the defendant‟s

longtime friend, and he acknowledged that Mr. Kingen owed the defendant money and

the defendant would have a financial incentive for facilitating the deal. One of the

recorded conversations was submitted as an exhibit. In the conversation, the defendant

explained the Circle G investment, using the first person plural. In the recording, the

defendant also mentioned Defender Homes and a water bottling company in Fiji as

potential investments for Investigator Copeland. Two emails sent from the defendant to

Mr. Kingen, attaching a contract for Investigator Copeland to review, were introduced as

exhibits.

Investigator Copeland testified that one of the recordings indicated that the

defendant and Mr. Kingen would share a finders‟ fee for inducing the investor to give

money to Circle G. Mr. Kingen also testified that both he and the defendant would each

receive a million dollars and stated that the defendant told him they would split a

commission. Investigator King testified that there was a reference in one of the

recordings to the defendant receiving a commission.

The defendant acknowledged during the revocation hearing that he had a prior

history of misconduct, including a securities fraud conviction in the 1990s and a civil

injunction issued in 2004 related to the sale of promissory notes. The defendant

confirmed that Mr. Kingen had borrowed $15,000 from him in 1998 and had never repaid

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it. He also testified that he advanced Mr. Kingen $265,000 to live on while Mr. Kingen‟s

lawsuit was pending and that, despite Mr. Kingen and his counsel‟s representations that it

was a strong case, Mr. Kingen never realized the money.

Mr. Kingen began to call the defendant in 2013 about Circle G, telling him that if

Mr. Kingen received a large commission, he would repay his legitimate debts to the

defendant. The defendant testified that he did not approach Mr. Kingen about Circle G.

He testified that Mr. Hanserd had previously told Mr. Kingen about Circle G when Mr.

Kingen had sought to have Mr. Hanserd promote a record of his. The defendant also

denied approaching Mr. Kingen‟s friends about the opportunity, saying that he had only

contacted Mr. Kingen‟s friends to find out where Mr. Kingen was when they were

waiting on the results of the lawsuit. According to the defendant, Mr. Kingen called him

in 2013 to say that Investigator Copeland had an annuity maturing, and Mr. Kingen asked

if they could participate in Circle G. The defendant also testified that he was not to

receive a commission, that the contract specified that only Mr. Kingen would get a

commission, and that his expectation was just that Mr. Kingen would repay the money he

owed the defendant. He stated that he was merely putting Mr. Kingen and Mr. Hanserd

in touch and that none of the money was to go to his companies. He acknowledged,

however, that he was working hard to induce Investigator Copeland to invest and that his

emails to Mr. Kingen show that he was trying to confirm the deal. He also acknowledged

that Mr. Hanserd would “settle up with me compensation, there would have been a

finders[‟] fee.” He admitted discussing splitting a finders‟ fee with Mr. Kingen in one of

the recorded conversations and acknowledged that he agreed with Mr. Kingen that they

would each get one million dollars. The defendant stated he was at fault for getting

involved in the deal but noted that he did not think facilitating it would be a violation of

his probation. He acknowledged that Mr. Hanserd‟s Circle G was the very same

investment opportunity which had resulted in his convictions and probation. He also

testified that he understood that one of the terms of his probation was not to “be involved

in the sale of investments of any kind.”

Twice during the course of the hearing, the defense acknowledged that the

defendant had violated his probation. Prior to the testimony at the hearings, counsel

stated, “We‟re going to concede the technical violation, but we‟re going to put on some

proof about the extenuating circumstances.” At the close of proof, counsel likewise

stated, “[Y]es, he technically violated his probation.” Counsel argued that the defendant

had been induced to take the actions he did because his friend encouraged him and

promised the repayment of a debt. The trial court stated that the friendship with Mr.

Kingen was some mitigation but that using a confidential informant who was acquainted

with the target of an investigation was not unusual. The trial court found that the

defendant “violated the terms and conditions of his probation.” The court referenced the

investment opportunities with Circle G, finding that the defendant was “fully active” in

6

the business, that he was “ready to get back into full-blown business,” and that the emails

demonstrated his deep involvement with the scheme. The trial court noted that on the

reinstatement of probation, the defendant would be required to do general community

service work because he might use a program such as Fifty Forward to lure new

investors. The trial court ordered the defendant to serve one year in confinement and

stated that he would be reinstated to ten years of intensive supervised probation. The

defendant appeals.

ANALYSIS

The defendant‟s appellate argument is that there was not sufficient evidence to

support the finding of a violation. The defendant premises his argument on the fact that

his actions do not constitute “work” in the “financial services business,” that notice of the

forbidden conduct did not comport with due process, that he had no notice of any

violation of the condition forbidding selling securities, and that the trial court did not

make adequate findings, particularly regarding the violation of the community service

provisions of his probation.

Although neither party relies on the fact, we observe that the defendant not only

failed to present this argument to the trial court but specifically conceded a “technical

violation” of his probation – twice. Instead of establishing that his actions did not

constitute “work” or that Circle G was not part of the “financial services” business, the

defendant at the hearing was intent on showing that the violation was mitigated by the

fact that Mr. Kingen was the defendant‟s trusted friend who owed the defendant a

legitimate debt and by the suggestion that Mr. Kingen had initiated the transaction and

that the prosecution had entrapped the defendant, who was only trying to be helpful to a

friend.

We review for plain error the defendant‟s argument that the circumstances of the

revocation constitute a denial of due process. For an error to constitute plain error

sufficient to merit relief, the following factors must be present: a) the record must clearly

establish what occurred in the trial court; b) a clear and unequivocal rule of law must

have been breached; c) a substantial right of the accused must have been adversely

affected; d) the accused did not waive the issue for tactical reasons; and e) consideration

of the error is necessary to do substantial justice. State v. Bishop, 431 S.W.3d 22, 44

(Tenn. 2014) (citing State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.

1994)). Additionally, “„the plain error must be of such a great magnitude that it probably

changed the outcome‟” of the proceeding. Id., 431 S.W.3d at 44 (quoting Adkisson, 899

S.W.2d at 642). This court need not consider all the factors if it is clear that the

defendant failed to establish at least one. State v. Jordan, 325 S.W.3d 1, 58 (Tenn. 2010).

7

We conclude that a substantial right of the defendant was not adversely affected and that

the defendant has not shown that the issue was not waived for tactical reasons.

The defendant‟s argument is that the revocation affidavit charged the defendant

with having violated a specific condition of his probation and that the term specified was

that the defendant was “forbidden from working in the financial services industry.”

According to the defendant, the Circle G investment may have been a financial

transaction, but it was not within the definition of the “financial services” business or

industry. Furthermore, he argues that his role in facilitating this one investment cannot

be said to constitute “work,” because he was not an employee or agent of Circle G and

was not compensated. The defendant contends that the trial court was required to strictly

construe the terms of the defendant‟s probation and to interpret ambiguous provisions in

his favor. He argues that construing the provision prohibiting him from “working in the

financial services … business” to include facilitating the Circle G investment makes the

provision unconstitutionally vague.

The defendant further asserts that the State cannot rely on its counter-arguments

that the defendant violated a different term of his probation. First, the defendant rejects

the argument that he violated the term of his probation prohibiting him from selling

“securities of any kind” because this term was not specified in the warrant. Further, the

defendant asserts that the State cannot rely on the violation of the community service

provisions because the trial court made no specific finding that he violated that provision.

Although the defendant also contends that Investigator King‟s actions violated the

purposes of probation, he clarifies in his reply brief that he does not contend that he was

entrapped. The defendant classifies his arguments as being based in due process.

A trial court may revoke a sentence of probation if it determines by a

preponderance of the evidence that the conditions of probation have been violated.

T.C.A. § 40-35-311(e) (2010). The trial court‟s decision to revoke the defendant‟s

probation is reviewed for abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554

(Tenn. 2001); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Abuse of discretion is

found when the appellate court determines that the trial court “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). In Harkins, the court noted

that reversal of a revocation is only warranted if “the record contains no substantial

evidence to support the conclusion of the trial judge that a violation of the conditions of

probation has occurred.”1 Harkins, 811 S.W.2d at 82. Proof of the violation is adequate

1

However, this court has noted that since the decision in Harkins, the Sentencing Act has been

amended to specify that the trial court must make its findings by a preponderance of the evidence. See

8

when it provides the basis for a “conscientious and intelligent” judgment. Id. The trial

court‟s findings of fact and determinations regarding the credibility of witnesses carry the

weight of a jury verdict. State v. Beard, 189 S.W.3d 730, 735 (Tenn. Crim. App. 2005).

Accordingly, the trial court‟s findings are binding on the appellate court unless the

evidence preponderates otherwise. State v. Lewis, 917 S.W.2d 251, 257 (Tenn. Crim.

App. 1995).

A. Notice of Prohibited Conduct

The defendant argues that the terms of the probation were so broad that he had no

notice of prohibited conduct. Due process requires that the defendant be advised of the

relevant term or condition of his probation at the time that the conduct violating that

provision takes place. See State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App.

1997). As the defendant notes, when the terms of a probation are ambiguous, they must

be construed strictly in the defendant‟s favor – “limiting rather than expanding the

meaning of the words.” Lewis, 917 S.W.2d at 256 (concluding that probation requiring

payment of “hospital bills” did not include payment of other medical expenses caused by

the defendant‟s crimes).

However, this court has previously concluded that notice was constitutionally

adequate when the defendant had previously engaged in the same conduct and had been

penalized by the court for the exact actions that were the basis of revocation. In State v.

Smith, the defendant had violated a “no contact” provision in his probation prior to the

time the probationary period began. State v. Smith, 909 S.W.2d 471, 473 (Tenn. Crim.

App. 1995). He argued in part that he did not have adequate notice regarding the

provision. Id. However, this court rejected his due process argument. Id. The court

noted that he had been advised in open court regarding the provision. Id. Moreover, it

concluded that “no greater notice” could be given than a prior revocation of his diversion

status for violating the same condition. Id. The court determined that this notice was

sufficient to comply with due process. Id. We likewise conclude that the defendant, who

was charged with four crimes and pled guilty to two based on his conduct in selling an

investment interest in Circle G, was at a minimum on notice that he was subsequently

prohibited from selling an investment interest in Circle G, and we hold that this notice of

the prohibited conduct was adequate to comport with due process. The condition of

probation forbidding the defendant from selling securities of any kind also notified the

defendant that he was prohibited from selling an interest in Circle G. Moreover, the

defendant, during his testimony, acknowledged that he understood that one of the terms

of his probation was not to “be involved in the sale of investments of any kind.” We

State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim. App. 2011) (applying the standard but questioning its

continued relevance).

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conclude that notice of the prohibited conduct was, for the purposes of this particular

violation, consistent with due process.

B. Sufficiency of the Evidence and Notice of Violation

The defendant contends that the evidence of the violation was insufficient. In this

case, the defendant conceded a “technical violation” of the terms of his probation. The

defendant did not specify which term of his probation he violated, but his oral argument

focused mainly on the selling of the investment interest to Investigator Copeland. In

State v. Eric William Sanders, No. E1999-00345-CCA-R3CD, 2001 WL 21689, at *2

(Tenn. Crim. App. Jan. 10, 2001), the defendant had stipulated that he violated his

probation by absconding, but he then proceeded to contest the sufficiency of the proof on

appeal. This court noted that the State refrained from presenting evidence “[b]ased on

this stipulation,” and that the defendant “waived his right to require the State to prove by

a preponderance of the evidence” that he violated his probation. Id. Likewise, in Practy

v. State, the defendant‟s guilty plea to a new offense led the court to conclude that

sufficient grounds for revocation existed. Practy v. State, 525 S.W.2d 677, 682 (Tenn.

Crim. App. 1974). In this case, there was no formal stipulation of a violation. However,

we have previously relied on the concessions of counsel that a violation took place in

upholding a revocation. The defendant‟s admission of a violation has itself been held to

be “substantial evidence” that the violation took place. State v. Yvonne Burnette, No.

03C01-9608-CR-00314, 1997 WL 414979, at *2 (Tenn. Crim. App. July 25, 1997); see

State v. Zantuan A. Horton, No. M2014-02541-CCA-R3-CD, 2015 WL 4536265, at *3

(Tenn. Crim. App. July 28, 2015) (stating that a defendant who admitted violating the

terms of his probation conceded an adequate basis for finding of a violation); State v.

Gordon Herman Braden, III, No. M2014-01402-CCA-R3-CD, 2015 WL 2445994, at *2

(Tenn. Crim. App. May 22, 2015); State v. Neal Levone Armour, No. E2003-02907-

CCA-R3-CD, 2004 WL 2008168, at *1 (Tenn. Crim. App. Sept. 9, 2004) (“Essentially,

then, the defendant conceded an adequate basis for a finding that he had violated the

terms of probation.”).

In State v. Ricky Davis, No. 03C01-9706-CC-00215, 1998 WL 205925, at *1

(Tenn. Crim. App. Apr. 29, 1998), the defendant‟s trial counsel conceded that certain

felony convictions were a violation of his probation. This court concluded, however, that

the trial court incorrectly relied on those convictions because they were not referenced in

the warrant and there was accordingly no notice as required under Gagnon v. Scarpelli,

411 U.S. 778, 786 (1973). Ricky Davis, 1998 WL 205925, at *2. Because counsel also

conceded two misdemeanor offenses which were alleged in the warrant, the appellate

court upheld the revocation. Id.

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In this case, the defendant likewise conceded a violation of his probation, in

particular his sale of the investment interest in Circle G, but the violation of the term

forbidding the defendant from “selling … securities of any kind” was not specified in the

warrant. We accordingly consider whether he had constitutionally adequate notice that

the revocation would be based upon the selling of securities. See State v. Christopher

Lynch, No. E2001-00197-CCA-R3-CD, 2002 WL 554462, at *3 (Tenn. Crim. App. Apr.

16, 2002) (holding that counsel‟s concession of a violation not charged in the warrant

was a proper basis of revocation when there was adequate notice).

Because the guilt of a probationer has already been decided, “„the full panoply of

rights due a defendant‟” does not apply to a revocation hearing. State v. Wade, 863

S.W.2d 406, 408 (Tenn. 1993) (quoting Black v. Romano, 471 U.S. 606, 613 (1985)).

However, a probationer‟s freedom from incarceration being at stake, certain due process

rights do apply. Wade, 863 S.W.2d at 408. The minimum requirements of due process

include:

(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, 525 S.W.2d at 680 (quoting Gagnon, 411 U.S. at 786 (quoting Morrissey v.

Brewer, 408 U.S. at 489 (1972))); see Bentley v. State, 938 S.W.2d 706, 714 (Tenn. Crim.

App. 1996) (concluding that it was error to deny probationer notice of violation and a

hearing) superseded by rule as stated in State v. West, 19 S.W.3d 753, 756 n.9 (Tenn.

2000).

Generally, “[t]he revocation of probation based on grounds not alleged and noticed

to the defendant is a violation of due process.” State v. Chad Allen Conyers, No. E2004-

00360-CCA-R3-CD, 2005 WL 551940, at *4 (Tenn. Crim. App. Mar. 9, 2005) (reversing

revocation based not on violation of “peeping tom” statute as alleged in warrant but on

the defendant‟s presence in a department store bathroom “for the purpose of some kind of

sexual activity,” an action which was not prohibited by the terms of his probation). In

State v. David L. Baker, No. M2009-01651-CCA-R3-CD, 2010 WL 2943113, at *4

11

(Tenn. Crim. App. July 26, 2010), the defendant was charged with violating his probation

by committing a new offense and by failing to attend sex offender treatment classes, but

the trial court revoked his probation based on the testimony of his own witness that he

refused a search of his premises. This court reversed the revocation, finding the notice of

the violation constitutionally inadequate. Id. at *5.

However, this court has held that written notice of a violation is not necessary

when the defendant had actual notice of the violation on which the trial court relied. In

State v. Peck, 719 S.W.2d 553, 556 (Tenn. Crim. App. 1986), the trial court revoked the

defendant‟s probation on its own motion without a hearing. On a motion to reconsider,

the trial court conceded it had erred and granted a rehearing, during which it again

revoked probation. Id. at 557. This court held that the trial court had erred in its initial

judgment but that the initial judgment gave the defendant actual notice of the alleged

violations even though there was never written notice, and the revocation granted at the

rehearing was upheld. Id. Likewise, in Stamps v. State, this court upheld a revocation

even absent written notice when the defendant was advised at one hearing that her

conduct was a violation of probation and the hearing was continued for several months to

allow her an opportunity to cease the conduct. Stamps v. State, 614 S.W.2d 71, 73-74

(Tenn. Crim. App. 1980). Other cases have held that actual notice of the alleged

violation is sufficient for due process. State v. Bobby Wells, Jr., No. E2000-01496-CCA-

R3-CD, 2001 WL 725305, at *8 (Tenn. Crim. App. June 28, 2001) (finding adequate

notice when the petition cited only a failure to report but the court had previously

informed the defendant that it intended to rely on new convictions in considering

revocation); State v. James C. Wolford, No. 03C01-9708-CR-00319, 1999 WL 76447, at

*6-7 (Tenn. Crim. App. Feb. 18, 1999) (concluding that the trial court‟s action in orally

informing the defendant of the reasons for the revocation proceeding prior to the hearing

provided adequate notice); State v. Clifford W. Jackson, No. 02C01-9802-CR-00041,

1999 WL 615742, at *4 (Tenn. Crim. App. Aug. 13, 1999) (concluding that due process

was satisfied where the record showed an absence of a warrant but also demonstrated that

the defendant was aware that a hearing had been scheduled and that the subject would be

the alleged violations). Due process is flexible and “calls for such procedural protections

as the particular situation demands.” Stamps, 614 S.W.2d at 73 (quoting Morrissey, 408

U.S. at 481).

We conclude that the defendant had actual notice that the trial court would be

considering the particular term involved in the violation and that this notice was

sufficient to comport with due process. In describing the conduct at issue, the warrant

itself alleged that the defendant had “engaged in attempts to solicit investors for the

Circle G Ranch / Elvis Presley Tribute.” Furthermore, when the defendant‟s probation

supervisor testified, the prosecution asked whether the second warrant was related to the

violation of a term of his probation, specifically, the term prohibiting “selling investment

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products of some sort.” This occurred at the second hearing, approximately one month

before the final hearing at which the defendant himself testified. We conclude that

although the warrant specified a violation of the term that the defendant was not to

“work” in the “financial services industry,” the defendant was on actual notice, at least by

the second hearing, that the violation instead concerned “selling investment products.”

The defendant on two occasions conceded this violation. “[W]e conclude that the

appellant was not prejudiced, misled, or surprised by the court‟s failure to issue written

notice.” James C. Wolford, 1999 WL 76447, at *7. We determine that the lack of

written notice did not violate the defendant‟s due process rights. See Christopher Lynch,

2002 WL 554462, at *3-5 (concluding that the defendant had actual though not written

notice of the violation which his counsel conceded, and that this concession was a

sufficient basis for revocation).

C. Written Order

The record does not contain a written order, only the minutes of the court

determining that “upon the evidence introduced and due consideration, said warrant is by

the court sustained.” Generally, the trial court‟s failure to enter a written order detailing

the reasons for the revocation is error. State v. Conner, 919 S.W.2d 48, 49 n.3 (Tenn.

Crim. App. 1995). The defendant is entitled to “a written statement by the factfinders as

to the evidence relied on and reasons for revoking parole.” State v. Leiderman, 86

S.W.3d 584, 590 (Tenn. Crim. App. 2002) (quoting Morrissey, 408 U.S. at 489).

However, the trial court‟s failure to make specific written findings related to a probation

revocation does not necessarily warrant reversal, because when “the transcript

demonstrates the trial court provided adequate findings at the conclusion of the probation

revocation hearing showing both the grounds for the revocation and reasons for the

court‟s findings, the due process requirement of a „written statement‟ is satisfied.”

Leiderman, 86 S.W.3d at 591. Although this court has held that a general finding that the

defendant “violated the conditions of his probation” is not adequate and “a more specific

enumeration” is “preferable,” we have also held such a deficiency harmless where the

court also made a more specific finding, for instance, that the defendant violated the laws

of the state. See, e.g., State v. Norman B. Thompson, No. E2000-01017-CCA-R3-PC,

2001 WL 298633, at *2 (Tenn. Crim. App. Mar. 28, 2001) (citing cases).

We agree with the defendant that the trial court‟s statements during the hearing

were not adequate to support the conclusion that he violated the term of his probation

requiring him to perform community service with Fifty Forward. While the trial court

noted that it would reassign the defendant to general community service to avoid the

danger of him preying on retirees through Fifty Forward, it made no specific finding that

the defendant had been terminated from the program or that the termination was due to

his lack of cooperation. The trial court did, however, make oral findings regarding the

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sale of an investment interest in Circle G. We note that it is hardly surprising that the

trial court‟s findings were, in the defendant‟s words, “anemic,” given the defendant‟s

concession on two separate occasions that he had committed a “technical violation” of

the terms of his probation. The trial court, in finding that the defendant violated the terms

of his probation, determined that he “was fully active” in the sale of the investments and

that his emails indicated he was “ready to get back into full-blown business.” The trial

court also noted that the project involved Circle G, “the very one that he‟s on probation

for to begin with.” While the trial court‟s findings would have benefited from an

increased specificity, we conclude that these findings, given the defendant‟s concessions,

are adequate to satisfy due process.

CONCLUSION

We hold that the trial court did not abuse its discretion in revoking the defendant‟s

probation and that the defendant‟s due process rights were not violated. Accordingly, we

affirm the judgment of the trial court.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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