                                                                                                         08/14/2018
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                      January 3, 2018 Session

STATE OF TENNESSEE v. A.B. PRICE, JR. and VICTOR TYRONE SIMS1

                      Appeal from the Circuit Court for Henry County
                           No. 15680 Donald E. Parish, Judge
                           ________________________________

                                 No. W2017-00677-CCA-R3-CD
                           ________________________________

This consolidated appeal comes to us following the passage of the Public Safety Act (“the
PSA”), which, as relevant here, see Tenn. Code Ann. §§ 40-28-301,-306, changed how
non-criminal or “technical” violations of probation are handled in Tennessee. These
provisions require the Tennessee Department of Probation and Parole (“the department”)
to develop, among other things, a single system of graduated sanctions for technical
violations of community supervision and an administrative review process for objections
by the probationer to imposition of such sanctions. Prior to accepting the Defendants’
guilty pleas, the trial court expressed concern regarding the implementation of the PSA,
as these consolidated cases were the first in its district to which the graduated sanctions
of the PSA would apply. The Defendants then objected to the imposition of the PSA as a
mandatory condition of their probation and “request[ed] that the Court find certain of the
provisions of T.C.A. § 40-28-301 through § 40-28-306, relative to sentences of probation,
to be facially unconstitutional, and, therefore, decline to incorporate them within the
judgment.” Specifically at issue are the provisions (1) mandating trial courts to include
as a condition of probation that the department supervising the individual may impose
graduated sanctions for violations of probation; and (2) the extent to which the
department’s administrative process to review graduated sanctions contested by
supervised individuals complies with principles of due process. After a hearing, the trial
court issued an extensive order finding these sections of the PSA violated the separation
of powers doctrine and principles of due process and equal protection.2 It is from this
order that the State appeals. For the reasons that follow, we affirm the judgments of the
trial court.


        1
          By this court’s order, entered on January 25, 2018, these cases were consolidated for purposes of
this appeal.
         2
           The Defendants also challenged the relevant portions of the PSA as being vague; however, the
trial court determined that that the PSA was not vague. Accordingly, this issue was not raised on appeal.


                                                    1
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court. THOMAS T. WOODALL,
P.J., joined, and filed a separate concurring opinion. ALAN E. GLENN, J., filed a
dissenting opinion.

Herbert H. Slatery III, Attorney General and Reporter; Jennifer L. Smith, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Paul Hessing,
Assistant District Attorney General, for the appellant, State of Tennessee.

Robert Hawley, Paris, Tennessee, for the appellee, A.B. Price, Jr.

J. Neil Thompson, Huntingdon, Tennessee, for the appellee, Victor Tyrone Sims.

                                           OPINION

        There is no dispute as to the facts or circumstances that give rise to this appeal.
The record shows that when the Defendants initially attempted to enter their guilty pleas,
the trial court refused to accept their negotiated plea agreements and “expressed
reservations” as to whether the court could accept them because they would be subject to
the PSA. The trial court urged the parties to “consider those matters closely” and reset
the cases a few weeks for a hearing to be “educated more on those concepts, and . . .
create a record on which to make a decision moving forward, realizing that the decisions
to be made in these two (2) cases impact not only these two (2) cases, but . . . across the
district, and, in fact, the state.”3 At the February 10, 2017 hearing, Lisa Wade, a
probation officer, testified generally regarding the procedure under the PSA and provided
the trial court with probation statistics and various exhibits including the graduated
sanctions matrix. The parties also presented extensive arguments on the constitutionality
of the PSA, and the trial court took the matter under advisement. On February 16, 2017,
the trial court issued its detailed order declaring the relevant portions of the PSA
unconstitutional. On March 31, 2017, Price entered a plea of guilty to two counts of
sexual battery and an effective sentence of ten years, to be served on supervised
probation but not subject to the PSA. On the same day, Sims entered a plea of guilty to
three counts of aggravated assault and an effective sentence of eight years, to be served
on supervised probation but not subject to the PSA, and following service of one year
incarceration.

       To the extent that there are any findings of fact determined by the trial court, they
are likewise not disputed by the parties. Our attention is therefore devoted to examining
the provisions of the PSA that were struck down by the trial court as unconstitutional.

3
  We do not have a transcript of the preliminary hearings on this matter; however, the trial court
references the development of the case in its opening comments to the February 10 hearing.

                                                2
On April 27, 2016, the governor signed into law a bill designated by the legislature as the
Public Safety Act of 2016 (“the PSA”). At issue in this appeal are the provisions within
Title 40, Chapter 28, which mandated the trial court’s grant of probation to be contingent
upon a newly created system of graduated sanctions for all non-criminal violations of a
sentence involving release into the community. Under this system, the violations are
subject to an administrative rather than judicial review process. See 2016 Pub. Acts, c.
906. Each provision is outlined in detail below:

       To begin, the PSA defines a graduated sanction to include “any of a wide range of
non-prison offender accountability measures and programs, including, but not limited to,
electronic supervision tools; drug and alcohol testing or monitoring; day or evening
reporting centers; rehabilitative interventions such as substance abuse or mental health
treatment; reporting requirements to probation and parole officers; community service or
work crews; and residential treatment facilities. Tenn. Code Ann. § 40-28-301.

       Pursuant to Tennessee Code Annotated Section 40-28-302, all supervised
individuals shall be subject to:

       (1) Violation revocation proceedings and possible incarceration for failure
       to comply with the conditions of supervision when such failure constitutes
       a significant risk to prior victims of the supervised individual or the
       community at large and cannot be appropriately managed in the
       community; or

       (2) Sanctions other than revocation as appropriate to the severity of the
       violation behavior, the risk of future criminal behavior by the offender, and
       the need for, and availability of, interventions which may assist the
       offender to remain compliant and crime-free in the community.

Tenn. Code Ann. § 40-28-302. Tennessee Code Annotated section 40-28-303, entitled
system of graduated sanctions, provides as follows:

       (a) The department shall adopt a single system of graduated sanctions for
       violations of the conditions of community supervision. The system shall
       set forth a menu of presumptive sanctions for the most common types of
       supervision violations, including, but not limited to: failure to report; failure
       to pay fines and fees; failure to participate in a required program or service;
       failure to complete community service; and failure to refrain from the use
       of alcohol or controlled substances. The system of sanctions shall take into
       account factors such as the severity of the current violation, the supervised
       individual’s previous criminal record, the number and severity of any
       previous supervision violations, the supervised individual’s assessed risk


                                              3
      level, and the extent to which graduated sanctions were imposed for
      previous violations. The system shall also define positive reinforcements
      that supervised individuals will receive for compliance with conditions of
      supervision. The system shall clearly specify as to each type of sanction
      whether the supervised individual has the option to object and seek
      administrative review of the sanction.

      (b) The department shall establish by policy an administrative process to
      review and approve or reject, prior to imposition, graduated sanctions that
      deviate from those prescribed.

      (c) The department shall establish by policy an administrative process to
      review graduated sanctions contested by supervised individuals under § 40-
      28-305. The review shall be conducted by the chief supervision officer,
      who shall be impartial and trained to hear cases regarding graduated
      sanctions for violations of supervision conditions.

      (d) The department shall establish and maintain a program of initial and
      ongoing training regarding the system of graduated sanctions for probation
      and parole officers.

Tenn. Code Ann. § 40-28-303. Tennessee Code Annotated section 40-28-304, entitled
conditions of community supervision, further states:

      For individuals placed on supervised probation, the judge of the court
      having jurisdiction over the case shall determine the conditions of
      community supervision, which shall include as a condition that the
      department supervising the individual may, in accordance with § 40-28-
      305, impose graduated sanctions adopted by the department for violations
      of the conditions of community supervision.

Tennessee Code Annotated section 40-28-305, entitled authority to impose graduated
sanctions, states:

      (a) Notwithstanding any rule or law to the contrary, the department may
      impose graduated sanctions.

      (b) A probation and parole officer intending to impose a graduated sanction
      shall issue to the supervised individual a notice of the intended sanction.
      The notice shall inform the supervised individual of the violation or
      violations alleged, the date or dates of the violation or violations, and the
      graduated sanction to be imposed.


                                           4
      (c) The imposition of a graduated sanction or sanctions by a probation and
      parole officer must comport with the system of graduated sanctions adopted
      by the department under § 40-28-303. Upon receipt of the notice, the
      supervised individual shall immediately accept the sanction or, if permitted
      under the system of graduated sanctions, object to the sanction or sanctions
      proposed by the probation and parole officer. The failure of the supervised
      individual to comply with a sanction shall constitute a violation of
      probation, parole, or post-release supervision. If the supervised individual
      objects to the imposition of the sanction or sanctions, when permitted by
      the system of graduated sanctions, the individual is entitled to an
      administrative review to be conducted by the department within five (5)
      days of the issuance of the notice. If the department affirms the
      recommendation contained in the notice, the sanction or sanctions shall
      become effective immediately.

      (d)(1) A notice of a graduated sanction may not be issued for any violation
      of probation or parole that could warrant an additional, separate felony
      charge or Class A misdemeanor charge.
      (2) Notwithstanding subdivision (d)(1), a notice of a graduated sanction
      may be issued for a positive drug test.

      (e) Upon successful completion of a graduated sanction or sanctions, a
      court shall not revoke the term of community supervision or impose
      additional sanctions for the same violation.         Notwithstanding this
      subsection (e), a court may consider an individual’s supervision and
      sanctions history when adjudicating subsequent violations.

      (f) The department shall regularly provide notice of sanctions imposed
      upon probationers to the sentencing court and the prosecutor’s office for
      each jurisdiction.

      (g) If a probation and parole officer imposes a graduated sanction, the
      officer shall:
             (1) Deliver a copy of the sanction to the supervised
             individual; and
             (2) Note the date of delivery of the copy in the supervised
             individual’s file.

Tennessee Code Annotated section 40-28-306, entitled monitoring graduated sanctions,
states:



                                           5
       The chief supervision officer shall review confinement sanctions
       recommended by probation and parole officers on a quarterly basis to
       assess any disparities that may exist among officers, evaluate the
       effectiveness of the sanction as measured by the supervised individuals’
       subsequent conduct, and monitor the impact on the department’s number
       and type of revocations for violations of the conditions of supervision.

Tenn. Code Ann. § 40-28-306.

                                       ANALYSIS

        Jurisdiction. As in any case, the threshold question presented is whether this
court has jurisdiction. Although the State frames the issue in this appeal as the trial
court’s imposition of a special condition in contravention of State law, in reality, the
Defendants objected to the inclusion of the provisions of the Public Safety Act as part of
their probation. As we see it, the issue, properly framed, concerns the trial court’s refusal
to impose the graduated sanctions matrix as a condition of probation pursuant to the PSA.
The State assumes jurisdiction of this appeal based generally on Tennessee Code
Annotated Section 40-35-402 (2014) (“The district attorney general in a criminal case
may appeal from the length, range or manner of the service of the sentence imposed by
the sentencing court.”). We agree that appellate jurisdiction has been conveyed, albeit on
explicit grounds. Section 40-35-402(b) provides for a State appeal of a sentence limited
only to the following grounds:

       (1)    The court improperly sentenced the defendant to the wrong
              sentence range;
       (2)    The court granted all or part of the sentence on probation;
       (3)    The court ordered all or part of the sentences to run concurrently;
       (4)    The court improperly found the defendant to be an especially
              mitigated offender;
       (5)    The court failed to impose the fines recommended by the jury;
       (6)    The court failed to order the defendant to make reasonable
              restitution; or
       (7)    The sentence is inconsistent with the purposes or considerations
              of sentencing set out in §§ 40-35-102 and 40-35-103.

Tenn. Code Ann. § 40-35-402. As mentioned above, the issue properly framed is the trial
court’s refusal to impose certain conditions of probation to the Defendants cases. We
therefore derive jurisdiction from subsection (b)(7) and review this issue to assure fair
and consistent treatment of all defendants by eliminating unjustified disparity in
sentencing and providing a fair sense of predictability of the criminal law and its
sanctions.


                                             6
        Standard of Review. This appeal involves questions of law only. Therefore, our
review is de novo with no presumption of correctness to the trial court’s legal
conclusions. See Hughes v. Tennessee Bd. of Prob. & Parole, 514 S.W.3d 707, 712
(Tenn. 2017) (citing Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) and Colonial
Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008)). “We are charged with
upholding the constitutionality of statutes where possible, State v. Pickett, 211 S.W.3d
696, 700 (Tenn. 2007), and we always begin with the presumption that an act of the
General Assembly is constitutional.” Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn.
2003) (citing State v. Robinson, 29 S.W.3d 476, 479 (Tenn. 2000); Riggs v. Burson, 941
S.W.2d 44, 51 (Tenn. 1997)); Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn.
2006) (citing Osborn v. Marr, 127 S.W.3d 737, 740-41 (Tenn. 2004)). We must construe
statutes in a way that “sustain[s] the statute and avoid[s] constitutional conflict if at all
possible, and . . . indulge every presumption and . . . resolve every doubt in favor of the
statute’s constitutionality.” Howell v. State, 151 S.W.3d 450, 470 (Tenn. 2004) (citing
Taylor, 70 S.W.3d at 721). The presumption of constitutionality applies with even
greater force when, as present here, a party brings a facial challenge to the validity of a
statute. Waters v. Farr, 291 S.W.3d at 882. In such an instance, the challenger must
establish that no set of circumstances exists under which the statute, as written, would be
valid. Id. (citing Lynch v. City of Jellico, 205 S.W.3d at 390) (quoting Davis-Kidd
Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 525 (Tenn. 1993)).                     Thus,
notwithstanding the determination of the trial court, the Defendants in this appeal have a
heavy burden in challenging the constitutionality of the statute.

        Justiciability. The State, for the first time on appeal, insists that “the Defendant’s
challenge to the graduated sanctions provisions of the PSA should have been rejected [by
the trial court] as unripe and non-justiciable[.]” Because the Defendants have not
violated a condition of probation, and no sanction has been or may ever be imposed if
they remain compliant, the State argues that the trial court’s decision was premature and
in error. Construing the Defendants’ constitutional challenge as to the facial validity of
the PSA rather than to how the law is applied to each Defendant, the Defendants contend
that the trial court properly determined that these issues were ripe and justiciable. Much
to our bewilderment, Defendant Sims completely abandons his challenge to the
constitutionality of the PSA. Defendant Sims nevertheless confusingly insists this issue
is ripe and justiciable to determine whether a defendant enters a knowing and voluntary
guilty plea. State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003) (“a guilty plea is not
deemed voluntary where the person entering it does so without understanding of the
consequences of his plea”) (internal citations/quotations omitted).

       As an initial matter, during the trial court proceedings, the State agreed that this
issue was ripe and justiciable for the trial court’s review. The State changed their
position on appeal, and at oral argument, defense counsel for Price argued that this issue
was waived. See State v. Adkisson, 899 S.W.2d 626, 635-36 (Tenn. Crim. App. 1994)


                                              7
(“’It is elementary that a party may not take one position regarding an issue in the trial
court, change his strategy or position in mid-stream, and advocate a different ground or
reason in this Court.’”) (quoting State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim.
App. 1988)). The State acknowledged in their brief that justiciability was conceded
below but insists on appeal that justiciability cannot be waived because it pertains to
subject matter jurisdiction. Moreover, the State emphasizes that the Defendants failed to
file any written challenges to the statute or to notify the Attorney General and Reporter as
required by Tennessee Code Annotated section 8-6-109(b)(9).                    Under these
circumstances, we agree with the State, and conclude that this issue cannot be waived.

        “The central concern of the ripeness doctrine is whether the case involves
uncertain or contingent future events that may or may not occur as anticipated or, indeed,
may not occur at all.” B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318
S.W.3d 839, 848 (Tenn. 2010) (citing Lewis v. Cont’l Bank Corp., 494 U.S. 472, 479-80
(1990)). In West v. Schofield, 468 S.W.3d 482, 489-90 (Tenn. 2015) (West II), the
Tennessee Supreme Court reaffirmed that ripeness inquiries “require[] a court to answer
the question of ‘whether the dispute has matured to the point that it warrants a judicial
decision.’” Id. (quoting B & B Enters., 318 S.W.3d at 848). In determining whether a
particular case is ripe, courts typically engage in a two-part analysis, evaluating “[1] the
fitness of the issues for judicial decision and [2] the hardship to the parties of withholding
court consideration.” Id. at 490-91 (citing Abbott Labs., 387 U.S. at 149); see also B & B
Enters., 318 S.W.3d at 848; Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008)
(en banc) (describing the two-part inquiry as: “(1) [I]s the claim fit for judicial decision
in the sense that it arises in a concrete factual context and concerns a dispute that is likely
to come to pass? [A]nd, (2) what is the hardship to the parties of withholding court
consideration?” (citations and internal quotation marks omitted)).

       In determining that the Defendants had constitutional standing, the trial court’s
order provided, in pertinent part, as follows:

              The Court has conducted the two-part analysis from [West v.
       Schofield, 468 S.W.3d 482, 490-491] and [Clark v. Cain, 479 S.W.3d 830,
       832(Tenn. 2015)] and finds that the cases at bar meet both requirements of
       the ripeness test. Id. These are real cases in which a significant question
       exists as to whether the determination of probation violation matters is
       exclusively to be made by the judiciary or may be delegated to the
       executive branch. The constitutional separation of powers question exists
       now, as it has at every moment on or after January 1, 2017. The Act
       requires, in felony criminal cases involving a sentence of supervised
       probation, including the two at bar, that the judge insert a provision within
       a judgment which transfers the authority to decide common probation
       violation issues to the executive branch. T.C.A. §40-28-304. The resulting


                                              8
       separation of powers question is not hypothetical nor does it depend upon
       [the Defendant’s] being accused of a violation. The question was ripe and
       fit for resolution the moment an actual person became subject to that
       provision of the Act.

               The constitutional due process issue and equal protection issue is
       also now ripe and fit for decision. As earlier stated, the Act requires the
       trial judge to immediately include a provision within a criminal judgment
       that has the plain effect, validly or not, of limiting due process rights which
       exist now but which will not be exercised until a future time. The Act
       establishes two classes of probationers with differing due process rights.

              The hardship caused to all parties from the uncertainty surrounding
       probationer status and acceptable procedure, which would be caused by
       withholding the resolution of these issues by the courts, outweighs any
       possible concern about a court prematurely deciding the questions.
       Furthermore, the issues raised are common to the many thousands of
       persons likely to be placed on probation in Tennessee on or after January 1,
       2017.

              The defendant’s constitutional challenges are to the facial validity of
       the Act rather than challenges because of how the law is particularly
       applied to [the Defendants]. See State v. Crank, 468 S.W.3d 15, 24 (Tenn.
       2015); City of Memphis v. Hargett, 414 S. W.3d 88, 103-108 (Tenn. 2013).
       Therefore, each defendant has constitutional standing. See ACLU v.
       Darnell, 195 S.W.3d 612, 619 (Tenn. 2006).

       In disputing standing on appeal, the State and the dissent rely heavily upon West
II, the second in a series of declaratory judgment actions rejected as not ripe by the
Tennessee Supreme Court. The defendants in West I originally challenged the
constitutionality of the lethal injection protocol, at that time the default method of
execution in Tennessee. See West v. Schofield, 380 S.W.3d 105 (Tenn. Ct. App. 2012),
perm. app. denied (Tenn. Aug. 17, 2012) (West I). However, as their litigation was
pending, the law in question was amended and added several subsections providing
electrocution as an alternative method of execution.4 The defendants then appealed the


       4
          The Capital Punishment Enforcement Act (“CPEA”), codified as a new subsection of an
existing statute, provided, in pertinent part, as follows:

       (e) For any person who commits an offense or has committed an offense for which the
       person is sentenced to the punishment of death, the method of carrying out the sentence
       shall be by lethal injection unless subdivision (e)(1) or (e)(2) is applicable. If subdivision

                                                     9
constitutionality of the amended section of the law and electrocution as a method of
execution. West II, 468 S.W.3d at 485-87. Under the first prong of the ripeness analysis,
fitness for judicial decision, our supreme court considered whether the defendants’
electrocution claims were based on an existing legal controversy or on hypothetical and
contingent future events that may never occur. Id. at 491. Because electrocution did not
presently apply to any of the defendants and would not ever apply unless one of two
statutory contingencies occurred at some future point, the Court determined the case was
not ripe. Id. at 492. Under the second part of the ripeness analysis, consideration of
whether withholding adjudication of the defendants’ claim would impose any meaningful
hardship on the parties, the Court concluded that the statute did not “force the
[defendants] to make any choice . . . . [it applied] if, and only if, one of two statutory
contingencies actually occurs . . . [and] does not direct the [defendants] ‘to engage in, or
to refrain from, any conduct.’” Id. (internal citations omitted).

        Far from the circumstances outlined in the statute challenged by the defendants in
West II, in the case at bar, pursuant to Code section 40-28-304, a trial court must include
as a condition for all individuals placed on supervised probation that “the department”
may impose graduated sanctions for probation violations. In other words, the trial court
is required by law to impose the system of graduated sanctions on every defendant
eligible for supervised probation in Tennessee. This is neither theoretical nor contingent
on future events. It became ripe and fit for judicial decision at the precise moment that
the trial court was required to include this condition and at the precise moment that the
Defendants became subject to this statute. See Buckley v. Valeo, 424 U.S. 1, 680 (1976)
(quoting Socialist Labor Party v. Gilligan, 406 U.S. 583, 588 (1972)) (“‘Where the
inevitability of the operation of a statute against certain individuals is patent, it is
irrelevant to the existence of a justiciable controversy that there will be a time delay
before the disputed provisions will come into effect.’”); United States v. Vaquera-Juanes,
638 F.3d 734, 736 (10th Cir. 2011) (easily rejecting the Government’s “general and
sweeping assertion that challenges to conditions of supervised release . . . are never ripe
because the conditions may never be enforced” and concluding that “[c]onditions of
supervised release form a part of the criminal judgment and thus . . . a challenge to them
involves a genuine case or controversy because the judgment is a final court order

       (e)(1) or (e)(2) is applicable, the method of carrying out the sentence shall be by
       electrocution. The alternative method of execution shall be used if:
                (1) Lethal injection is held to be unconstitutional by a court of competent
                jurisdiction in the manner described in subsection (d); or
                (2) The commissioner of correction certifies to the governor that one (1)
                or more of the ingredients essential to carrying out a sentence of death by
                lethal injection is unavailable through no fault of the department.

Tenn. Code Ann. § 40-23-114(e) (Supp. 2014).



                                                   10
binding on an incarcerated defendant at the time of his appeal); United States v. Mike,
632 F.3d 686, 692-93 (10th Cir. 2011) (“[S]upervised release terms are directly
appealable, despite the fact that they are subject to later modification, because they are
part of the sentencing court’s final orders.”); United States v. Smith, 606 F.3d 1270 (10th
Cir. 2010)(same).

        As to the second prong of the ripeness analysis, we conclude that the Defendants
will suffer a hardship if their claims are not heard because the condition of probation is
imposed by operation of law and immediately deprives them of judicial review of certain
aspects of their probation. It directly effects the day-to-day activities of probationers
because (1) they are required to comply with the sanctions grid by operation of law; (2)
their right to judicial determination of probation violations, albeit “technical,” is
transferred from the court to a probation or parole officer; and (3) there is no judicial
review of these infractions. Here, it is not a question of when or whether the Defendants
violate their probation but rather the validity of the graduated sanctions grid as a
condition of their probation. We are simply unable to distinguish the posture of this case
from the many appeals from a trial court’s imposition of special conditions of probation
which this court has reviewed immediately after probation is granted. See Tenn. Prac.
Crim. Prac. & Procedure § 32:92 fn. 10 (noting that a defendant may challenge the
validity of probation conditions in a revocation hearing or after probation is granted)
(citing Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974)); State v. Bouldin, 717 S.W.2d
584 (Tenn. 1986) (defendant challenged condition of probation immediately after
sentencing)); see also State v. Pressinell, No. E2008-01290-CCA-R3-CD, 2009 WL
321215, at *1 (Tenn. Crim. App. Feb. 10, 2009) (modifying onerous condition of
probation after sentencing). Moreover, the State’s position now, that this issue is non-
justiciable because the Defendants’ probation has yet to be violated, is contrary to the
position they have taken previously when a defendant fails to object to the trial court’s
imposition of a condition of probation at sentencing. See e.g., State v. Burdin, 924
S.W.2d 82, 84 (Tenn. 1996) (rejecting the State’s argument that the defendant waived his
constitutional claim to the imposition of a probation condition because he did not object
at the sentencing hearing). Based on this authority and analysis, we conclude, without
hesitation, that these issues are ripe and justiciable.

       Separation of Powers. We now turn to address the substance of the issues raised
in this appeal. The State argues that the trial court erred in determining that the PSA
interfered with the adjudicative function of the judicial branch of government in violation
of the separation of powers doctrine. The State contends that “the correctional and
rehabilitative processes of the parole and probation system, including the supervision of
individuals sentenced to community-based probation as an alternative to incarceration,
are properly vested in the executive branch.” Moreover, the State maintains that the
“authority to impose graduated sanctions for technical, non-criminal probation violations
in conjunction with that supervision is a legitimate and permissible component of [the]


                                            11
department’s supervisory authority.” In response, Defendant Price, without elaboration
on appeal, incorporates the trial court’s order regarding this issue. Six pages of the trial
court’s order are dedicated to the resolution of this issue. The relevant portion of the trial
court’s determination is as follows:

              The Act mandates that the sentencing judge shall include, as a
       condition in a judgment or order of supervised probation, a provision
       adopting the administrative graduated sanctions regimen. T.C.A. §40-28-
       304. This regimen, in turn allows an executive branch employee, the
       probation officer, to determine, in “the most common” instances, whether a
       violation of a probation condition has occurred. T.C.A. §40-28-303(a). If
       so, the probation officer is to impose sanctions generally from a preset or
       presumptive grid. Id. Confusingly, however, the Act also allows TDOC to
       impose “graduated sanctions that deviate from those prescribed.” T.C.A. §
       40-28-303(b). The imposition of a graduated sanction creates an instance
       of double jeopardy. T.C.A. §40-28-305(e).

              It was suggested at the evidentiary hearing held in these cases that
       the use of lower level graduated sanctions, had always been part of
       probation supervision, although informally, and that the Act, probably,
       would result in no real change. This is not accurate. The use of any
       probation sanction under prior law was at the discretion and subject to the
       review of a judge. This is not true under the Act. This is a sea change of
       constitutional import.

              Apparently, all other statutes, providing contrary to the Act, are
       repealed. T.C.A. §40-28-305(a) . . . .

               After a review of the controlling Tennessee authority regarding the
       separation of power between the legislative, executive and judicial
       branches, this Court holds that it is the exclusive constitutional role of the
       legislature to declare an act to be criminal, to fix the range of punishment
       and to say whether that sentence may be considered for probation and, if so,
       under what conditions, provided that those conditions are themselves
       constitutional. The Court further holds that the specific determination of
       whether a violation of probation condition has occurred and, if so, to
       determine an appropriate sanction is, in a constitutional sense, exclusively
       within the province of the judiciary, not the executive branch. Without
       taking any pleasure in doing so, the Court, therefore, determines that the
       Act does “frustrate or interfere with the adjudicative function . . . [of] the
       judicial branch of government.” [Mansell v. Bridgestone Firestone N. Am.
       Tire, LLC, 417 S.W.3d 393, 402 (Tenn. 2013)].


                                             12
             To hold otherwise would allow the removal of an important
      adjudicative power regarding criminal sentences from the courts and the
      placement of that power in the executive department. Taken to its logical
      conclusion, this might also mean that an executive branch employee or
      independent contractor could constitutionally decide whether a probation
      violator goes to jail as a sanction, and, if so, how long that person stays in
      jail. The Tennessee Constitution forbids the exercise of such adjudicative
      power by the executive department.

       In review of this issue, we recognize that the primary separation of powers
provisions of the Tennessee Constitution are Article II, Section 1, which states that “the
powers of the government shall be divided into three distinct departments: the
Legislative, Executive, and Judicial,” and Article II, Section 2, which states that “no
person or persons belonging to one of these departments shall exercise any of the powers
properly belonging to either of the others, except in the cases herein directed or
permitted.” The doctrine of separation of powers, as set forth in these two sections of the
Tennessee Constitution, “is a fundamental principle of American constitutional
government.” State By & Through Town of S. Carthage, Tenn. v. Barrett, 840 S.W.2d
895, 897 (Tenn. 1992) (citing Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975)).
The separation of powers clause “prohibits one branch from encroaching on the powers
or functions of the other two branches.” Colonial Pipeline Co. v. Morgan, 263 S.W.3d
827, 843 (Tenn. 2008) (citing Tenn. Const. art. II, § 2; State v. Brackett, 869 S.W.2d 936,
939 (Tenn.Crim.App.1993)). “In general, the ‘legislative power’ is the authority to make,
order, and repeal law; the ‘executive power’ is the authority to administer and enforce
law; and the ‘judicial power’ is the authority to interpret and apply law.” Colonial
Pipeline Co., 263 S.W.3d at 843, n. 8.

       Moreover, the grant of power to the judicial branch is contained in Article VI,
Section 1, of the Tennessee Constitution, which states that

      [t]he judicial power of this state shall be vested in one Supreme Court and
      in such Circuit, Chancery and other inferior Courts as the Legislature shall
      from time to time, ordain and establish; in the Judges thereof, and in
      Justices of the Peace. The Legislature may also vest such jurisdiction in
      Corporation Courts as may be deemed necessary. Courts to beholden by
      Justices of the Peace may also be established.

This section, coupled with Article II, Section 1, clearly guarantees the independence of
the judiciary. Summers v. Thompson, 764 S.W.2d 182, 196 (Tenn.1988) (Drowota, J.,
concurring). The United States Supreme Court has also held that separation of powers
prohibits courts from delegating “essential attributes of the judicial power.” United


                                            13
States v. Raddatz, 447 U.S. 667, 683 (1980) (holding delegation to magistrate judges
does not violate Article III so long as the ultimate decision is made by district court);
Crowell v. Benson, 285 U.S. 22, 51 (1932) (“essential attributes” of court may not be
delegated to another tribunal). Delegations of judicial power to non-judicial officers, a
practice commonly referred to as the non-delegation principal, is therefore barred by
Article VI, Section 1 of the Tennessee Constitution, which vests sole power for
adjudicatory functions in the Courts of the State of Tennessee.

      In State v. Mallard, 40 S.W.3d 473, 483 (Tenn. 2001), the Tennessee Supreme
Court described inherent judicial powers as:

       [T]he powers to hear facts, to decide the issues of fact made by the
       pleadings, and to decide the questions of law involved. As an essential
       corollary to these principles, any determination of what evidence is
       relevant, either logically or legally, to a fact at issue in litigation is a power
       that is entrusted solely to the care and exercise of the judiciary. Indeed, a
       court’s constitutional function to independently decide controversies is
       impaired if it must depend on, or is limited by, another branch of
       government in determining and evaluating the facts of the controversies it
       must adjudicate. Consequently, any legislative enactment that purports to
       remove the discretion of a trial judge in making determinations of logical or
       legal relevancy impairs the independent operation of the judicial branch of
       government, and no such measure can be permitted to stand.

Id. (internal citations and quotations omitted).

      More recently, in State v. Lowe, No. M2014-00472-SC-R11-CD, --- S.W.3d ---,
2018 WL 3491044 (Tenn. 2018), the Tennessee Supreme Court, echoed the dictates of
Mallard, and emphasized that:

       [T]he consent of the courts to legislative regulation of inherent judicial
       authority is purely out of considerations of inter-branch comity and is not
       required by any principle of free government. To hold otherwise would be
       to irreparably damage the division of governmental power so essential to
       the proper maintenance of our constitutional republic. As the Court of
       Appeals has stated,

       In deference to separation of powers, judges will lean over backward to
       avoid encroaching on the legislative branch’s (power).

       However, the separation of powers doctrine, properly understood, imposes
       on the judicial branch not merely a Negative duty not to interfere with the


                                              14
       executive or legislative branches, but a Positive responsibility to perform its
       own job efficiently. This Positive aspect of separation of powers imposes
       on courts affirmative obligations to assert and fully exercise their powers,
       to operate efficiently by modern standards, to protect their independent
       status, and to fend off legislative or executive attempts to encroach upon
       judicial [prerogatives]. Id. at 481-82 (emphasis added) (quoting Anderson
       Cnty. Q. Ct., 579 S.W.2d at 878).

       Thus, we recognized that “‘[i]t is an imperative duty of the judicial
       department of government to protect its jurisdiction at the boundaries of
       power fixed by the Constitution,’” id. at 482 (quoting State ex rel. Shepherd
       v. Nebraska Equal Opportunity Comm’n, 251 Neb. 517, 557 N.W.2d 684,
       693 (1997) ), and that “the legislature can have no constitutional authority
       to enact rules, either of evidence or otherwise, that strike at the very heart
       of a court’s exercise of judicial power,” id. at 483 (citation omitted).

State v. Lowe, 2018 WL 3491044, at *9-10 (Tenn. July 20, 2018).

        Despite the clear mandate of the separation of powers provisions, Tennessee
courts have long recognized that it is impossible to preserve perfectly the theoretical lines
of demarcation between the executive, legislative, and judicial branches of government.
Bank of Commerce and Trust Company v. Senter, 149 Tenn. 569, 260 S.W. 144, 151
(1924); Richardson v. Young, 122 Tenn. 471, 493, 494, 125 S.W. 664 (1910). There is
necessarily a certain amount of overlapping. The three departments are interdependent.
Id.; see also Mistretta v. United States, 488 U.S. 361, 390 (1989) (acknowledging that
sentencing is a shared responsibility among the branches of government). In such
circumstances, “the proper inquiry focuses on the extent to which [the overlap] prevents
the Executive Branch [or Judiciary Branch] from accomplishing its constitutionally
assigned functions.” Nixon v. Administrator of General Services, 433 U.S. 425, 443
(1977) (citing United States v. Nixon, 418 U.S. 683, 711-12 (1974)). “Only where the
potential for disruption is present must we then determine whether that impact is justified
by an overriding need to promote objectives within the constitutional authority of
Congress.” Id. (citing Nixon, 418 U.S. at 711-12). Where a legislative enactment does
not frustrate or interfere with the adjudicative function of the courts, it does not constitute
an impermissible encroachment upon the judicial branch of government. Mansell, 417
S.W.3d at 403-04; Lynch v. City of Jellico, 205 S.W.3d at 393 (citing Underwood v.
State, 529 S.W.2d at 47).

       We recognize that at common law, there was no such thing as “probation,” see
Atchley v. State, 176 Tenn. 514, 144 S.W.2d 748 (1940) (observing that prior to the
passage of Chap. 76, Acts of 1931, judges had no power of suspension or parole), and the
authority to grant probation springs solely from legislative action. State v. Burdin, 924


                                              15
S.W.2d 82 (1996). However, sentencing has long been held to be fundamentally a
judicial power. See Ex parte United States, 242 U.S. 27, 41 (1916) (recognizing in
dictum that “Indisputably under our constitutional system the right to try offences against
the criminal laws and upon conviction to impose the punishment provided by law is
judicial. . . .”); Whitehead v. United States, 155 F.2d 460, 462 (6th Cir. 1946) (“Fixing
the terms and conditions of probation is a judicial act which may not be delegated.”);
State v. Johnson, 630 N.W.2d 583, 588 (Iowa 2001) (“Subject to the statutorily
prescribed punishments for criminal offenses, the actual sentencing of a defendant is an
independent function that is the sole province of the judiciary.”).

       “The imposition of a sentence, including the terms and conditions of supervised
release, is a core judicial function that cannot be delegated,” see United States v. Johnson,
48 F.3d 806, 808 (4th Cir. 1995), and “[p]reserving the judiciary’s exclusive authority to
impose sentences is an area in which it is important for courts to be vigilant.” United
States v. Morin, 832 F.3d 513, 518 (5th Cir. 2016); see also Tenn. Code Ann. § 40-35-
212 (a) (“In imposing a sentence, the court shall determine under what conditions a
sentence will be served as provided by law.”). Similarly, the trial court’s discretion to
determine the conditions of probation, to modify conditions of probation, and to revoke
probation are core functions of the judiciary. See State v. Archie, 322 S.C. 135 (S.C. Ct.
App. 1996) (holding that determination of conditions of probation is a judicial function
which cannot be delegated to an executive agency such a department of probation and
striking legislative act purporting to do so as violation of separation of powers); State v.
Henderson, 527 N.W.2d 827-829 (Minn. 1995) (recognizing that determining conditions
of probation is exclusively a judicial function that cannot be delegated to executive
agency); see also United States v. Nash, 438 F.3d 1302, 1305-06 (11th Cir. 2006) (core
judicial function includes sentencing defendant and imposition of condition of probation);
United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005) (holding that decisions
involving the “nature or extent of the punishment imposed upon a probationer” were
functions of the judiciary because the right to impose punishment is judicial); United
States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005) (holding that delegating to a
probation officer the decision whether a defendant will participate in a treatment program
was plain error); United States v. York, 357 F.3d 14, 21 (1st Cir. 2004) (holding that a
decision is a core judicial function if it is a “significant penological decision” such as
determining whether a probationer should undergo specific types of treatment).

        Probation, not to be confused with parole, is a conditional suspension of a
custodial sentence to be imposed and administered by a judge. Significantly, the trial
court retains jurisdiction during the probationary sentencing period. See Tenn. Code
Ann. § 40-35-303(b) (noting that a court shall have authority to impose probation as part
of its sentencing determination at the conclusion of the sentencing hearing); Tenn. Code
Ann. § 40-35-311 (a) (Whenever it comes to the attention of the trial judge that any
defendant who has been released upon suspension of sentence has been guilty of any


                                             16
breach of the laws of this state or has violated the conditions of probation, the trial judge
shall have the power to cause to be issued under the trial judge’s hand a warrant for the
arrest of the defendant as in any other criminal case.) Probation offers a defendant found
guilty of an offense the “opportunity to rehabilitate himself without institutional
confinement under the tutelage of a probation official and under the continuing power of
the [trial court] to impose institutional punishment for his original offense in the event
that he abuse this opportunity.” Roberts v. United States, 320 U.S. 264, 272 (1943)
(distinguishing between power to suspend execution of a sentence and the alternative
power to defer its imposition). In other words, the trial court retains jurisdiction to ensure
that the probationer properly complies with its order and will revoke probation only after
affording due process. Probation is therefore “a matter of favor” granted by the court as
recognition that a convicted defendant may benefit from an opportunity “to take
advantage of an opportunity for reformation which actual service of the suspended
sentence might make less probable.” Burns v. United States, 287 U.S. 216, 220 (1932).
It is conferred by statutory privilege, not a matter of constitutional right. Gagnon v.
Scarpelli, 411 U.S. 778, 782 n. 4 (1973).

        Unlike probation, parole is an act of grace granted by the executive branch after
the individual has served part of his sentence. Knight v. United States, 73 F.3d 117, 119
(7th Cir. 1995) (emphasis added); Tenn. Code Ann. § 40-35-503(a) (“The board
of parole has the authority to parole inmates with felony sentences of more than two (2)
years or consecutive felony sentences equaling a term greater than two (2) years.). The
trial court does not have jurisdiction over parole matters, and a parolee will not again
appear before the court even if there is a violation of parole. Accordingly, parole or an
individual’s parole eligibility status does not implicate the trial court’s sentencing
authority.

       The question here is whether the authority delegated by the General Assembly to
the department in mandating that all probationers be subject to the graduated sanctions
matrix has impermissibly encroached upon the judicial powers of the courts. Given the
above law, we are constrained to conclude that Code sections 40-28-301 to -306 of the
PSA prevent the judiciary from accomplishing its constitutionally assigned functions
regarding sentencing. Moreover, the General Assembly’s action in promulgating these
provisions of the PSA is not justified by an overriding need to promote its objectives of
rehabilitating individuals on community supervision, reducing the number of incarcerated
individuals, and reducing the costs associated with incarceration because trial courts have
the discretion to impose graduated sanctions and can approve graduated sanctions
recommended by probation officers. Accordingly, as we will explain more fully below,
these portions of the PSA frustrate or interfere with the adjudicative function of the courts
and impermissibly encroach upon the judicial branch of government in violation of the
non-delegation principle rooted in the separation of powers doctrine.



                                             17
       Mandating all probationers to be subject to the graduated sanctions system for
probation violations, no matter how minor, strikes at the very heart of the trial court’s
inherent judicial powers. The trial court exercises its fact-finding determination in
reaching the conclusion to place an offender on probation. This determination is
inextricable from the underlying facts of the case, with which the trial court is uniquely
familiar. The mandatory condition of probation, an overly broad delegation to the
department, eviscerates the trial court’s fact-finding determination for conditions of
probation. It is problematic that the PSA’s system of graduated sanctions is a required
condition of a probationer’s sentence, regardless of whether the trial court believes it is
appropriate in any given case. There is no connection or nexus between the trial court’s
grant of probation, the court-imposed conditions, and the imposition of graduated
sanctions. For example, under the PSA, the department is permitted to send a probationer
for drug treatment even if there was nothing in the trial court’s conditions of probation
banning drug use. See State v. Stevens, 373 S.C. 595, 871-72 (S.C. 2007) (it is
permissible for legislature to create policies and procedures for imposing conditions of
supervision so long as these conditions do not diminish or expand court-imposed
conditions). Additionally, the system of graduated sanctions authorizes the department to
determine whether the offender should participate in particular programs, not just to
determine the details surrounding the offender’s enrollment in a program after the trial
court determines that such a program is necessary. While the department has broad
power “to manage aspects of sentences and to supervise probationers and persons on
supervised release with respect to all conditions imposed by the court,” those powers are
limited by [section of Tennessee constitution separation of powers and supremacy]. See
United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995).

       By reaching this result, we in no way question the wisdom of the legislature in
promulgating an administrative probation sanction process. However, upon our review
of the majority of states that have adopted similar graduated sanction systems,5 the trial
court’s discretionary function is not eroded in this manner. Under the system
implemented here, the judiciary has become reliant upon the executive branch to
determine the degree of and sanction for violations of probation. The legislature’s
delegation of authority to the executive in this case ultimately deprives the court of the
power to decide cases, making the delegation unconstitutional. Even if sentencing is
        5
          Compare (California) Ann. Cal. Penal Code § 1203.35(2);§ 3454(b): (Florida) F.S.A. §
948.01(3)(1)-(3): (Georgia) G.C.A. § 42-8-23(f);§ 42-8-23(a),(c);§ 42-8-35(a)(16): (Kansas) 2017 KS
H.B.          2260;        KSA            21-6607;        K.S.A.2014            Supp.         22-3716(c):
(Kentucky)KRS.§439.551(1);§439.553;§439.3108(1)(a);§ 439.3108(4);§ 439.3108(6); (Maryland) MD
Code § 6-121;§ 6-111(5): (Mississippi) Miss. Code Ann. § 47-7-38(4): (New York); (South Dakota)
SDCL § 16-22-13: (Vermont) 28 V.S.A. § 304(c) with (Alabama) Ala. Code § 15-22-54(g); § 15-22-
54(h): (Nebraska) Neb. Rev. St. § 29-2266.03(3)(a)(b)(c): (Utah) U.C.A. § 64-13-29(1)(a)(ii); § 64-13-
6(2) (sanctions imposed by department but required to notify court); see also State v. Horn, 226 Wis. 2d
637 (1999) (holding that administrative revocation proceeding did not violate separation of powers).


                                                   18
viewed as a shared power between the executive and the legislative branch as argued by
the State, these provisions of the PSA frustrate and substantially interfere with the core
functions of the judicial branch. Any holding to the contrary would effectively
discourage trial courts from imposing probation as part of the imposition of sentence,
which cannot be the desired intent of the legislature. Because sections 40-28-301, -306
of the PSA removes the discretion of a trial judge in making determinations of logical or
legal relevancy and collectively impairs the independent operation of the judicial branch
of government, we must follow the dictates of Mallard and Lowe, and conclude that it
violates the Tennessee Constitution’s Separation of Powers Clause and, therefore, cannot
be upheld. State v. Lowe, 2018 WL 3491044, at *10.

       Due Process.. On appeal, the State insists that the trial court erred in “equating the
imposition of graduated sanctions with probation revocation” which, in their view, are
not the same. Moreover, because the PSA does not authorize probation officers to revoke
probation, the State contends that Gagnon/Morrissey due process concerns are not
implicated. The State ultimately contends the administrative review provisions of the
PSA satisfy any due process concerns. The Defendant again incorporated the trial court’s
reasoning and order on appeal, without significant elaboration. The trial court
determined that the provisions of the PSA ran afoul of due process. In striking the
administrative provisions, the trial court reasoned as follows:

              [T]he Tennessee Constitution states that due process is required
       when a man is “ . . . taken or imprisoned, disseized of his . . . liberties or
       privileges.” The drafters recognized that to be “taken or imprisoned” or
       “disseized of . . . liberties or privileges” are distinct events which are
       equally entitled to due process protections. As is relevant here, a
       probationer need not be “taken or imprisoned” by the State to have been
       “disseized of . . . liberties or privileges.” Tenn. Const. Article I, §8.

              A person’s liberty interest or privileges are adversely and seriously
       impacted in many forms which are less burdensome than incarceration.
       These forms are among the “non-prison offender accountability measures”
       which may be imposed by the probation officer pursuant to the Act which
       include participation in:

              (a) mental health treatment;
              (b) work crews; and
              (c) residential treatment centers.

       T.C.A. § 40-28-301.

              ....


                                             19
       It is beyond doubt that a sanction order issued by a probation officer
which directs a person to, without that person’s free and knowing consent,
somehow obtain “mental health treatment” or to come here or go there and
“work” or to move from one’s home to a “residential treatment center”
chosen by the probation officer, impacts important liberty interests or
privileges which are protected by the constitutions. Id. Each such order
makes probation “more onerous[.]” Merriweather at 885. Whether these
type of administrative responses to violations are considered “violation
revocation proceedings”, “sanctions other than revocation”, “treatment” or
punishment, does not determine that process which is due.” T.C.A. § 40-
28-302. The District Attorney General concedes that, from the standpoint
of the probationer, these words will all be interpreted as punishment. By
whatever name known, only such orders issued following the exercise of
constitutional due process can be valid.

       Moreover, whether considered to be a part of the criminal process or
not, a probationer is entitled to a fair hearing before an impartial or
“independent decisionmaker” who will determine whether a violation of
probation has occurred. A supervising probation officer is not an
“independent decisionmaker[.]” Gagnon at 786; Merriweather at 885-886.

        The Act veils the deprivation of due process by requiring the
sentencing judge in every felony case, where probation is granted, to
initially include, as a condition of probation, a provision that the probation
officer “may” make such sanction orders at a later time and without further
hearing. T.C.A. § 40-28-304. This is the linchpin to the entire suspect
system. The legislature cannot mandate that a trial judge impose
[conditions] in a criminal judgment today, which if adhered to in the future,
will deprive a person of constitutional due process.

       ....

       For the foregoing reasons, this Court must hold that the
administrative sanctions provisions of the Act which relate to compelled
mental health treatment, participation in work crews, forced location within
residential treatment centers and other like requirements, disseizing a
person of significant liberties or privileges, violate the federal and state
constitutional due process rights of [the Defendants], and any probationer
sentenced on or after January 1, 2017, in that they:




                                     20
             (a) eliminate any meaningful opportunity of the probationer
                 to object to a “presumptive sanction” and to seek a fair
                 hearing aided by counsel before a neutral and independent
                 decisionmaker;

             (b) limit the right of the probationer to contest the issue of
             guilt of the alleged violation to only those “permitted by the
             system of graduated sanctions”. T.C.A. § 40-28-305(c).

             (c) fail to provide a mechanism to determine the indigency of
             an accused probationer and fails to provide for the right of
             legal counsel without cost to an indigent person;

             (d) eliminate the rights of the probationer to confront and
             cross examine his or her accusers or to review the evidence,
             Id.;

             (e) abrogate the right of the probationer to present evidence,
             Id.; and

             (f) abrogate the right to an independent post determination
             review of the probation violation decision in affected cases.

       As relevant here, the Due Process Clause of the Fourteenth Amendment imposes
procedural and substantive limits on the revocation of the conditional liberty created by
probation. Black v. Romano, 471 U.S. 607 (1985); Bearden v. Georgia, 461 U.S. 660,
666, and n. 7 (1983). In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court
determined that although a parole revocation hearing does not trigger “the full panoply of
protective rights due a defendant” in a criminal proceeding, the liberty issues involved
implicate significant rights protected by the due process clause of the Fourteenth
Amendment. The same minimum requirements of due process apply to all parole and
probation revocation hearings. See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (parole and
probation are constitutionally indistinguishable). Specifically, Morrissey/Gagnon due
process protections require the following:

             [P]reliminary and final revocation hearings. At the preliminary
      hearing, a probationer or parolee is entitled to notice of the alleged
      violations of probation or parole, an opportunity to appear and to present
      evidence in his own behalf, a conditional right to confront adverse
      witnesses, an independent decision-maker, and a written report of the
      hearing. [Morrissey v. Brewer, 408 U.S. at 487, (1972)].



                                           21
            The final hearing is a less summary one because the decision under
      consideration is the ultimate decision to revoke rather than a mere
      determination of probable cause, but the “minimum requirements of due
      process” include very similar elements:

              They include (a) written notice of the claimed violations of parole;
      (b) disclosure to the 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 parole.

Morrissey v. Brewer, 408 U.S. at 489.

       Both the probationer or parolee and the State have interests in the accurate finding
of fact and the informed use of discretion—the probationer or parolee to insure that his
liberty is not unjustifiably taken away and the State to make certain that it is neither
unnecessarily interrupting a successful effort at rehabilitation nor imprudently
prejudicing the safety of the community. Gagnon, 411 U.S. at 785; Practy v. State, 525
S.W.2d 677, 680 (Tenn. Crim. App.1974) (“This State’s procedure for revocation of
sentence suspension and probation is an orderly one affording a probationer full
protection of his constitutional right to due process.”); State v. Leiderman, 86 S.W.3d
584, 589 (Tenn. Crim. App. 2002); State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn.
Crim. App.1997).

       We begin by noting that the trial court’s order found only those graduated
sanctions defined as rehabilitative interventions compelling mental health treatment,
residential treatment, work crew, and other like requirements to violate due process. The
State did not address the trial court’s explicit conclusion that imposition of these
rehabilitative interventions is more onerous than others included in the PSA. Indeed,
under the PSA, a probationer is mandated to submit to a broad array of sanctions at some
future point after sentencing, without any judicial oversight. See State v. Merriweather,
34 S.W.3d 881, 885-86 (Tenn. Crim. App. 2000) (prohibiting modification of probation
supervision in probation conditions without the defendant’s consent when they are more
onerous than those originally imposed by the trial court). Based on the above law, we are
constrained to agree with the trial court and conclude that the relevant portions of the
PSA violate due process because (1) it does not allow for offenders to see the
government’s evidence against them, (2) it does not provide a hearing where probationers
can present their own evidence and cross-examine adverse witnesses, and (3) it does not


                                            22
provide probationers with an opportunity to have their case heard by a neutral and
impartial judge.6

        As an initial matter, the State misses the mark in arguing that due process is not
implicated because imposition of “graduated sanctions” is not the same as revocation of
probation, which remains within the sole discretion of the trial court. We see this as a
distinction without any meaningful difference. Grounds for violations of probation are
the same as those for imposition of graduated sanctions. The fact that the graduated
sanction amounts to less than full revocation does not make it any less a penalty for an
infraction of the rules of probation. See e.g. State v. Paxton, 742 N.E.2d 1171, 1172-73
(Ohio Ct. App. 2000) (holding that trial court could not delegate to probation officer the
job of determining whether a minor violation of probation had occurred or of imposing
additional jail time if the probation officer finds a violation because probationer had right
to notice, hearing, presentation of evidence). Moreover, the State’s position is inapposite
to the language of the PSA in that if the probationer objects to or unsuccessfully
completes the graduated sanction, it becomes a violation of probation. Finally, the
rehabilitative interventions specifically identified in the trial court’s order have been
traditionally held to carry significant liberty interests. See e.g State v. Phillips, 968
S.W.2d 874, 879 (Tenn. Crim. App. 1996) (recognizing that involuntary commitment to a
mental institution constitutes a deprivation of liberty that invokes the constitutional
protection of procedural due process) (citing Jones v. United States, 463 U.S. 354, 361
(1983) and Addington v. Texas, 441 U.S. 418, 425 (1979)); State ex rel. McCormick by
Hirst v. Burson, 894 S.W.2d 739, 743 (Tenn. Ct. App. 1994) (civil commitment to a
hospital produces “a massive curtailment of liberty” and therefore requires due process
protection) (citing Vitek v. Jones, 445 U.S. 480, 491-92 (1980)). Accordingly, we
conclude that the minimal due process protections afforded under Gagnon/Morrissey
apply.

       As relevant here, the relevant portions of the PSA gave the department the
authority to develop an administrative review process to provide supervised individuals
with the option to object and seek administrative review of certain sanctions, if permitted.
We have carefully reviewed the graduated sanctions grid and the testimony from the
hearing, and it remains unclear which sanctions are permitted to be reviewed.
Nevertheless, a supervised individual is given notice of the intended sanction, which
informs them of the violation or violations alleged, the date or dates of the violation or
violations, and the graduated sanction. If the supervised individual objects to the
imposition of the sanction or sanctions, when permitted by the system of graduated

        6
          As these provisions of the PSA were part of an omnibus bill, there was sparse discussion on this
topic prior to its passage. However, Senator Mike Bell voted against inclusion of this section citing due
process concerns. See “Public Safety Act of 2016,” H.B. 2576, 2016 Sess. 109th General Assembly
(Tenn.Apr.19,2016),http://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HB2576&ga=109(
statement beginning at 3:28:48 on video recording).

                                                   23
sanctions, the individual is entitled to an administrative review to be conducted by the
department within five (5) days of the issuance of the notice. If the department affirms
the recommendation contained in the notice, the sanction or sanctions shall become
effective immediately. The PSA provides that the review shall be conducted by the chief
supervision officer, who shall be impartial and trained to hear cases regarding graduated
sanctions for violations of supervision conditions.

       The above process falls woefully short in detailing what in fact will occur in the
administrative review by the department. Of import to our analysis is the lack of any
hearing during which the offender may present their own evidence, cross-examine
adverse witnesses, and see the government’s evidence against them. In rejecting the
State’s argument that the above procedure satisfies due process, we are mindful that
       [W]here governmental action seriously injures an individual, and the
       reasonableness of the action depends on fact findings, the evidence used to
       prove the Government’s case must be disclosed to the individual so that he
       has an opportunity to show that it is untrue. While this is important in the
       case of documentary evidence, it is even more important where the
       evidence consists of the testimony of individuals whose memory might be
       faulty or who, in fact, might be perjurers or persons motivated by malice,
       vindictiveness, intolerance, prejudice, or jealousy. We have formalized
       these protections in the requirements of confrontation and cross-
       examination. They have ancient roots. They find expression in the Sixth
       Amendment which provides that in all criminal cases the accused shall
       enjoy the right ‘to be confronted with the witnesses against him.’ This
       Court has been zealous to protect these rights from erosion. It has spoken
       out not only in criminal cases, . . . but also in all types of cases where
       administrative and regulatory actions were under scrutiny.

See Greene v. McElroy, 360 U.S. 474, 496-97 (1959) (internal citations/quotations
omitted). There is likewise no record of the proceedings, which makes impossible for
any genuine review of the sanction if it results in a violation of probation.

        Moreover, the above administrative review does not provide probationers with an
opportunity to have their case heard by a neutral and impartial judge. Trial courts, not the
department, must determine whether a violation occurred, no matter how minor, and the
appropriate sanction or consequence because probationers are entitled to greater rights
than parolees. Probationers, based on their location on the continuum of reductions in
freedoms, see Turner, 297 S.W.3d 155, 162-63, occupy a place closest to that of free
individuals. Of these greater rights given to probationers, one of the most important
rights is to have an impartial judge, rather than a member of the executive branch, make
decisions regarding probation violations. Judges are the quintessential neutral and
impartial decision makers, and the Tennessee Supreme Court has long recognized that


                                            24
“the right to an impartial judge is a fundamental constitutional right.” State v. Blackmon,
984 S.W.2d 589, 591 (Tenn. 1998) (citing State v. Benson, 973 S.W.2d 202, 205 (Tenn.
1998)).

       A judge, rather than a probation officer or supervisor, is in the best position to
exercise judicial discretion in determining whether a violation actually occurred and, if
so, what the appropriate consequence or sanction should be for the violation following a
hearing with appropriate due process safeguards. Trial courts are also better suited to
make required determinations for indigency, see State v. Dye, 715 S.W.2d 36, 40 (Tenn.
1986) (requiring finding of willfulness prior to revocation for failure to pay fines/fees),
and hearsay evidence, see e.g. State v. Wade, 863 S.W.2d 406, 407 (Tenn.1993)
(requiring finding of good cause and reliability prior to admission of hearsay). Finally,
the concept that a trial court, rather than the department, should adjudicate probation
violations, no matter how minor, is supported by the emergence of Drug Courts, Mental
Health Courts, and other courts that use a team approach, of which the trial judge is a
member, to more effectively encourage the rehabilitation of offenders. Accordingly,
based on the above reasoning and analysis, we conclude that the above provisions of the
PSA lack the minimum due process protections afforded under Gagnon/Morrissey.

        Equal Protection. In its last issue in this appeal, the State argues that the trial
court’s ruling regarding equal protection was “ill-founded.” Because every defendant
sentenced to release or community supervision is subject to imposition of the graduated
sanctions, the State argues the precise “classification of probationers” in the trial court’s
order is unclear. Nevertheless, the State contends that probationers facing revocation and
those facing graduated sanctions are not similarly circumstanced. The State policy of
“assisting the offender to remain compliant and crime-free in the community,” see Tenn.
Code Ann. §40-28-302(2016 Supp.), is more than sufficient to justify the differential
treatment of the two differentially-circumstanced categories of probationers. The
Defendant did not provide any independent analysis of this issue and relied entirely upon
the trial court’s order. Here, we are inclined to agree with the State. While the trial
court’s order was extensive, it did not clearly identify the two classifications of
probationers in its analysis. As such, we conclude the trial court erred by ruling that the
PSA violated constitutional equal protection. However, this has no effect upon our
decision to affirm the trial court’s judgments.




                                             25
                                     CONCLUSION

         Based on the above authority and analysis, we affirm the judgments of the trial
court.


                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




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