                                                                                                  01/11/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                           Assigned on Briefs October 30, 2018

                  STATE OF TENNESSEE v. FELICIA GRAHAM

                    Appeal from the Circuit Court for Blount County
                       No. C-24373 David Reed Duggan, Judge
                       ___________________________________

                             No. E2018-00260-CCA-R3-CD
                         ___________________________________

The Defendant-Appellant, Felicia Graham, appeals from the revocation of her supervised
probation sentence by the Blount County Circuit Court, arguing that the trial court erred
in revoking her probation and ordering her to serve the remainder of her sentence in
confinement. Upon review, we affirm.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and TIMOTHY L. EASTER, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal) and Mack Garner, District Public
Defender (at hearing) for the Defendant-Appellant, Felicia Joan Graham.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Mike L. Flynn, District Attorney General; and Tracy Jenkins, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION
        Based on the meager record before us, the Defendant was convicted of aggravated
burglary in 2016 and “sentenced to [f]our [y]ears in the Tennessee Department of
Correction, suspended to time served, the balance under the supervision of State
Probation and Parole.”1 On January 5, 2017, a violation report was filed alleging that the
Defendant failed to provide her probation officer with proof of employment, failed to
report to probation as instructed on December 8, 2016, and December 30, 2016, and
failed to pay court costs and supervision fees. A warrant was subsequently issued, and

       1
          The record does not contain the judgment of conviction. We glean this information from the
probation revocation report and the transcript of the probation revocation hearing, during which the
parties loosely referred to the Defendant’s conviction and sentence.
the Defendant was arrested on December 19, 2017. A revocation hearing was held on
January 26, 2018. In an effort to explain six convictions accrued by the Defendant while
on probation, defense counsel began the hearing by clarifying that this was in fact the
Defendant’s first violation of probation in this case. At the time of her guilty plea to the
instant offense, she had been indicted in Knox County for five unrelated charges that had
not yet been served upon her. Following her arrest for these offenses on January 6, 2017,
the Defendant pleaded guilty, and the judgments of conviction were admitted into
evidence by the State and stipulated to by the Defendant.2 Significantly, as relevant to
the instant case, when the Defendant was arrested for the previously indicted offenses,
she was in possession of a stolen automobile license and charged with an additional
offense. She later entered a guilty plea to the new charge, which was also stipulated to at
the hearing. Defense counsel opined that the Defendant had been continuously
incarcerated since her arrest for the previously indicted offenses.

       Bruce Paulson of the Probation and Parole Office testified that he maintained the
Defendant’s file as of May 2017. In his role as the Defendant’s supervision officer,
Paulson had access to her probation records and affirmed that she had previously been on
probation. According to Paulson, the Defendant had three prior probation violations in
other cases in 2012, 2013, and 2015. Paulson recommended that the Defendant’s
probation be revoked and the remainder of her sentence be served in confinement. On
cross-examination, Paulson admitted that because the Defendant had been continuously
incarcerated since January 6, 2017, she had not had an opportunity to report to him.

        The Defendant, a thirty-two-year-old single mother of four young children,
testified regarding the circumstances of the Knox County cases, the Sevier County cases,
and the instant offenses, which occurred in Blount County. She conceded that when she
was arrested on the Knox County cases, she was in possession of a stolen license plate,
later pleaded guilty to the “misuse of a license plate,” and received time served.
According to the Defendant, she was incarcerated in Knox County from January to July
but did “60-something extra days there” because “[t]hey had [her] paperwork messed
up.” The Defendant wrote to Sevier County and was then transported. Asked to explain
why she was transported, the Defendant said she was transported to Sevier County for her
violations because she was on probation in Sevier County “just like she was on probation
in Blount County.” She served the remainder of her sentence in Sevier County and came
to Blount County on December 18, 2017.

       If granted release, the Defendant advised the court that she would move to her
father’s house until she could get her own place. Her children were currently living with

        2
          While it is clear the State intended to offer these judgments as exhibits, they are not included in
the record on appeal.
                                                    -2-
a great-grandmother, but the Defendant hoped to regain custody. The Defendant testified
that she had an eleventh-grade education and had work experience mainly in the fast food
and factory industries. She wanted to go back to work at a factory to support her family.
She admitted that she had a history of drug abuse about two years ago, but she had
stopped. The Defendant said she did not think she needed counseling or treatment for
drugs or alcohol. She said she used opiates for about thirteen years, and the prior
probation violations were a result of the drug use. She agreed that she had violated her
current probation by being in possession of a stolen license plate and said she was unable
to pay court costs because she had been in jail. She understood that she still owed
restitution on the aggravated burglary and said she was going to be able to pay that once
released. Asked if there was anything else the court needed to know before a sentence
was pronounced, the Defendant responded that her children’s brother had leukemia and
that they could not go see him unless she was able to take them, so she would like to be
able to do that.

        On cross-examination, the Defendant conceded that she had a prior criminal
history and that she had previously violated probation in 2012 for a positive drug screen,
in 2013 for new charges, and in 2015 for failing to report. Asked if she was in possession
of opiates when arrested on January 6, 2017, the Defendant said “it was Mucinex. They
said it was opiates. They was (sic) supposed to have done a drug test on it. And I don’t
know what happened with it. They never brought the drug test reports where they had
tested it.” The Defendant said she had previously received drug treatment in 2014, when
she participated in outpatient treatment.

      At the conclusion of proof, the trial court made the following findings:

      Well, first of all, I’m going to find that she’s engaged in a material violation
      of the terms of her probation but I’m going to divvy this up a little bit
      because -- now, maybe you all addressed this and I was thinking about
      something and missed it. I don’t think there was any proof on failure to
      provide proof of employment. I am going to find failure to report. Now,
      there might not have been any specific proof about December 8 and
      December 30 of 2016, but the officer testified that he has never seen her --

             ....

              -- that she’s never reported. So I think that’s sufficient to find
      failure to report. There was some proof on cross examination -- or maybe it
      was on Defendant’s direct examination about restitution. But I don’t
      remember any proof on court costs and supervision fees. I meant to ask the
      Clerk while we were still on the evidentiary hearing to give me a status on
                                           -3-
cost, but I forgot to do that. So I don’t remember any proof so I’m not
going to find a violation on that although I’m sure she hasn’t paid. But I’m
not going to find that as a basis for violation. I’m going to find failure to
report.

        And then turning to the amendment, obviously the amendment
alleges that she was arrested and charged with certain things.3 We have
stipulations that she pled guilty to certain things. And it may be that she
pled guilty to something other than what she was charged with. So I don’t
know that I can go down the list of charges in the amended order and know
whether that’s something you had stipulated or not. You stipulated a bunch
of things on January 6th of 2017, evading arrest, theft, assault, reckless
endangerment, and possession of drug paraphernalia. But the amendment
says simple possession, casual exchange, driving on a revoked license, use
of stolen plate -- well it does say theft. So I think at least I can find that she
violated by being charged with and pleading guilty to theft. I think I can
find even on this proof that she left her county of residence on January 6th,
2017, given that she was charged and arrested in Knox county. So that’s
going to be another ground. I think I can also find based on those charges
and arrest that she was in violation of her curfew. And -- well, I’m not
going to find in the absence of any proof that she tested positive for
oxycodone when she says that it was Mucinex. Now, I’m skeptical of that,
Ms. Graham, but nevertheless, in the absence of a drug screen or report I’m
not going to find that. But I am finding the violation that I have said. So,
obviously, there has been a material violation of the terms of her probation.

       Next I want to say that even though there have been no previous
violations in this case, it is clear from this evidence that she has a history of
violation, of failing to do what the Court has directed her to do. I don’t
know whether she has a drug problem or not. And in one sense I’m not too
concerned about that. Now, that doesn’t mean I don’t care if you have a
drug problem. That’s not what I mean. What I do mean is I don’t know
whether you have a drug problem or not. Maybe you do, but I don’t know.
But I’m very skeptical of you testifying that you pled guilty to offenses you
didn’t commit. If you didn’t commit them, you shouldn’t have pled guilty.
You know, that calls into question your credibility to me and failing to take
responsibility for these things. So I’m taking that into consideration too in
deciding what to do about this.


3
    There is no amendment included in the appellate record.
                                            -4-
               I am going to revoke you to serve. However, I am going to give you
       credit for time served from whatever that date is in July through today,
       January 26, 2018. And let’s see if we can pin that down and you can tender
       it to the Court by agreed order.

       It is from this order that the Defendant now timely appeals.

                                       ANALYSIS

       On appeal, the Defendant argues that the trial court erred in revoking her probation
and imposing confinement for the balance of the sentence based upon the evidence
contained in the record. The State responds, and we agree, that the trial court did not
abuse its discretion in fully revoking the Defendant’s probation.

        A trial court may revoke probation upon a finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-
311(e). This court will not disturb the trial court’s ruling absent an abuse of discretion.
State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991)). To establish an abuse of discretion, the defendant must show “that
the record contains no substantial evidence to support the conclusion of the trial judge
that a violation of the conditions of probation has occurred.” Harkins, 811 S.W.2d at 82
(citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395,
398 (Tenn. Crim. App. 1980)). Once the trial court decides to revoke a defendant’s
probation, it may (1) order confinement; (2) order the sentence into execution as initially
entered, or, in other words, begin the probationary sentence anew; (3) return the
defendant to probation on modified conditions as necessary; or (4) extend the
probationary period by up to two years. See State v. Hunter, 1 S.W.3d 643, 647 (Tenn.
1999) (citations omitted); State v. Larry Lee Robertson, No. M2012-02128-CCA-R3-CD,
2013 WL 1136588, at *2 (Tenn. Crim. App. Mar. 19, 2013); State v. Christopher Burress,
No. E2012-00861-CCA-R3-CD, 2013 WL 1097809, at *6 (Tenn. Crim. App. Mar. 18,
2013); T.C.A. §§ 40-35-308, -310, -311 (2012).

       The Defendant initially argues, and we agree, that the trial court erred in revoking
her probation based on her failure to report in December 2016. After commenting on the
lack of proof on the failure to report, the trial court nevertheless concluded that the
Defendant had failed to report because the probation officer testified that “he ha[d] never
seen her[,]” and “that she’s never reported.” However, the record shows that this issue
was not developed in any significant way, i.e., the probation officer, who had only been
supervising the Defendant’s probation since May 2017, was not asked if he was assigned
to supervise the Defendant during December 2016, or whether his records reflected that

                                           -5-
she failed to report on the listed dates. Accordingly, there was no evidence supporting
revocation on this ground.

        The trial court also based the revocation order on the Defendant’s failure to
comply with residency requirements as well as the commission of a new offense. The
Defendant contends that revocation on these grounds violated due process because they
were not contained in the probation violation report. Because the Defendant raises this
issue for the first time on appeal, she has waived appellate review, absent plain error. In
order for us to find plain error: (a) the record must clearly establish what occurred in the
trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely affected; (d) the accused did
not waive the issue for tactical reasons; and (e) consideration of the error is “‘necessary
to do substantial justice.’” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). The presence of
all five factors must be established by the record before we will recognize the existence
of plain error, and complete consideration of all the factors is not necessary when it is
clear from the record that at least one factor cannot be established. Id. at 283.

        Indeed, the revocation of probation based on grounds not alleged and noticed to
the defendant is a violation of due process. See State v. Chad Allen Conyers, No. E2004-
00360-CCA-R3CD, 2005 WL 551940, at *4 (Tenn. Crim. App. Mar. 9, 2005) (internal
citations omitted). The record clearly shows that the allegations relied upon by the trial
court were not included in the probation violation report or the warrant. However, the
record does not show the circumstances of the “amendment” repeatedly referenced by the
trial court in its oral ruling. Moreover, the Defendant stipulated to the new conviction
and conceded that it served as grounds to violate her probation during the hearing.
Finally, we are unable to discern whether the Defendant waived her objection based on
notice for tactical reasons. Under these circumstances, we are unable to recognize plain
error. Accordingly, the Defendant is not entitled to relief.

                                     CONCLUSION

       Based on the foregoing reasoning and analysis, the judgment of the trial court is
affirmed.


                                             ____________________________________
                                             CAMILLE R. MCMULLEN, JUDGE




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