                                                                                           08/23/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  May 29, 2019 Session

            STATE OF TENNESSEE v. CHARLES E. MASON, JR.

                   Appeal from the Circuit Court for Cocke County
                         No. 6500     James L. Gass, Judge
                      ___________________________________

                           No. E2018-01310-CCA-R3-CD
                       ___________________________________


The Defendant, Charles E. Mason, Jr., pled guilty to four counts of aggravated assault
and one count of aggravated stalking charged in three separate indictments and received
an aggregate sentence of twenty years to be served on probation. The trial court found
the Defendant in violation of his probation for three convictions of aggravated assault and
for aggravated stalking and ordered him to serve these sentences in confinement. The
Defendant appeals, asserting that the trial court erred in revoking his probation and that
the trial court erred by not including graduated sanctions under Tennessee Code
Annotated section 40-28-304 when it reinstated his probation approximately six months
prior to the instant violation. We conclude that the trial court did not abuse its discretion
in revoking the Defendant’s probation and that the issue regarding graduated sanctions
has been waived. We affirm the trial court’s judgment.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Randall E. Reagan (on appeal) and Troy L. Bowlin, II (at hearing), Knoxville, Tennessee,
for the appellant, Charles E. Mason, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Jimmy B. Dunn, District Attorney General; and William Brownlow
Marsh and Charles L. Murphy, Assistant District Attorneys General, for the appellee,
State of Tennessee.


                                        OPINION
                     FACTUAL AND PROCEDURAL HISTORY

       The procedural history of this case is somewhat convoluted, and we rely on the
record on appeal and on two prior appeals before this court in summarizing the facts
related to the issues before us. See State v. Charles Edward Mason, Jr., No. E2017-
01050-CCA-R3-CD (Tenn. Crim. App. Dec. 14, 2017) (order granting motion for
voluntary dismissal of probation revocation appeal); State v. Charles Edward Mason, Jr.,
No. E2015-01936-CCA-R8-CO (Tenn. Crim. App. Jan. 6, 2016) (order affirming denial
of bond); see also State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009) (a court may take
judicial notice of an earlier proceeding in the same case); Tenn. R. Evid. 201(b), (c).

       On June 29, 2015, the Defendant was indicted in case number 6500 for three
counts of attempted first degree murder, three counts of aggravated assault, and one count
of reckless endangerment committed against three victims on or about March 22, 2015.
The factual basis for these charges was that the three victims drove a vehicle onto the
Defendant’s property and the Defendant fired shots, wounding two of the victims. The
Defendant was released on bond.

       On September 9, 2015, the Defendant was arrested for new offenses arising out of
the Defendant’s belief that Mr. Pat Proffitt or his son, Mr. Jessie Proffitt, had injured the
Defendant’s dog by pouring bleach or gasoline in the dog’s ears. The Defendant began a
campaign of telephone harassment against sixty-six-year-old Mr. Pat Proffitt, repeatedly
threatening to kill him, his wife, and other members of his family. Mr. Pat Proffitt’s son
Mr. Benjamin Proffitt attempted to intervene and agreed to meet the Defendant at the
Defendant’s home to end the conflict with a physical fight. When Mr. Benjamin Proffitt
arrived at the end of the driveway, the Defendant fired a gun at him from approximately
130 yards away. The Defendant was ultimately charged with aggravated assault against
Mr. Benjamin Proffitt in case number 6893 and with harassment and aggravated stalking
of Mr. Pat Proffitt in case number 6894. While in custody awaiting further proceedings,
the Defendant was beaten by fellow inmates and suffered severe injuries, including
subdural hematoma. See State v. Charles Edward Mason, Jr., No. E2015-01936-CCA-
R8-CO (order).

       At a hearing to revoke the Defendant’s bond held on September 24, 2015, the
State presented testimony that the Defendant was attempting to purchase weapons while
making threats against the lives of individuals at the prosecutor’s office, and the State
introduced an audio recording of the Defendant threatening the victim-witness
coordinator, the District Attorney General, and the Assistant District Attorney General
over the telephone. See id.



                                            -2-
       The Defendant entered guilty pleas on February 26, 2016, to three counts of
aggravated assault in case number 6500, one count of aggravated assault in case number
6893, and one count of aggravated stalking in case number 6894. The remaining counts
charging attempted first degree murder, reckless endangerment, and harassment were
dismissed. The Defendant agreed to plead guilty as a Range II offender, with an agreed
sentence of ten years for each aggravated assault conviction and two years for the
aggravated stalking conviction. The sentences stemming from the three aggravated
assaults in case 6500 were to run concurrently with one another, and the sentences
stemming from the offenses committed while on bond were to run concurrently with one
another, for an effective sentence of twenty years, with credit for time served and the
remainder to be served on supervised probation.

       On November 7, 2016, a warrant was issued against the Defendant for violation of
his probation after a search conducted at his residence revealed ammunition, an
improperly charged ankle monitor, an absent transdermal patch, and drugs, including
methamphetamine. On April 21, 2017, the trial court revoked the Defendant’s probation
and ordered him to serve his sentence in confinement. This order was the subject of an
appeal which was subsequently voluntarily dismissed.

        According to defense counsel’s argument at the 2018 revocation hearing, the
Defendant subsequently sought relief in the trial court based on the allegation that the
evidence used to support the revocation should have been suppressed. On January 18,
2018, the trial court entered an order granting a writ of error coram nobis and ordering
the Defendant’s immediate release to supervised probation. The order provided that it
would “replace[] any previous Orders regarding [the Defendant’s] conditions of
probation as well as previous judgments regarding a Violation of Probation warrant
issued and executed on November 7, 2016.” The terms of the probation included
restrictions on the Defendant’s travel and on his use of any narcotics or opiates without
court approval.

       On February 26, 2018, a warrant and a probation violation report were issued,
alleging that the Defendant had failed to report as instructed to his probation officer and
had failed to submit to drug screening. On March 26, 2018, a second warrant,
accompanied by a second report, was issued, alleging that when the Defendant was
apprehended on March 13, 2018, he tested positive for amphetamine, methamphetamine,
buprenorphine, benzodiazepine, morphine, and cocaine. Both probation violation reports
noted that the Defendant’s probation officer asked him to report to complete a missing
risk and needs assessment and that the Defendant did not provide a urine sample when he
reported to complete the assessment.



                                           -3-
       The Defendant moved to be released on bond and permitted to enter into an
inpatient drug treatment facility located out of the state. The trial court held a bond
hearing, and the parties subsequently agreed that testimony from the bond hearing could
be considered for the purposes of the revocation hearing.

       Mr. Daniel Kerr, the Defendant’s probation officer, testified regarding the
violations and the Defendant’s request to receive drug treatment in another state. Mr.
Kerr stated that the Defendant missed a scheduled appointment because he was
hospitalized with kidney stones. When the Defendant reported on February 15, 2018,
Mr. Kerr asked him to provide a urine sample. The Defendant was unable to provide a
sample over the course of three hours. He requested a hair test or catheterization, but Mr.
Kerr’s supervisor told him that those options were not available and that the Defendant
should be instructed to return the following day. The Defendant did not report the
following day, and repeated attempts to contact him were unsuccessful. The Defendant
eventually returned Mr. Kerr’s calls on the Sunday before Mr. Kerr swore out the
warrant. The Defendant told Mr. Kerr that he felt that he should not be on probation, that
he did not believe he was guilty, that his attorney would overturn his convictions, and
that he did not plan to report in the future. After his arrest, he tested positive for
numerous drugs.

        Mr. Kerr stated that he would agree to have the Defendant placed in inpatient
rehabilitative treatment only if he were transported directly from the jail to the treatment
facility because the Defendant did not appear to acknowledge that he had to obey the
rules of probation. Mr. Kerr testified that if the Defendant were at an inpatient facility in
another State for ninety days, his probation supervision would have to be transferred.
Any transfer would depend on discretionary acceptance by the receiving State and could
not take place while the Defendant had a pending violation.

        Mr. Coley Willis, a treatment consultant with American Addiction Centers, stated
that he had interviewed the Defendant and that the Defendant had been accepted at a
facility in Florida, where he would receive multiple kinds of therapy aimed at
rehabilitation. Mr. Willis was able to arrange for transportation to the facility and could
also provide the Defendant’s probation officer with weekly or daily reports, provide drug
screenings, and meet other probation requirements. Mr. Willis acknowledged that if the
Defendant wished to leave the Florida facility, he would be able to do so at will.

       The Defendant testified that he had been housed in prison in a privately run
Hardeman County facility where drugs were very readily available and that he was “more
addicted to drugs when [he came] out of prison than [he had] ever been in [his] entire
life.” He acknowledged that he had refused to report and stated he would not have been
able to pass a drug test at the time. He acknowledged his addiction and stated that he
                                            -4-
wished to try Vivitrol treatment, which had a high rate of success. He added that he had
been admitted to a treatment program in Knoxville if the court did not wish to send him
to Florida. He had attempted thirty-day rehabilitation on four prior occasions.

       Regarding the circumstances of the offenses, the Defendant stated that the offenses
against the Proffitts stemmed from the poisoning of his dog and that the three aggravated
assaults took place after he was threatened with a knife and consequently shot into the
car. Regarding the shooting, he said, “I was very [—] should I say [—] nice in doing so
by shooting where I did.” He also noted that he believed his pleas were the result of
prosecutorial misconduct. He stated that all of his criminal history was related to his
addiction.

       The trial court denied bond, noting that the Defendant’s revocation hearing was
nineteen days away and that the Defendant might pose a danger to the community based
on the nature of his past crimes.

       At the revocation hearing, the Defendant agreed to stipulate that he was in
violation of his probation as alleged in the warrants dated February 26 and March 26,
2018. The parties agreed that the warrant gave notice that the Defendant had violated his
three ten-year, concurrent probationary sentences in case number 6500 and the two-year,
consecutive probationary sentence in case number 6894.

        The State called Mr. Pat Proffitt, who testified that he had known the Defendant
all the Defendant’s life and that the Defendant had called him numerous times,
threatening his life and threatening to cut his wife’s throat. He stated that he was
terrorized because he knew the Defendant had previously shot two people and had tried
to buy automatic weapons. He acknowledged that it was possible that on a prior
occasion, he had not testified that the Defendant threatened to cut his wife’s throat.

       The Defendant gave an allocution at the revocation hearing. He reiterated that the
prison in which he was housed was infested with drugs. He noted grievances including
an illegal search, a violation of attorney-client privilege, and strict probation conditions
including no opioid medication without a court order. The Defendant stated that he had
experienced kidney stones while in custody but had not received appropriate treatment,
being transferred to Riverbend Maximum Security Institution and segregated instead of
being housed in a medical facility. He also stated that Mr. Kerr had previously testified
incorrectly. The Defendant stated that he was remorseful for his offenses and would
follow the terms of any probationary sentence. He testified that he had experienced a
religious awakening and wanted a chance to recover from addiction.



                                           -5-
        The trial court ordered the Defendant to serve the twelve-year sentence, consisting
of the three concurrent ten-year sentences for aggravated assault in case number 6500 and
the consecutive two-year sentence in case number 6894, in confinement. The court found
that the aggravated assaults were crimes of violence and that the aggravated stalking
involved intimidation. It noted that the Defendant had been granted an alternative
sentence but had violated his probation. While the trial court commended the
Defendant’s spiritual awakening, it expressed concern regarding the Defendant’s
continued animosity toward those involved in his offenses and toward the prosecution.
The trial court observed for the record that the Defendant was entitled to and should have
received medical treatment while in prison. The court found that the Defendant had
violated the conditions of his release after having had a chance at probation, and it
ordered him to serve the aggregate twelve-year sentence in prison. The Defendant
appeals.

                                        ANALYSIS

                                I. Revocation of Probation

       The Defendant contends that the trial court erred in revoking his probation and
sentencing him to confinement. In particular, the Defendant argues that because the
violations were technical violations, the trial court abused its discretion in not considering
an alternative sentence, and he contends that the trial court erred in not procuring a risk
and needs assessment. The State responds that the Defendant is not entitled to relief, as
both the decision to order confinement and the decision to obtain a risk and needs
assessment are discretionary. We agree that the trial court did not abuse its discretion.

       When a trial court finds by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the probation. T.C.A. §
40-35-311(e)(1). The decision to revoke probation lies within the trial court’s discretion.
State v. Walker, 307 S.W.3d 260, 263 (Tenn. Crim. App. 2009). To show an abuse of
discretion, the defendant must establish 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.’” Id. at 263-64 (quoting State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App.
1994)). The trial court’s factual findings and credibility determinations made in a
revocation hearing carry the weight of a jury verdict. State v. Beard, 189 S.W.3d 730,
735 (Tenn. Crim. App. 2005).

       When the trial court has found a violation of probation, it can: “‘(1) order
incarceration; (2) cause execution of the judgment as it was originally entered; or (3)
extend the remaining probationary period for a period not to exceed two years.’” Id.
(quoting State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999)); see T.C.A. §§ 40-35-310,
                                            -6-
-311, -308. The trial court may impose a community-based alternative sentence
“provided, that the violation of probation and suspension is a technical one and does not
involve the commission of a new offense.” T.C.A. § 40-35-311(e)(1)(B). “The
determination of the proper consequence of the probation violation embodies a separate
exercise of discretion.” State v. Patsy Lynn McCoy, No. M2011-00006-CCA-R3-CD,
2011 WL 6916227, at *3 (Tenn. Crim. App. Dec. 28, 2011) (citing Hunter, 1 S.W.3d at
647); State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007)).

        We note initially that the Defendant stipulated that he had violated the conditions
of his probation. Accordingly, the trial court did not err by finding by a preponderance of
the evidence that a violation had occurred. See State v. Johnson, 15 S.W.3d 515, 518
(Tenn. Crim. App. 1999) (the defendant’s concession that he had violated the terms of his
probation supported the court’s conclusion that he had violated probation), holding
modified by State v. Brys Andrew Hensley, No. E2012-00812-CCA-R3-CD, 2013 WL
793579, at *4 (Tenn. Crim. App. Mar. 4, 2013). The Defendant contends that the trial
court failed to consider a community-based alternative sentence.1 He cites to Tennessee
Code Annotated section 40-35-310, which states,

       (b) In addition to the power to restore the original judgment when
       suspension of sentence is revoked, the trial judge may also resentence the
       defendant for the remainder of the unexpired term to any community-based
       alternative to incarceration authorized by chapter 36 of this title; provided,
       that the violation of the defendant’s suspension of sentence is a technical
       one and does not involve the commission of a new offense.

T.C.A. § 40-35-310(b); see also T.C.A. § 40-35-311(e)(1)(B).

        This court has held repeatedly that “an accused, already on probation, is not
entitled to a second grant of probation or another form of alternative sentencing.” State v.
Jeffrey A. Warfield, No. 01C01-9711-CCA-00504, 1999 WL 61065, at *2 (Tenn. Crim.
App. Feb. 10, 1999). Moreover, there is no requirement that the trial court consider other
sentencing options when revoking a defendant’s probation. State v. Joshua Daniel
Brookshire, No. E2011-01658-CCA-R3-CD, 2012 WL 627165, at *3-4 (Tenn. Crim.
App. Feb. 28, 2012); State v. George Vincent Ware, No. E2010-00141-CCA-R3-CD,

       1
         The parties dispute whether the violation was a technical violation or constituted a new
offense. See T.C.A. § 40-35-310(b), -311(e)(1)(B) (noting that a community-based alternative
sentence is permissible upon a finding of a technical violation of probation). The warrants here
alleged only violations of the probationary terms and did not allege that the Defendant had
committed any new offense, but we conclude that determination of the issue is not necessary for
review because the trial court did not in any event abuse its discretion in ordering confinement.
                                              -7-
2010 WL 3448057, at *3 (Tenn. Crim. App. Sept. 1, 2010). The Defendant requested the
trial court to reinstate his probation, and the trial court considered renewing the
Defendant’s probation but, in its discretion, opted to order him to serve the sentence in
confinement instead. Accordingly, the Defendant is not entitled to relief on this ground.

       The Defendant also asserts that the trial court erred in not requesting a validated
risk and needs assessment prior to ordering him to serve his sentence in confinement.
Tennessee Code Annotated section 40-35-311 addresses the use of a validated risk and
needs assessment by a trial court faced with a decision regarding probation revocation:

      (f) The court may consider the results of an offender’s validated risk and
      needs assessment in determining the appropriate disposition of the
      probation violation charge and may request an updated validated risk and
      needs assessment be performed.

T.C.A. § 40-35-311(f) (emphasis added). Accordingly, the decision to consider the
validated risk and needs assessment, as well as the decision to request an updated
assessment, is discretionary. We note that, at the revocation hearing, the Defendant never
requested the trial court to order an assessment to be completed or to rely on such an
assessment and that this claim is accordingly waived. See Tenn. R. App. P. 36(a). We
conclude that the trial court did not abuse its discretion in revoking the Defendant’s
probation.

                                II. Graduated Sanctions

        The Defendant also argues that the trial court erred in January 2018 when it
reinstated his probation without making the probationary terms subject to the graduated
sanctions outlined in Tennessee Code Annotated section 40-28-301 to -306. He asserts
that, had he been subject to the graduated sanctions, his probation would not have been
subject to revocation by the trial court according to a sanctions matrix. In his brief, the
Defendant argues that the failure to include the graduated sanctions in the terms of his
reinstated probation constituted an abuse of discretion. The State responds that he has
waived consideration of this issue and that the correct matrix would in any event have
required judicial determination of whether the Defendant’s probation should be revoked.
We conclude that any challenge to the terms of probation was waived by failure to raise it
in the trial court.

       The Defendant was initially placed onto probation on February 26, 2016. He was
subsequently found to have violated the conditions of his probation, but the revocation
was set aside due to a successful error coram nobis petition. On January 17, 2018, the
trial court entered an order which, by its terms, “replace[d] any previous [o]rders
                                           -8-
regarding [the Defendant’s] conditions of probation as well as previous judgments
regarding a Violation of Probation warrant issued and executed on November 7, 2016.”
The order was accompanied by a “Probation Order” which was signed by the Defendant
and which contained standard preprinted terms of probation as well as additional
restrictions on the Defendant’s movements and consumption of medication. The
“Probation Order,” which appears in a supplement to the record, does not contain any
language regarding graduated sanctions. Shortly after his reinstatement, the Defendant
violated the terms of his probation. During the revocation hearing, the Defendant never
advanced the position that his reinstatement to probation was flawed due to the absence
of graduated sanctions. The Defendant’s probation was revoked on June 18, 2018, and
he filed a notice of appeal on July 18, 2018. On appeal, the Defendant challenged the
terms of the January 17, 2018 order vacating the prior revocation and reinstating his
probation for failure to include graduated sanctions.

       We initially address our jurisdiction over this question. Tennessee Rule of
Appellate Procedure 3(b) allows for an appeal as of right from an order revoking
probation. We have addressed the arguments regarding revocation above. However, the
issue raised here does not relate to the trial court’s revocation of the Defendant’s
probation; instead, it is a challenge to the terms of his reinstatement to probation which
became effective January 17, 2018. A defendant in a criminal case may appeal the
manner of service of his sentence. T.C.A. § 40-35-401(a). A defendant’s challenge to
the sentence imposed may be based on the contention that it is inconsistent with the
purposes of sentencing set out in Tennessee Code Annotated sections 40-35-102 and
-103. T.C.A. § 40-35-401(b)(3). We conclude that the statutory provision permitting
appeal from the manner of service of a sentence conveys jurisdiction over the trial court’s
allegedly erroneous failure to include the graduated sanctions in the order.

       The State asserts that the Defendant has waived any claim regarding the absence
of graduated sanctions. The record demonstrates that the Defendant never once asserted
during any of the revocation proceedings that it was error for the trial court to address his
probation violation because he should have had the violation reviewed under the
graduated sanctions prescribed by the PSA. The Defendant instead attempted to
convince the trial court that he would be able to abide by any future probationary terms
and requested to be placed back onto probation. The failure to raise this issue in the trial
court amounts to waiver. See State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App.
1996) (“Issues raised for the first time on appeal are considered waived.”).

        We also note that the statute on which the Defendant relies did not take effect
until January 1, 2017, after the offenses were committed and after the Defendant was
sentenced in this case. See 2016 Pub. Acts, ch. 906, § 17. “[T]he sentencing law in
effect at the time of the offenses [is] the proper framework for establishing the
                                            -9-
defendant’s sentences.” State v. Saint, 284 S.W.3d 340, 347 (Tenn. Crim. App. 2008).
The record does not reflect that the Defendant ever requested the trial court to consider
the new statute in reinstating his probation.2 See State v. Ronnie Brewer, No. M2016-
01651-CCA-R3-CD, 2017 WL 2472373, at *9 (Tenn. Crim. App. June 8, 2017)
(concluding that the defendant’s claim that he should have been sentenced under the
sentencing laws in effect during the time of his sentencing hearing rather than those in
effect at the time of the offense was waived when it was raised for the first time on
appeal); State v. Phillip David Howell, No. 02C01-9901-CC-00018, 1999 WL 1095673,
at *1 (Tenn. Crim. App. Oct. 31, 1999) (“Since the record in this case does not contain a
transcript of the guilty plea, we must assume that the state is correct in its argument that
defendant agreed to the challenged condition of probation.”).

       We note, moreover, that the Tennessee Supreme Court in State v. A.B. Price, Jr.
concluded that both this court and the trial court had erred in interpreting section -304 as
“forcing a transfer of power from the judiciary to the executive branch, at the direction of
the legislature, effective as of the time the notification provision is incorporated into a
judgment order.” 2019 WL 3282628, at *6. Instead, in reference to the requirement that
“the judge of the court having jurisdiction over the case shall determine the conditions of
community supervision, which shall include as a condition” the possible imposition of
graduated sanctions, T.C.A. § 40-28-304, the Tennessee Supreme Court described this
provision, without further elucidation, as “notification provision.” Id. Accordingly, the
Tennessee Supreme Court’s interpretation of the provision would appear to be at odds
with the Defendant’s assertion that the trial court was required to transfer power from the
judiciary to the executive branch, effective at the time of sentencing.

       We conclude that the issue has been waived by failure to raise it in the trial court,
and the Defendant is not entitled to relief.




       2
          The Tennessee Supreme Court’s recent decision in State v. A.B. Price, Jr., and Victor
Sims asserts that a defendant’s failure to challenge the inclusion of the graduated sanctions
provision does not amount to waiver in a case in which the defendant wishes to challenge the
authority of a person not a member of the judiciary to adjudicate a violation because such a
challenge would not become ripe until the violation was adjudicated. No. W2017-00677-SC-
R11-CD, 2019 WL 3282628, at *6, n.6 (Tenn. July 22, 2019). In this case, the Defendant does
not challenge the authority of the entity adjudicating the revocation, but only the applicability of
a statutory provision which did not become effective until after his offenses and initial
sentencing. We conclude that any claim the Defendant raises about the applicability of the
statutory provision is subject to waiver.

                                              - 10 -
                             CONCLUSION

Based on the foregoing reasoning, we affirm the judgment of the trial court.




                          _____________________________________________
                            JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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