         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 20, 2008 Session

         STATE OF TENNESSEE v. CHARLES HOPSON STEWART

                      Appeal from the Circuit Court for Warren County
                        No. F-11090    Larry B. Stanley, Jr., Judge



                    No. M2008-00474-CCA-R3-CD - Filed October 6, 2008


The defendant, Charles Hopson Stewart, was convicted on his guilty pleas of four counts of
possession of cocaine with intent to deliver, a Class B felony. He was sentenced to nine years for
each offense, to be served on split confinement of thirty days of jail on the weekends and probation,
with the sentences imposed concurrently. His probation was revoked, and the court also denied a
motion to modify his sentence. On appeal, the defendant contends: (1) that the trial court erred in
allowing the drug court team to determine whether his probation should be revoked and what
consequence should follow the revocation, (2) alternatively, that the decision of the drug court team
that the defendant should serve his sentence in confinement was too harsh given the facts and
circumstances of the case, and (3) that the trial judge should be disqualified from presiding on
remand. We reverse the judgment of the trial court and remand for a new revocation hearing, at
which another judge shall preside.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed,
                                      Case Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR .,
and CAMILLE R. MCMULLEN , JJ., joined.

David L. Raybin and Sarah S. Richter, Nashville, Tennessee (on appeal), and Robert W. Newman,
McMinnville, Tennessee (at trial), for the appellant, Charles Hopson Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Lisa Zavogiannis, District Attorney General; and Thomas J. Miner, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

      The defendant was placed in the drug court program as a condition of his sentences.
Although the transcript of the sentencing hearing is not included in the appellate record, the
judgments filed on November 20, 2007, indicate that the sentences were imposed on October 10,
2007. The defendant served the jail portion of his split confinement sentence beginning October 12,
2007, and was released on November 10, 2007. There is no revocation warrant in the record, but
we infer from facts recited in a trial court order that the defendant was charged with having violated
the terms of his probation because he was charged with the offense of stalking on January 24, 2008,
failed to obtain full-time employment, and had not been truthful with the drug court coordinator
about his whereabouts on January 24, 2008.

         The court conducted a revocation hearing on February 1, 2008. At the hearing, the court
questioned Brad Price and “Mr. Martin” under oath. Mr. Price informed the court that he met with
the defendant at the drug court office on January 24 for the defendant’s weekly appointment. Mr.
Price stated that at the conclusion of the appointment, he asked the defendant where he was going
and that the defendant stated he was going to work at Stewart’s Nursery. Mr. Price said that after
the defendant left the office, he received a call from Mr. Martin in which he learned that the
defendant was at the middle school, not Stewart’s Nursery. Mr. Martin informed the court that he
received a call from a state’s witness in the conviction proceedings who said he was being followed
by the defendant. Mr. Martin said he learned of the person’s and the defendant’s location, stopped
on the side of the road, waited until they passed him, and followed them approximately one and one-
half miles to the middle school parking lot. Mr. Martin said he had information that this was not the
first time the defendant had followed the witness.

        The defendant testified at the hearing that he had not used drugs since April 23, 2007. He
said he had participated in a twenty-day inpatient program and had graduated from the aftercare
program. He said he was presently involved in alcohol and drug classes three days per week and had
always passed the drug screenings that had been administered to him in the drug court program. He
said he had been performing the required community service. The defendant said that he had been
working at his father’s nursery but that he had been unable to find another job, despite having made
contacts with several businesses. He said he had been “everywhere” looking for a job and had
provided Mr. Price with documentation of his efforts.

        The defendant testified that he made a poor decision in following the man who had been a
state’s witness in his case. He said Mr. Price allowed him to “get a bite to eat” before going to work
and that as he was leaving a fast food restaurant, he saw the man and turned around. He said he had
no legitimate reason for doing so but that he did not speak to the man. He denied that he had
followed the person on any other occasion.

       The defense attempted to call other witnesses to testify about the defendant’s progress in his
drug rehabilitation and the drug court program. However, the trial court ruled that the witnesses’
testimony was unnecessary to its decision. The court found that the defendant had violated the terms
of probation and revoked his probation.

      On February 11, 2008, the defendant filed a motion to modify his sentence pursuant to
Tennessee Rule of Criminal Procedure 35, and the court conducted a hearing on February 26.
According to its order, the court treated this hearing both as one to allow further evidence from the


                                                 -2-
previous revocation hearing and as one for sentence modification under Rule 35. The court allowed
the defendant to present the witnesses it had previously declined to hear. Numerous family members
and friends testified about the defendant’s remarkable progress in drug rehabilitation, his efforts to
find a job in the face of physical limitations, his good character, and their support for him. At the
conclusion of the hearing, the court asked members of the drug court team who had been present
during the hearing to deliberate and submit a written recommendation to the court at a later date.
The court entered an order on February 28 stating that the drug court team “met without [the trial
court] and later presented their recommendation to the Court.” The team recommended that the
defendant “be terminated from the Drug Court Program to serve his original sentence.” The court
“affirm[ed] the ruling of the team.” Thus, the court terminated the defendant from the program and
denied the Rule 35 motion. This appeal ensued.

                                                  I

        The defendant claims that the trial court erred by delegating to the drug court team the
decision whether the defendant’s probation should be revoked and what sentence should be imposed
upon revocation. The state argues that the court properly exercised its discretion because it retained
the final decision-making authority.

         We note that although the defendant’s notice of appeal stated that it was an appeal from the
February 1 and February 28 orders of the trial court, the defendant’s brief does not attack the trial
court’s initial revocation at the February 1 hearing. His challenge is to the February 26 proceedings.
However, we first must determine the nature of those proceedings. The defendant’s motion which
precipitated that hearing was captioned “Motion to Modify Sentence” and asked for modification
of the sentence that was imposed following the revocation. The motion recited that there were
witnesses who the defense was not allowed to call at the previous hearing who were prepared to
testify about the positive impact of the drug court program on the defendant. The court stated at the
hearing

               . . . [Defense counsel], after I revoked [the defendant’s] sentence,
               asked me to consider hearing from family and friends. I decided to
               do that. I felt like with the seriousness of the offense that it was
               improper for me to exclude them from saying whatever they wanted
               to say. . . . [At the February 1 hearing] I did not let the family or
               anyone else testify unless they had something to say specifically about
               the incident that occurred. When [defense counsel] asked me to
               reconsider in letting these people testify, I thought it only fair to do
               so, and to give consideration to the Drug Court team because your
               opinion is valued by me. What I want you to do is by the end of
               business on Thursday, I would like a written recommendation from
               the other members of the Drug Court team. I am not going to
               participate in that. I have no thoughts or opinions on what you should
               do, should you decide that [the defendant] should come back with no


                                                 -3-
               sanctions whatsoever, or if he should be revoked and dismissed from
               the program or anything between, I do not care what your opinion is.
               I trust your judgment.

In its February 28 order, the court stated that the drug court team had met outside the presence of the
court and had recommended that the defendant be terminated from the program and serve his
original sentence. The court ruled, “This court affirms the recommendation of the team. The
Defendant is terminated from the Drug Court Program and the Defendant’s motion under Tennessee
Rules of Criminal Procedure Rule 35 is denied.” Having considered these facts, we believe the trial
court did not limit itself to the parameters of Rule 35 regarding modification of a previously imposed
sentence. Rather, we believe the trial court reopened for a new determination the issue of whether
the defendant’s probation should be revoked and the proper consequence for a revocation.

        We now turn to the defendant’s contention that the trial court erred in allowing the drug court
team to make the decision regarding revocation and sentencing. Tennessee Code Annotated section
40-35-311 vests in “the trial judge granting the probation and suspension of sentence, the trial
judge’s successor, or any judge of equal jurisdiction who is requested by the granting trial judge to
do so” the authority to revoke probation and determine the proper consequence following a
revocation. T.C.A. § 40-35-311. These decisions are within the discretion of the trial court. See
State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981) (holding that reversal on appeal
occurs upon showing of abuse of discretion).

       Further, in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1761 (1973), the United States
Supreme Court held that a probationer is entitled to due process when a state attempts to remove his
probationary status and have him incarcerated. Gagnon, 411 U.S. at 785-86, 93 S. Ct. at 1761-62.
A probationer’s due process rights include:

               (1)     written notice of the claimed violations of probation;
               (2)     disclosure to the probationer of evidence against him or her;
               (3)     opportunity to be heard in person and to present witnesses and
                       documentary evidence;
               (4)     the right to confront and cross-examine adverse witnesses
                       unless the hearing officer specifically finds good cause for not
                       allowing confrontation;
               (5)     a neutral and detached hearing body such as a traditional
                       parole board, members of which need not be judicial officers
                       or lawyers; and
               (6)     a written statement by the fact finders as to the evidence
                       relied on and reasons for revoking probation.

Gagnon, 411 U.S. at 786, 93 S. Ct. 1761-62; Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App.
1974).



                                                 -4-
         In Tennessee, the “neutral and detached hearing body” is statutorily prescribed to be the trial
judge. The statute does not give the trial judge the authority to consult outside entities or persons
in making its determination or to delegate the decision-making authority to another entity or person,
other than another trial judge. Based upon the statute, we hold that the trial judge violated the
defendant’s due process protections in allowing the drug court team to deliberate and make a
recommendation to the court about the disposition of a matter that was statutorily vested in the trial
judge’s authority. Further, the record in this case reflects that the trial judge not only received the
recommendation from the drug court team, it delegated the decision-making authority to the team.
In this regard, it is telling that the trial judge instructed the drug court team at the hearing, “I have
no thoughts or opinions on what you should do, should you decide that [the defendant] should come
back with no sanctions whatsoever, or if he should be revoked and dismissed from the program or
anything between, I do not care what your opinion is. I trust your judgment.” Thereafter, the judge’s
order stated that he “affirms the recommendation of the team.” Neither the transcript of the hearing
nor the order reflect that the trial judge engaged in its own deliberation of the proper disposition of
the case. The procedure followed in this case was outside the statutory procedure and authority of
the judge and deprived the defendant of due process. We hold that the defendant is entitled to a new
hearing.

                                                   II

         In the alternative to his first issue, the defendant contends that the sentence imposed by the
drug court team members was grossly disproportionate to the offense alleged. The problem with this
issue is that we are asked to review ultra vires determinations by a drug court team. Such is not our
obligation, and we will not do so.

                                                  III

       Finally, the defendant argues that a new judge should conduct the proceedings on remand.
The state has chosen not to address the merits of the defendant’s argument.

         The Code of Judicial Conduct requires that judges refrain from “ex parte communications,
or other communications made to the judge outside the presence of the parties concerning a pending
. . . proceeding[.]” Tenn. R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3.B.(7). The Code also
requires disqualification of a judge “in a proceeding in which the judge’s impartiality might
reasonably be questioned[.]” Tenn. R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3.E.(1).

       In the present case, the trial judge received communication outside the presence of the parties
concerning the matter and relied on that communication in disposing of the defendant’s case. We
conclude that on remand the case shall be assigned to another judge.




                                                  -5-
        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is reversed. The case is remanded for a revocation hearing before another judge.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, PRESIDING JUDGE




                                                -6-
