State of Tennessee v. Pamela Moses

05/18/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 13, 2018

STATE OF TENNESSEE v. PAMELA MOSES

Appeal from the Criminal Court for Shelby County

No. 14-06502 J. Weber McCraw, Judge

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No. W2016-01762-CCA-R3-CD

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Defendant, Pamela Moses, was placed on intensive probation following the entry

of guilty pleas to several offenses. The State filed two petitions to revoke her

probation. After a lengthy hearing, the trial court revoked Defendant’s probation

and ordered the “original judgment of conviction” into execution with additional

jail credit for time served in confinement. Defendant argues on appeal that the trial

court improperly revoked probation. For the following reasons, we affirm the

judgment of the trial court.

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

Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and ALAN E. GLENN JJ., joined.

James Thomas (at hearing) and Matthew C. Culotta (on appeal), Memphis,

Tennessee, for the appellant, Pamela Jeanine Moses.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson,

Assistant Attorney General; Amy P. Weirich, District Attorney General; and

Jennifer Nichols and Gavin Smith, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

On April 29, 2015, Defendant entered guilty pleas to theft of merchandise

valued at less than $500, tampering with or fabricating evidence, forgery, perjury

on an official document, stalking of a judge, and escape from misdemeanor

incarceration. See State v. Pamela Moses, No. W2015-01240-CCA-R3-CD, 2016

WL 4706707, at *2 (Tenn. Crim. App. Sept. 6, 2016), perm. app. denied (Tenn.

Jan. 23, 2017). Defendant’s charges stemmed from several different events,

including swapping tags on items at a department store; fabricating a complaint

form to the Tennessee Board of Judicial Conduct against the general sessions judge

who had held Defendant in contempt; giving false statements under oath to an

agent of the Tennessee Bureau of Investigation (“TBI”); repeatedly contacting the

judge both in person and on social media; and jumping out of a police car after

having been arrested. In exchange for the guilty pleas, Defendant received an

effective sentence of seven years to be served on supervised probation. Id. at *4.

Defendant filed a motion to withdraw the guilty pleas. The trial court denied

the motion, and this Court affirmed that decision on appeal, remanding the matter

to the trial court for correction of clerical errors. Id. at *13-14.

On December 21, 2015, the State filed a petition to revoke Defendant’s

probation. The petition alleged that Defendant violated several rules of her

probation. Specifically, the petition alleged the following:

Rule #6 states, “I will allow my probation officer to visit my home,

employment site, or elsewhere, will carry out all instructions he or she

gives; will report to my probation officer as instructed; will comply

with mandates of the Administrative Case Review Committee, if the

use of that process is approved by the Court, will comply with a

referral to Resource Center Programs, if available, by attending; and

will submit to electronic monitoring and community service, if

required.”

Rule #10 states, “I will observe any special conditions imposed by the

Court as listed below:

First 2 years of probation are intensive

Must complete & continue mental evaluation and all

recommendations

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Absolutely no contact with all victims and witnesses,

specifically Judge Phyllis Gardner, Virginia Bozeman,

Marline Iverson, & Ryan Fletcher.”

An affidavit and accompanying warrant were filed on December 21, 2015. The

warrant specified that there was “no bond to be set on this warrant.”

On January 13, 2016, the trial judge entered an order setting Defendant’s

bond at $100,000. The State filed a second petition to revoke probation on January

15, 2016, adding a violation of Rule #14: “[Defendant] will not engage in any

assaultive, abusive, threatening, or intimidating behavior. Nor will [Defendant]

participate in any criminal street gang related activities as defined by TCA 40-35-

121. [Defendant] will not behave in a manner that poses a threat to others or

[herself].” On January 25, 2016, the State filed an amended petition to revoke

Defendant’s probation, recounting the preceding three alleged violations of Rules

#6, #10, and #14. That same day, the trial court entered an order revoking

Defendant’s bond, “with no bond set.”

The trial court held a lengthy hearing on the petition. At the hearing,

Defendant’s probation officer, Brillisha Chapman, explained that Defendant was

required to meet with her on the first three Thursdays of every month. Defendant

was also required to comply with additional conditions of probation, including

refraining from criminal behavior, receiving mental health treatment, and speaking

to a forensic social worker.

According to Officer Chapman, Defendant failed to comply with the

conditions of her probation. She missed five of her appointments with her

probation officer. Even though Defendant provided reasons for the failure to

report, Officer Chapman explained that she routinely filed violation petitions for

probationers who missed more than two appointments.

Rochelle Reyle, an employee with Alliance Healthcare Services, explained

that Defendant was discharged for noncompliance in scheduling and failure to keep

routine appointments. Additionally, Defendant refused treatment after her initial

psychiatric evaluation and did not consent to medication as recommended. Officer

Chapman also used these reasons on Defendant’s petition to revoke probation.

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The trial court also heard testimony from several members of the Shelby

County Sheriff’s Office. Apparently, because of Defendant’s past behavior, there

was a policy in place that Defendant was not allowed to enter a county courthouse

without an escort. It is unclear where this policy originated, because it does not

appear as a condition of Defendant’s probation and no written policy of the

Sheriff’s Department was introduced at the hearing. Lieutenant Kathy Crowder

recalled an incident on December 5, 2015, when Defendant tried to enter the

courthouse where Judge Gardner was holding court. Defendant attempted to enter

the courthouse without an escort. Deputy Louis Hamlet was called to escort

Defendant. When he arrived, Defendant left the courthouse. Approximately thirty

minutes later, Defendant tried to utilize another entrance to enter the courthouse

without an escort. Sergeant Chad Cunningham testified that Defendant had

previously entered the courthouse where Judge Gardner held court. There was also

testimony that Defendant had attempted to enter the juvenile court building without

an escort.

Defendant did not testify at the hearing on the probation revocation. She

presented the testimony of John Paul Anders, who testified that he was a pro se

litigant and was going to the law library one day when Defendant was standing in

the lobby of the courthouse “waiting on an expert to take her to the law library.”

After waiting for some time, a female officer came to take Defendant to the law

library. Mr. Anders described the officer’s behavior while escorting Defendant,

recalling that the officer stopped several times to talk to people and was “not being

courteous.”

At the conclusion of the hearing, the trial court determined that Defendant

failed to report to her probation officer on numerous occasions, failed to abide by

“reasonable lawful commands and requests” of law enforcement personnel while

Defendant was present in the courthouse, and failed to make a “good-faith attempt

to follow the mental health aspect of [her] probation.” The trial court expressed

the desire to resolve the mental health aspect of the case and commented that

before Defendant could go “back [to] supervised” probation, the “mental health

issue” needed to be “resolved.” The trial court noted that Defendant had “been in

jail 31 days,” questioned “how long it would take to get her properly assessed,”

and ordered Defendant to “continue with this shock incarceration until the mental

health aspect is on track,” after which the trial court would “reinstate [Defendant]

to supervision with the expectation that there will be no further problems.” The

trial court went on to say that he planned to “reinstate [Defendant] based on a

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meaningful [mental health] assessment and a plan for her to follow” and that the

process should be “expedited, . . . [to occur] within a week.” The court took a

recess during which “calls were made to make certain [Defendant] could get an

appointment.” The trial court informed Defendant that an appointment for the

assessment had been made for Thursday, March 3rd at 3:45 p.m. The trial court

told Defendant that the “suspended sentence” was revoked, and added “[i]f you go

and if you cooperate and if there is a meaningful assessment, then there will be

another order signed on Friday and you’ll be released.” The trial court recalled

that the “agreement was two years intensive probation.” The trial court explained

that the probation was “not extend[ed] for an additional two years . . . but will still

remain the two years from the entry of the plea bargain.” The trial court entered a

form order finding that Defendant “violated the terms and conditions of the

suspension of sentence heretofore granted, and that the original judgment of

conviction should be executed upon the defendant.” Handwritten on the form are

the words “[a]dditional jail credit 1-25-16 to 2-25-16.” The order goes on to

specify:

1. That the suspension of sentence heretofore granted to the above

named defendant be and the same is hereby REVOKED;

2. That the original judgment of conviction, as spread upon the

minutes of this Court and herein incorporated in full by reference, be,

and the same is hereby, executed upon the defendant;

3. That the cost of this proceeding be, and the same are hereby, taxed

to the defendant; AND

4. That the place of confinement for the remainder of this sentence is

Ordered to be: THE SHELBY COUNTY CORRECTION CENTER.

DO NOT RELEASE ON DETERMINATE RELEASE

PROBATION. THE COURT REVOKED THE DEFENDANT’S

PROBATION!

Defendant filed an untimely notice of appeal and a pro se motion asking this

Court to permit the late-filing of the notice of appeal. In the motion, Defendant

admitted that she was represented by counsel at the hearing on the revocation but

that she was unsure whether counsel continued to represent her at the time she filed

the motion. This Court ordered counsel to file a response. Trial counsel complied.

In the response from trial counsel, trial counsel indicated that the trial court signed

an order on March 4, 2016, returning Defendant to probation on the “identical

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requirements and restrictions of her initial probation order” with credit for the ten

months previously completed. Trial counsel asserted uncertainty as to “what

provisions of the trial court’s ruling [Defendant sought to] review.” Attached to

this response, counsel included the trial court’s March 4, 2016 order returning

Defendant to probation. This Court granted a motion to late-file the notice of

appeal. After this case was docketed and assigned to a panel of this Court, we

realized that Defendant’s April 29, 2015 probation order and the trial court’s

March 4, 2016 order reinstating Defendant to probation did not appear in the

technical record transmitted to this Court on appeal. We ordered the trial court to

supplement the record with these documents in order to facilitate our review of the

issues presented on appeal.

Analysis

On appeal, Defendant complains that the trial court erred in revoking her

suspended sentence. Specifically, Defendant insists that the proof “contradicts”

the trial court’s ruling because there was no evidence introduced to show that

Defendant violated the terms of her probation by contacting the victims/witnesses,

failed to keep in touch with her probation officer, or was discharged from mental

health treatment. The State disagrees.

At the outset, we express our sincere perplexity regarding the exact nature of

Defendant’s argument. Defendant, who was arrested for a violation of probation,

and was found to be in violation of the terms and conditions of her probation, was

placed back on probation by the trial judge after a hearing—with credit for time

already served on probation. The trial court did not extend the term of her

probation or cause her to be subject to additional requirements or restrictions.

Essentially, the trial court found that Defendant violated the terms of probation and

placed her in exactly the same position that she was in prior to the violation. It

would appear that Defendant got a pass on violating her probation. Defendant’s

brief to this Court on appeal does little to resolve our confusion. Defendant’s

argument section concludes with the following incomplete statement: “It was an

abuse of discretion for the trial court to have concluded that the allegations in the

State’s petition were proven by a preponderance of the evidence because.” We

interpret Defendant’s argument on appeal to be a challenge to the trial court’s

ultimate finding that she violated the terms and conditions of her probation rather

than a complaint that the trial court returned Defendant to probation.

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When a trial court finds by a preponderance of the evidence that a defendant

has violated the conditions of probation, the court “shall have the right . . . to

revoke the probation.” T.C.A. § 40-35-311(e)(1). After revoking a defendant’s

probation, the trial court is authorized to order a defendant to serve the balance of

his original sentence in confinement, return a defendant to probation with modified

conditions as necessary, or extend the period of probation by no more than two

years. T.C.A. §§ 40-35-308, -310. The revocation of probation rests in the sound

discretion of the trial court and will not be overturned by this Court absent an

abuse of that discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v.

Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); see also State v. Pollard,

432 S.W.3d 851, 864 (Tenn. 2013) (holding that an abuse of discretion standard

with a presumption of reasonableness applies to all sentencing decisions). An

abuse of discretion occurs when the “record contains no substantial evidence to

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

probation has occurred.” State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App.

1980); see also State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001).

In this case, there is substantial evidence in the record to support the trial

court’s finding that Defendant violated the terms of her probation. Defendant was

required to report to her probation officer on the first three Thursdays of each

month. Officer Chapman testified that Defendant missed five of her appointments.

In our view, it is irrelevant that Defendant continued to keep in contact with

Officer Chapman to provide excuses for missed appointments. The terms and

conditions of Defendant’s probation required her to report the first three Thursdays

of each month. Defendant failed to do so. This violation alone is enough to

support the revocation. The State argues that the additional proof at the hearing

that Defendant attempted to enter the courthouse without an escort at a time when

Judge Gardner was holding court and that Defendant was discharged from mental

health treatment were also violations of probation.

With respect to the allegation that Defendant failed to complete mental

health treatment as required, a representative from Alliance Health testified that

Defendant’s file indicated Defendant was discharged from the program for

“noncompliance in scheduling and keeping appointments.” Defendant argues that

the proof is not clear whether Defendant was actually discharged from the program

or whether Defendant rescheduled her appointments. However, Defendant failed

to present any proof to contradict that of the Alliance Health representative who

presented a discharge order listing the reason for the discharge as

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“noncompliance.” Thus, we determine that there was evidence to support the trial

court’s conclusion that Defendant violated this condition of her probation.

With respect to the allegation that Defendant entered the courthouse without

an escort, we are unable to locate a specific condition of probation requiring

Defendant to have an escort while in the courthouse. The conditions of

Defendant’s probation prohibit her from “contact with all victims and witnesses,

specifically Judge Phyllis Gardner.” There is no condition that requires Defendant

to be escorted while in a courthouse. In fact, the testimony of the officers

confirmed this fact as they could not point to a written policy or order from a

superior officer to substantiate the requirement of an escort. Thus, the trial court’s

reliance on this activity as a violation of the condition of Defendant’s probation

was error. However, we determine that the error was harmless because there was

evidence that Defendant violated at least one condition of probation. See State v.

Phillip Thomas Wilcox, No. M2002-00667-CCA-R3-CD, 2003 WL 21047133, at

*2 (Tenn. Crim. App. May 9, 2003) (holding that “[t]here need be only one

violation of the conditions of . . . probation to support revocation”), perm. app.

denied (Tenn. Oct. 13, 2003).

Further, the trial court did not abuse its discretion in ordering Defendant to

return to probation. Defendant was not even “‘entitled to a second grant of

probation or another form of alternative sentencing.’” State v. Casey Dupra

Drennon, No. M2014-02366-CCA-R3-CD, 2015 WL 6437212, at *2 (Tenn. Crim.

App. Oct. 23, 2015) (quoting State v. Jeffrey A. Warfield, No. 01C01-9711-CC-

00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999), perm. app.

denied (Tenn. Jun. 28, 1999)), no perm. app. filed; see also State v. Timothy A.

Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim.

App. Feb. 11, 2002), no perm. app. filed. The trial court considered the testimony,

concluded that Defendant violated the terms of her probated sentence, and acted

well within its authority by initially revoking probation and ultimately ordering the

original judgment into execution, returning Defendant to probation. Defendant is

not entitled to relief.

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TIMOTHY L. EASTER, JUDGE

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