        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs November 20, 2013

             STATE OF TENNESSEE v. ROBERT GENE ROGERS

                    Appeal from the Criminal Court for Bradley County
                            No. M-10-020 Amy Reedy, Judge



                    No. E2013-00909-CCA-R3-CD - Filed April 11, 2014


Appellant Robert G. Rogers was on probation for multiple counts of aggravated burglary,
theft over $10,000, and theft of $500 or less. His probation officer filed a probation violation
warrant as a result of Appellant’s arrest in Bradley Count for extortion. The probation
violation warrant was subsequently amended to allege that Appellant had absconded from
supervision. At the conclusion of the probation violation hearing, the trial judge revoked
Appellant’s probation and ordered him to serve his originally imposed twenty-year sentence.
Appellant appeals arguing that the trial court erred in revoking his sentence and that the trial
judge should have recused herself. After a review of the record on appeal, we affirm the
revocation of Appellant’s probation.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and D. K ELLY T HOMAS, J R., JJ., joined.

Keith Roberts, Assistant Public Defender, for the appellant, Robert Gene Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Stephen Bebb, District Attorney General, and Stephen Hatchett, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                     Factual Background

      In August 2011, Appellant pled guilty to multiple counts including ten counts of
aggravated burglary, two counts of theft over $10,000, and two counts of theft of $500 or
less. The trial court sentenced Appellant to an effective sentence of twenty years. The trial
judge suspended Appellant’s sentence and placed him on probation for twenty years.

       On July 2, 2012, Appellant’s probation officer filed a probation violation warrant.
The warrant stated that Appellant had violated Rule One, “I will obey the laws of the United
States, or any State in which I may be, as well as any municipal ordinances;” and Rule
Fourteen, “I will not engage in any assaultive, abusive, threatening, or intimidating behavior.
Nor will I participate in any criminal street gang related activities as defined by T.C.A. § 40-
35-121. I will not behave in a manner that poses a threat to others or myself.” The violation
warrant was based on an arrest on June 27, 2012, for one count of extortion. On November
2, 2012, the violation warrant was amended to include that Appellant had last reported to his
probation officer on June 27, 2012, and that he last paid restitution on June 19, 2012, and still
owed $34,189, which were violations of Rules Six and Nine.

        On March 22, 2013, the trial court held a probation violation hearing. The first
witness at the hearing was Appellant’s probation officer. He stated that Appellant was
charged with one count of extortion. According to the probation officer, he informed
Appellant that he was going to file the probation violation warrant, and Appellant responded
that he “would not take off.” However, contrary to his assertion, Appellant did abscond from
supervision, and the probation officer amended the violation warrant to include this violation.
The probation officer testified that he had no contact with Appellant from about July 9 until
Appellant was picked up after absconding from supervision. He was required to report twice
a month.

       The victim in the extortion charge also testified at the hearing. She testified that she
and Appellant had been in a romantic relationship for seven years. They had a child together.
She said that they separated in April, but she told him he could live with his son from a
previous relationship in her house through the end of May while she stayed at her mother’s
house. After he moved out at the end of May, he called her at work asking for a place to take
a shower and rest. She told him he could go to her house. She went to the house to check
on things, and she and Appellant engaged in sexual intercourse.

       A week later, the victim took their son to preschool and meet Appellant. While there,
Appellant pulled out his cellphone and showed the victim a video of them having intercourse
and told her he would put the video on YouTube if she did not give him co-custody of their
son, a motorcycle, and get her mom and brother to drop the orders of protection they had
taken out against him. She testified that the motorcycle was in her name, and she made
payments on it every month. Appellant had only made one payment in the four years that
payments were being made on the motorcycle.



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        The victim contacted a lawyer, and they in turn met with an agent with the Tennessee
Bureau of Investigation (“TBI”). As a result, she met again with Appellant while wearing
a hidden recording device to record their conversation. During that conversation, Appellant
reiterated his demand for co-custody and the motorcycle. The victim testified at the hearing
that she did not know that Appellant was videotaping their earlier sexual encounter and did
not give him permission to videotape the encounter.

       Appellant also testified at the hearing. He stated that he had recorded their encounter
because he did not want to be accused of burglary. Also, he was angry that she did not allow
him to see their child. He said that he only saw his child for five hours during a seven week
period. He said that trying to see his child was “the only thing [he] was trying to do.” He
admitted that he avoided the police for five months and alleged that the victim supported him
during that time and that they were having sexual intercourse during that time.

       On cross-examination, Appellant agreed that he had been interviewed by the TBI. He
stated that he filmed the victim coming into the house and kissing him, but he denied
recording them having sexual intercourse. He stated that it was dark in the bedroom.

       At the conclusion of the hearing, the trial court concluded that Appellant had violated
his probation. The trial court made the following statement, “Well, that’s pretty simple
elements I guess, looks like to the Court. The Court finds that the state has proven that he
has violated Rule Number One and Rule Number 14, and Rule Number Six, and Rule
Number Nine.” The trial court revoked Appellant’s probation and ordered him to serve his
twenty-year sentence.

                                        ANALYSIS

                                    Probation Violation

       On appeal, Appellant argues that the trial “court did not articulate any specific
findings as to the violation in the case at bar and the findings the court did make are not
supported by the evidence presented by the State.” Furthermore, he argues that “[t]he State
presented no evidence that defendant had violated Rule Number Nine. Rule Number one and
Rule Number 14 were identical in wording in the violation warrant filed against defendant.
Although defendant was charged . . . with extortion, the charges were subsequently
dismissed.” The State disagrees.

       A trial court may revoke probation and order the imposition of the original sentence
upon a finding by a preponderance of the evidence that the person has violated a condition
of probation. T.C.A. §§ 40-35-310 & -311. After finding a violation of probation and

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determining that probation should be revoked, a trial judge can: (1) order the defendant to
serve the sentence in incarceration; (2) cause execution of the judgment as it was originally
entered; or (3) extend the probationary period for up to two years. See T.C.A. § § 40-35-
308(c) & -311(e); see also State v. Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). The decision
to revoke probation rests within the sound discretion of the trial court. State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of probation and a community
corrections sentence is subject to an abuse of discretion standard of review, rather than a de
novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion
is shown if the record is devoid of substantial evidence to support the conclusion that a
violation of probation has occurred. Id. The evidence at the revocation hearing need only
show that the trial court exercised a conscientious and intelligent judgment in making its
decision. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). “A trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical conclusion,
bases its ruling on a clearly erroneous assessment of the proof, or applies reasoning that
causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn.
2010).

       We agree with Appellant that the State did not present evidence that he had failed to
pay restitution. Appellant’s probation officer did not testify specifically that Appellant had
stopped paying restitution, and there was no other evidence presented at the hearing to
support this accusation.

       A trial court may not rely on the mere fact of an arrest or an indictment to revoke a
defendant’s probation sentence. A new arrest and pending charges are proper grounds on
which a trial court can revoke a defendant’s probation, however a trial court may not rely on
the mere fact of an arrest or an indictment to revoke a defendant’s probation. See Harkins,
811 S.W.2d at 83 n.2. A revocation on this basis requires the State to “produce evidence in
the usual form of testimony” in order to establish the probationer’s commission of another
offense while on probation. State v. Walter Lee Ellison, Jr., No. 01C01-9708-CR-00361,
1998 WL 272955, at *2 (Tenn. Crim. App., at Nashville, May 29, 1998); see State v. Michael
Chaney, No. 01C01-9801-CC-00010, 1999 WL 97914, at *1 n.2 (Tenn. Crim. App., at
Nashville, Feb. 18, 1999). Unlike when a defendant challenges the sufficiency of the
evidence, “[t]he proof of a probation violation need not be established beyond a reasonable
doubt, but it is sufficient if it allows the trial judge to make a conscientious and intelligent
judgment.” Harkins, 811 S.W.2d at 82.

       The State presented the testimony of the victim, as well as a recording of a discussion
between the victim and Appellant. We conclude that the trial court found the victim’s
testimony to be credible because the trial court stated that all alleged violations had been
proven. The testimony of the victim and the recording submitted at the hearing were

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sufficient to support the trial court’s conclusion that Appellant violated Rules One and
Fourteen. Therefore, we find no abuse of discretion by the trial court.

       Furthermore, there is ample evidence to support the trial court’s determination that
Appellant violated Rule Six, “I will report to my probation officer as instructed.” The State
presented the testimony of the probation officer that Appellant failed to appear from July
until he was picked up for absconding from supervision. Appellant also admitted that he
absconded from supervision. He stated at the hearing, “I did avoid the law for five months.”
There is ample evidence to support the trial court’s finding this violation by Appellant. We
find no abuse of discretion with regard to the reliance upon Rule Six, failure to report to his
probation officer.

       This Court has stated, “There need be only one violation of the conditions of probation
to support revocation.” State v. Phillip Thomas Wilcox, No. M2002-00667-CCA-R3-CD,
2003 WL 21047133, at *2 (Tenn. Crim. App., at Nashville, May 9, 2003). In this case, there
is evidence of more than one violation. The trial court did not abuse its discretion.

       Therefore, this issue is without merit.

                                           Recusal

       Appellant also argues that the trial judge erred by failing to recuse herself from the
probation revocation proceedings. Appellant argues that the victim was close friends with
members of the trial judge’s immediate family. He also argues that she should have recused
herself because while she was serving as a assistant district attorney she prosecuted
Appellant. The State argues that this issue is waived because Appellant did not present this
issue prior to or during the hearing.

        As an initial matter, we address the standard by which this Court reviews petitions for
recusal on appeal. Pursuant to Tennessee Supreme Court Rule 10B, section 2.01, a party is
entitled to an “accelerated interlocutory appeal as of right” from an order denying a motion
for disqualification or recusal. As amended, effective July 1, 2012, Tennessee Supreme
Court Rule 10B, section 2.06, directs this Court to review the appeal “on an expedited basis
based upon a de novo standard of review.” Prior to July 1, 2012, the appellate courts
reviewed recusal decisions pursuant to the more deferential abuse of discretion standard. See
State v. Hester, 324 S.W.3d 1 (Tenn. 2010). The timing of the motion for recusal requires
this Court will review the appeal under the new de novo standard.




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                           Timeliness of the Motion to Recuse

       In the case at hand, the trial court’s order revoking Appellant’s probation was filed
on March 22, 2013. On April 8, 2013, Appellant filed a pro se “Petition for an Appeal” that
included as grounds that the victim was friends with the trial judge’s immediate family
members and that the trial judge had once acted as prosecutor against him when she was
assistant district attorney. Subsequently, Appellant’s counsel filed a Notice of Appeal on
April 17, 2013.

       Before addressing the merits of the recusal issue, this Court must comment on the
procedural requirements of the filing of a motion to recuse under Rule 10B. Section 1.01 of
that Rule provides in its entirety:


       Any party seeking disqualification, recusal, or a determination of constitutional
       or statutory incompetence of a judge of a court of record, or a judge acting as
       a court of record, shall do so by a timely filed written motion. The motion
       shall be supported by an affidavit under oath or a declaration under penalty of
       perjury on personal knowledge and by other appropriate materials. The motion
       shall state, with specificity, all factual and legal grounds supporting
       disqualification of the judge and shall affirmatively state that is not being
       presented for any improper purpose, such as to harass or to cause unnecessary
       delay or needless increase in the cost of litigation. A party who is represented
       by counsel is not permitted to file a pro se motion under this Rule.


Tenn. Sup. Ct. R. 10B Section 1.01.

Section 1.01 of Rule 10B also mandates that a motion for recusal must be timely filed. As
the Court of Appeals recently recognized in addressing a Rule 10B motion for recusal:


        It is also important to recognize that a party may lose the right to challenge
        a judge’s impartiality by engaging in strategic conduct. Kinard v. Kinard,
        986 S.W.2d 220, 228 (Tenn. Ct. App.1998). Further, our “[c]ourts frown
        upon the manipulation of the impartiality issue to gain procedural advantage
        and will not permit litigants to refrain from asserting known grounds for
        disqualification in order ‘to experiment with the court . . . and raise the
        objection later when the result of the trial is unfavorable.’” Id. (quoting
        Holmes v. Eason, 76 Tenn. 754 (Tenn. 1882)); Gotwald v. Gotwald, 768

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        S.W.2d 689, 694 (Tenn. Ct. App. 1988). “Thus, recusal motions must be
        filed promptly after the facts forming the basis for the motion become
        known, and the failure to assert them in a timely manner results in a waiver
        of a party’s right to question a judge’s impartiality.” Id. (internal citations
        omitted).


Kathryn A. Duke v. Harold W. Duke, III, M2012-01964-COA10B-CV, 2012 WL 4513613
at *3 (Tenn. Ct. App., at Nashville, Oct. 2, 2012), perm. app. denied, (Tenn. Feb. 26, 2013).

         There are multiple procedural issues with Appellant’s “Petition for Appeal” assuming
it is to be taken as a motion for recusal of the trial judge. The motion was not timely since
it was not filed until the proceedings were over, it was not accompanied by an affidavit, and
Appellant was represented by counsel at the time he filed it. All these facts are contrary to
the requirements under Section 1.01 of Rule 10B. For this reason, this issue is waived.

                                     CONCLUSION

       For the forgoing reasons, we affirm the decision of the trial court.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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