            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                           MARCH 1999 SESSION
                                                               FILED
                                                            August 13, 1999
STATE OF TENNESSEE,            *      No. 02C01-9802-CR-00041
                                                           Cecil Crowson, Jr.
      Appellee,                *      SHELBY COUNTY      Appellate Court Clerk

VS.                            *      Hon. Joseph B. Dailey, Judge

CLIFFORD W. JACKSON,           *      (Probation Revocation)

      Appellant.               *




For Appellant:                        For Appellee:

Marvin E. Ballin, Esq.                John Knox Walkup
Mark A. Mesler, Esq.                  Attorney General and Reporter
Ballin, Ballin & Fishman, P.C.
200 Jefferson Avenue, Suite 1250      J. Ross Dyer
Memphis, TN 38103                     Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      Lee V. Coffee
                                      Assistant District Attorney General
                                      Criminal Justice Center, Third Floor
                                      201 Poplar Avenue
                                      Memphis, TN 38103




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The defendant, Clifford W. Jackson, pled guilty to unlawful possession

of marijuana with the intent to sell or deliver, a Class D felony. The trial court

imposed a Range I sentence of two years. The sentence was suspended and the

defendant was granted a probationary term of three years. Approximately six

months later, the trial court revoked probation.



              In this appeal of right, the defendant presents the following issues for

review:

              (I)    whether lack of proper notice of probation
                     revocation deprived the defendant of due process;
                     and

              (II)   whether the trial court erred by revoking probation
                     based solely on the defendant's lack of candor.


              We affirm the judgment of the trial court.



              At the initial sentencing hearing, the defendant testified that he and his

co-defendant, Terry Lewis, decided to visit friends at Kentucky State University. The

defendant, who drove his vehicle, stated that he was aware that Lewis had packed

"something" in the car but claimed that he did not learn the substance was

marijuana until well into the trip. Lewis was driving when a Memphis police officer

stopped them for speeding. When the officer noticed that the Lewis was nervous

and did not make eye contact, he asked to search the vehicle. Lewis refused the

officer's request but a trained police dog alerted the officer to the presence of illegal

drugs. Subsequently, the officers discovered over twelve pounds of marijuana. At

the sentencing hearing, the defendant testified that he was embarrassed about the

incident, that he had used poor judgment, and that a felony conviction would be

detrimental to his career in social work. On cross-examination, the defendant


                                            2
denied telling the investigating officers that he and Lewis had purchased the

marijuana for $500.00 per pound and planned to sell it in Kentucky for a profit. The

defendant contended that he had not actually discussed with Lewis how much profit

he might realize but had estimated some $2,000.00.



             The defendant, a Texas resident, had attended Rice University on an

athletic scholarship and, after graduating in 1993, had obtained work as a mental

health, mental retardation aide for the State of Texas. He lived alone and supported

himself. He admitted that he had been previously charged with credit card fraud but

claimed that the charge had been dismissed.



             Although the co-defendant Lewis failed to appear at the sentencing

hearing, the trial court chose to sentence the defendant at that time:

             I have some real concerns with [the defendant's]
             testimony today. I don't think he's been as forthcoming
             with the truth as he could have been. When you were
             first questioning him he seemed to indicate ... that he had
             no idea what was in the car, when it got in there, where
             he was going, anything at all about this activity.
                      And only during cross-examination did it slowly
             begin to come out that, well, yes, he did know what was
             in there, he did know it was marijuana, he did have some
             general idea of how much money he was going to make
             on it.
                                            ***
                      But as far as actually admitting to participating in
             this enterprise, he did as much as he could to deny it. ...
             He denied everything. So he only admitted to as much
             as he had to given the factual circumstances under which
             he was arrested. So I'm not really impressed with his
             testimony today.
                                            ***
             I will, reluctantly and against my better judgment, but
             because of your employment, educational background,
             lack of criminal history, grant the request for probation....



              In September 1997, the trial court conducted the sentencing hearing

for Lewis. After Lewis testified, the proceedings were continued due to the trial

                                          3
judge's concern over discrepancies in the testimony of the two men regarding the

extent of the defendant's involvement in the offense. At that point, the attorney who

had represented both the defendant and Lewis filed a motion to withdraw due to the

likely conflict of interest. The trial court ordered the defendant and Lewis to appear

for a second hearing, each with substitute counsel.



             While the pleadings are not in the record, the state apparently filed a

petition to revoke the defendant's suspended sentence. At the January 12, 1998,

revocation hearing, Lewis testified that he and the defendant had each invested in

six pounds of marijuana and had planned to sell it for a profit in Kentucky. Lewis

claimed that he had personally obtained the marijuana from a woman in Texas. He

stated that he acquired his share on credit and that the defendant paid roughly

$2,000.00 for the other six pounds.



              The defendant revealed that at his initial sentencing hearing he had

tried to minimize his role in the offense and that some of his earlier testimony may

have been misleading to the extent of his involvement. While conceding that he had

not been entirely forthcoming as to the level of his participation, he nevertheless

maintained that he had truthfully answered the questions asked of him. Upon

further questioning by the trial judge, the defendant ultimately acknowledged that he

had not been truthful about how the marijuana was obtained, when he became

aware of its presence in his car, or what plans the two men had about selling it.



              The trial court revoked probation, ruling as follows:

              [T]here is no question that [the defendant] left the
              impression and intended to leave the impression that it
              was Mr. Lewis from start to finish ... and that it was all a
              big surprise to him.
                      And it wasn't until Mr. Lewis came in a month later
              for his hearing and he testified as he did that the other

                                           4
              side of the coin was revealed....
                                              ***
              ... [H]e knew full well what was going on. He was in this
              venture as fully as Mr. Lewis was. And he was just
              unwilling ... to tell the truth with regard to his participation
              and what was going on.
                       And it is tragic because he has a good job,
              educated at ... one of the finest schools in the country, a
              lot of potential. But, doggone it, you've got to tell the
              truth. That's the bottom line and that's the first step....
                       It was apparent to me at the [initial sentencing
              hearing] that everyone ... was interested in finding out
              what the truth was. And he was dancing around it all
              day. And I expressed at that time real reservations about
              his honesty and his candor. But for all the other reasons
              I ... reluctantly put him on probation. But I'm sure not
              going to today. He's going to serve this ... two-year
              sentence at the penal farm.



                                              I

              The defendant contends that the trial court failed to follow the proper

procedures in revoking his probation. In particular, he complains that the trial court

failed to provide adequate notice and thus deprived the defendant of due process.

See Practy v. State, 525 S.W.2d 677 (Tenn. Crim. App. 1974). The state asserts

that the trial judge's order allowing the defendant's initial trial counsel to withdraw

served as written notice to the defendant. While conceding that the trial court did

not follow the procedure set forth in Tenn. Code Ann. § 40-35-311(a), the state

contends that the defendant had adequate notice of the revocation hearing.



              Following its ruling, the trial court addressed defense counsel

regarding the adequacy of the notice:

              Trial Court:   I will state this so that the record is clear if
                             this does go up. ... Your client was on
                             notice with regard to the purpose of this
                             hearing.
              Counsel:       Oh, I don't doubt that, Your Honor.
                                              ***
              Trial Court:   [The defendant] made one or two
                             appearances in Memphis after the
                             September hearing involving the co-

                                             5
                            defendant for purposes of allowing him to
                            retain separate counsel. And it's been
                            reset a couple of times until today. So that
                            he has had ample time, I believe, to
                            prepare for today's hearing. And certainly
                            no request was made for additional time to
                            prepare. ... I ordered copies of the
                            transcripts of both hearings so that
                            everyone had access to the transcripts to
                            review for today. And no objection was
                            ever lodged at any of the previous hearings
                            or today with regard to the procedures that
                            were being followed with regard to re-
                            opening the issue of probation and the
                            appropriateness of probation.



              The statutes governing revocation procedures provide, in pertinent

part, as follows:

              Revocation of suspension of sentence.--The trial judge
              shall possess the power, at any time within the maximum
              time which was directed and ordered by the court for
              such suspension, after proceeding as provided in §
              40-35-311, to revoke and annul such suspension....

Tenn. Code Ann. § 40-35-310.

              Procedure to revoke suspension of sentence or
              probation.--(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
              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 such trial judge's
              hand a warrant for the arrest of such defendant as in any
              other criminal case....

Tenn. Code Ann. § 40-35-311.



              A defendant who is granted probation has a liberty interest and is

entitled to due process before any revocation. Practy, 525 S.W.2d at 682. Certain

procedural requirements must be met. See Gagnon v. Scarpelli, 411 U.S. 778

(1973); State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993). These include: (1)

written notice of the claimed violation of probation; (2) disclosure to the probationer


                                           6
of the evidence against him; (3) opportunity to be heard in person, to present

witnesses, and to introduce documentary evidence; (4) the right to confront and

cross-examine adverse witnesses; (5) a "neutral and detached" tribunal; and (6) a

written statement by the finder of fact as to the evidence relied on and the reasons

for revocation. Strict rules of evidence do not apply; reliable hearsay may be

permitted. Practy, 525 S.W.2d at 680.



              The defendant asserts that he was deprived of proper notice because

the trial court failed to follow the procedures in Tenn. Code Ann. § 40-35-311(a).

This court has ruled that actual notice satisfies the constitutional due process

requirements for revocation of probation. State v. Peck, 719 S.W.2d 553, 556-57

(Tenn. Crim. App. 1986); State v. Carden, 653 S.W.2d 753, 754-55 (Tenn. Crim.

App. 1983); Stamps v. State, 614 S.W.2d 71, 73-74 (Tenn. Crim. App. 1980). The

record demonstrates that although no warrant was issued for the arrest of the

defendant, he was aware that the hearing had been scheduled and that the grounds

for the hearing arose from discrepancies between his testimony and that of co-

defendant Lewis. Those discrepancies resulted in the withdrawal of defense

counsel. Transcripts of their testimony were made available. In a written order

provided to the defendant, the trial court permitted defense counsel to withdraw,

required the defendant to appear, and advised him to retain new counsel. The

defendant traveled to Tennessee on two occasions thereafter to secure counsel and

attend proceedings. At the conclusion of the revocation hearing, defense counsel

conceded that the defendant had understood the nature of the proceedings. From

all of this, we must conclude that the notice provided, while not in accord with the

procedures set forth in Tenn. Code Ann. § 40-35-311(a), was sufficient to satisfy

any due process concerns.




                                           7
                                           II

               Next, the defendant contends that the trial court did not have grounds

to revoke his probation. The state, of course, takes a contrary position.



               The trial court is authorized to revoke probation upon notice of any

breach of the laws of the state. Tenn. Code Ann. § 40-35-311(a). Under this

statute, the authority to revoke the suspended sentence arises when the trial court

becomes aware of the defendant's criminal conduct. State v. Stubblefield, 953

S.W.2d 223, 225 (Tenn. Crim. App. 1997). A trial court may revoke probation on

the basis of criminal acts that a defendant committed before being placed on

probation if the trial court was unaware of the acts at the time the sentence was

imposed. Id. A judgment of revocation cannot be disturbed unless the trial court

abuses its discretionary authority. State v. Williamson, 619 S.W.2d 145, 147 (Tenn.

Crim. App. 1981). Here, the trial court revoked probation because the defendant

had provided untruthful testimony during the sentencing hearing and again at the

revocation hearing. A false statement made under oath with intent to deceive

constitutes perjury and is a breach of the laws of this state. Tenn. Code Ann. § 39-

16-701. Although the defendant has not been charged with perjury, the law clearly

requires a defendant to tell the truth at a sentencing hearing. While doubtful of the

truthfulness of the defendant's testimony at the conclusion of the initial sentencing

hearing, the trial court was uncertain that the testimony was false until the co-

defendant Lewis testified some time later. W hen confronted, the defendant finally

acknowledged his dishonesty. Thus, the trial court was warranted in revoking

probation upon the determination that the defendant had committed a criminal act

by testifying untruthfully.



               The statute also authorizes revocation of a suspended sentence upon


                                           8
a finding that a probationer violated a condition of probation. Tenn. Code Ann. § 40-

35-311(a). Because conditions of probation are not established prior to its grant,

due process principles would generally prevent a trial court from revoking a

suspended sentence due to conduct constituting a violation of the conditions of

probation which occurred prior to imposition of the sentence. See Stubblefield, 953

S.W.2d at 225.

              However, revoking probation based upon criminal acts a
              defendant committed before being placed on probation
              does not implicate these due process concerns because,
              unlike other conditions of probation that may be imposed,
              the defendant is deemed to have notice that his or her
              conduct must conform to the requirements of the law
              from the time of the law's enactment.

Id. In consequence, the trial court was also authorized to revoke the defendant's

probation on the basis that he violated a condition of probation.



              In our view, the defendant, by lying under oath to the trial court in an

apparent attempt to receive a more lenient sentence, committed both a breach of

the laws of this state and of the conditions of probation. The trial court did not

determine conclusively that the defendant had been untruthful until hearing Lewis'

testimony approximately one month after sentencing the defendant. In

consequence, revocation of the suspended sentence was warranted.



              Accordingly, the judgment of the trial court is affirmed.




                                          __________________________________
                                          Gary R. Wade, Presiding Judge




                                           9
CONCUR:



________________________________
Joseph M. Tipton, Judge



________________________________
Thomas T. W oodall, Judge




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