            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                         March 2, 2004 Session

                         STATE OF TENNESSEE v. CLAY JONES

                    Direct Appeal from the Circuit Court for Madison County
                          Nos. 00-685;00-686   Donald H. Allen, Judge



                        No. W2003-01205-CCA-R3-CD - Filed May 19, 2004


The Appellant, Clay Jones,1 appeals from the judgment of the Madison County Circuit Court
revoking his community corrections sentences. In May of 2001, Jones pled guilty to two counts of
sale of a counterfeit controlled substance. Pursuant to a negotiated plea agreement, Jones received
concurrent two-year sentences with placement in the Community Corrections Program. On October
22, 2002, a warrant was issued alleging violations of his behavioral contract. However, the warrant
only listed one indictment number. Following a revocation hearing, he was found in violation of his
community corrections sentences under both indictment numbers. On appeal, Jones raises the
following issues for our review: (1) whether, prior to waiver of his right to counsel and subsequent
inculpatory admissions at the revocation hearing, due process required the trial court to inform him
that he could be resentenced to consecutive terms if his sentences were revoked; (2) whether lack
of proper notice of revocation deprived him of due process; and (3) whether resentencing him to
consecutive terms was proper. After review, we affirm the trial court’s revocation of Jones’ sentence
in the case in which notice was received. However, with regard to revocation of his sentence in
which no notice was received, we find that the proceedings failed to afford fundamental due process
protections and reverse the trial court’s order of revocation.


   Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed in Part; Reversed in Part.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J.,
joined. JOE G. RILEY , J., filed a separate concurring opinion.

George Morton Googe, District Public Defender, Jackson, Tennessee, for the Appellant, Clay Jones.




        1
         The indictments reflect that the Appellant’s name is Clay Jones; however, on some documents in the record,
his name appears as Stanley Clay Jones or Stanley C. Jones. Our policy is to use the name as it appears on the
indictment.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E.
Williams, III, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun
Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                                  OPINION

                                           Factual Background

        On August 28, 2000, a Madison County grand jury returned two separate indictments against
the Appellant. Indictment number 00-685 charged the Appellant with sale and/or delivery of
counterfeit LSD on May 9, 2000, and indictment number 00-686 charged him with sale and/or
delivery of counterfeit methamphetamine on June 19, 2000. On an unspecified date, the Appellant
was also charged with facilitation of aggravated assault. Thereafter, pursuant to a negotiated plea
agreement, the Appellant pled guilty to two counts of sale of a counterfeit controlled substance, and
the charge for facilitating aggravated assault was dismissed. The Appellant, as a Range I standard
offender, was sentenced to two years on each count of sale of a counterfeit controlled substance, and
these sentences were to be served concurrently in the Community Corrections program.

        The Appellant’s Community Corrections case officer, Grace Bynum, submitted a request for
a violation warrant early in October of 2002.2 The warrant, which only listed indictment number 00-
685, alleged the following violations:

        1. Failed to remain home during curfew hours.

        2. Failed to remain employed. Mr. Jones has not held full time employment[.]

        3. Failed to pay costs, fines & restitution. Mr. Jones has never paid.

        4. Failed to report to the community corrections office as directed. Mr. Jones has
        failed to report on numerous occasions.

        5. Failed to pay supervision fees as ordered. Mr. Jones is in arrears $555.00 with
        said fees.

        6. Failed to report to health department for DNA testing.

On October 18, 2002, an addendum to the warrant was filed, alleging that:




        2
         This is apparent from her testimony at the revocation hearing. However, the warrant was not issued until
October 22, 2002, and the Appellant was not served with the warrant until February 12, 2003.

                                                      -2-
                Mr. Jones is in violation of Rule #12 which states, “Offenders will obey all
       of the laws of the State of Tennessee, United States, or any state in which he/she may
       be, as well as any municipal ordinances. Any violation of the law shall be reported
       to the case officer within 24 hours. This includes traffic violations. Failure to report
       will be a serious infraction of the rules.” Mr. Jones was arrested on 9-21-02 for
       Evading Arrest when McNairy County Deputy Lambert attempted to pick him up on
       Hardeman County warrants, # 89935 and # 89936, for Forgery and Theft.

This addendum contained both indictment numbers; however, there is no indication in the record that
this document was served on the Appellant.

        A hearing was held on February 18, 2003. At the hearing, the Appellant was informed of the
allegations against him and his rights, including his right to counsel. After questioning by the court,
the Appellant waived his right to counsel. The trial court then proceeded to hear testimony from the
Appellant and Bynum. The Appellant admitted “most” of the allegations were true, although he
disputed certain details. Following the testimony, the trial court found that the Appellant had
violated the terms of his behavioral contract in a substantial way, and an order was entered to that
affect on February 19, 2003. The trial court scheduled a resentencing hearing for March 20, 2003,
and ordered the preparation of a pre-sentence investigative report.

        On March 20, 2003, a sentencing hearing was commenced. On this same date, the Appellant
filed an affidavit of indigency seeking the appointment of an attorney. Following the Appellant’s
request, the trial court reconsidered the Appellant’s previous waiver of counsel and appointed
counsel to assist the Appellant with regard to sentencing determinations. The hearing was continued
until the next day. On March 21, 2003, the pre-sentence report was entered into evidence, and
testimony was heard from the Appellant concerning the various allegations in the warrant and
addendum. Concerning his failure to report his arrests for misdemeanor and felony evading arrest,
the Appellant testified that these charges were to be dismissed following his assistance with narcotics
officers in other investigations. The Appellant stated that he had discussed this arrangement with
Bynum and that she had approved his involvement. The trial court, concluding that this explanation
was implausible, reset the hearing again to hear testimony from Bynum concerning this matter.

        On April 14, 2003, Bynum testified that the Appellant had never discussed with her any
arrangement to assist narcotics officers. She stated that such an arrangement was “strictly against
policy” and required approval by the court. The court inquired if the Appellant had anything to say
in response to Bynum’s testimony, and the Appellant declined to make a statement, relying on his
privilege against self-incrimination. At the conclusion of the hearing, the trial court resentenced the
Appellant to consecutive two-year terms to be served in the Department of Correction, and he was
given credit for time served in the Community Corrections Program. This effective four-year
sentence was also ordered to be served consecutively to his eleven-month and twenty-nine-day




                                                 -3-
sentence for passing a worthless check in Hardeman County.3 The Appellant filed a notice of appeal
on May 13, 2003.4

                                                    ANALYSIS

I. Due Process

        A revocation hearing is described as a flexible, informal proceeding. Black v. Romano, 471
U.S. 606, 613, 105 S. Ct. 2254, 2258 (1985); State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993).
While the accused is not entitled to “the full panoply of procedural safeguards associated with a
criminal trial,” Black, 471 U.S. at 613, 105 S. Ct. at 2258, the Due Process Clause contained in the
Fourteenth Amendment to the United States Constitution and the Law of the Land provision
contained in Article I, Section 8 of the Tennessee Constitution require that the accused be afforded
certain basic rights. The minimum requirements mandated by the Due Process Clause include:

         (a) written notice of the claimed violations of [probation or] parole;

         (b) disclosure to the [probationer or] parolee of evidence against him;

         (c) opportunity to be heard in person and to present witnesses and documentary evidence;

         (d) the right to confront and cross-examine adverse witnesses (unless the hearing
         officer specifically finds good cause for not allowing confrontation);

         (e) a “neutral and detached” hearing body such as a traditional parole board, members
         of which need not be judicial officers or lawyers; and

         (f) a written statement by the factfinders as to the evidence relied on and reasons for
         revoking [probation or] parole.

Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62 (1973) (citing Morrissey v. Brewer,
408 U.S. 471, 489, 92 S. Ct. 2593, 2604)(1972); see also Wade, 863 S.W.2d at 408.

A. Statements of the Trial Court

       First, the Appellant argues “that his due process rights were violated since he was told by the
Court that if he admitted the violations his probation (sic) could be revoked and that he could be
ordered to serve this sentence or at least some portion of it in the Department of Corrections.”

         3
             This Hardeman County sentence was to be suspended after service of sixteen days on weekends.

         4
           The Appellant’s notice of appeal was prematurely filed as the judgments of conviction were not entered until
July 21, 2003. However, Rule 4(d), Tennessee Rules of Appellate Procedure, provides that a notice prematurely filed
is treated as having been filed after entry of the judgment from which the appeal is taken.

                                                         -4-
Specifically, he contends that, before the trial court permitted him to waive his right to an attorney,
due process required the trial court to inform him that he could be re-sentenced to consecutive two-
year terms. The Appellant compares the revocation proceedings to a guilty plea and, relying upon
State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1997), contends that the court was required to inform
him of the maximum penalty provided by law.

        Prior to the Appellant’s inculpatory admissions, the trial court informed the Appellant of the
allegations against him, his right to have an attorney assist in his defense, and his right to an
evidentiary hearing on the allegations. The trial court went on to explain:

               THE COURT: Now, I do want you to understand, too, that you can admit to
       these allegations, that is, you’d be pleading guilty to these violations that I’ve just
       gone over with you. But I do want you to understand that if you admit to these
       violations your probation could be revoked and you could be ordered to serve this
       sentence or at least some portion of this sentence in the Tennessee Department of
       Corrections. Okay?

                 So, with that being said, Mr. Jones how do you wish to proceed in this
       matter?

                 MR. JONES: Well, most of it’s true.

                 THE COURT: Most of it’s true? Is there some of it that’s not true?

                 MR. JONES: Yes, sir.

             THE COURT: All right. So, do you want to admit to some of these and deny
       some of these? Is that what you’re telling me?

                 MR. JONES: Yes, sir.

               THE COURT: All right. Well, do you want to have an attorney to represent
       you in this matter? It’s up to you.

                 MR. JONES: I’ll just admit to them. I’ll just admit to them.

               THE COURT: All right. Well, are you telling me you do not want to have
       an attorney represent you?

                 MR. JONES: No, sir.

After hearing testimony from the Appellant and his community corrections case officer, the trial
court determined that the Appellant had violated the terms of his agreement.


                                                 -5-
          Our supreme court, in State v. Griffith, 787 S.W.2d 340 (Tenn. 1990), held that “the
decision to resentence a defendant to a sentence greater than his original sentence does not . . .
violate the guarantees against double jeopardy.” Griffith, 787 S.W.2d at 342. The court, relying on
Tennessee Code Annotated sections 40-36-106(e)(2) and e(4),5 reasoned that:

         the sentencing of a defendant to a community based alternative to incarceration is not
         final, but is designed to provide a flexible alternative that can be of benefit both to
         the defendant and to society and allows the court to monitor the defendant's conduct
         while in the community corrections program. A defendant sentenced under the Act
         has no legitimate expectation of finality in the severity of the sentence, but is placed
         on notice by the Act itself that upon revocation of the sentence due to the conduct of
         the defendant, a greater sentence may be imposed. This being so, the decision to
         resentence a defendant to a sentence greater than his original sentence does not
         subject the defendant to multiple punishments for the same offense; rather, the
         practice reflects the need to alter the defendant's sentence in light of the fact that the
         court's initial sentence to a community based alternative to incarceration was not
         effective.

Id. Applying the rationale of Griffith and the mandates of Gagnon v. Scarpelli, we conclude that due
process does not require the trial court to inform a defendant of the maximum penalty provided by
law before permitting him to waive his right to an attorney.

       Additionally, the Appellant argues that he had a right to counsel and that counsel should have
been appointed at the beginning of the proceedings. We disagree and conclude that the Appellant


         5
          The primary purpose of the Community Corrections Act was “to establish a policy within the State of
Tennessee to punish selected, nonviolent felony offenders in front-end community based alternatives to incarceration,
thereby reserving secure confinement facilities for violent felony offenders.” Griffith, 787 S.W .2d at 341. As an aid in
accomplishing this purpose, it is provided in Tennessee Code Annotated section 40-36-106(e)(2) (2003) that:

                  In sentencing an eligible defendant to any community-based alternative to incarceration, the
         court shall possess the power to set the duration of the sentence for the offense committed at any
         period of time up to the maximum sentence within the appropriate sentence range, and shall retain the
         authority to alter or amend at any time the length, terms or conditions of the sentence imposed.

Tennessee Code Annotated section 40-36-106(e)(4) (2003) grants the trial judge the authority to resentence a defendant
following a revocation of the original sentence. Griffith, 787 S.W .2d at 341-42.

                  The court shall also possess the power to revoke the sentence imposed at any time due to the
         conduct of the defendant . . . , and the court may resentence the defendant to any appropriate
         sentencing alternative, including incarceration, for any period of time up to the maximum sentence
         provided for the offense committed, less any time actually served in any community-based alternative
         to incarceration.

Tenn. Code Ann. § 40-36-106(e)(4).

                                                          -6-
knowingly and voluntary waived his right to counsel. See State v. Merriweather, 34 S.W.3d 881,
885 (Tenn. Crim. App. 2000) (any waiver of the right to counsel had to be determined by the trial
judge in open court to be knowing and voluntary). The trial court informed the Appellant three times
that he was entitled to the assistance of counsel. The Appellant responded that he would just admit
to the violations and did not want an attorney to assist in his defense. This issue is without merit.

B. Warrant

        Next, the Appellant challenges the revocation of his two-year sentence for the sale of a
counterfeit controlled substance under indictment number 00-686. He argues that the trial court did
not have the authority to revoke his sentence because there was no indication in the record that a
revocation warrant was issued for the 00-686 sentence. The State contends that the Appellant had
actual notice of the intent to revoke his sentence in both cases.

        In the present case, the violation warrant only listed indictment number 00-685. While an
addendum to the warrant was filed, which listed both docket numbers, there is no indication in the
record that this document was ever served on the Appellant. During the revocation hearing, the first
time indictment number 00-686 was noted was during the trial court’s pronouncement of revocation
and, while the addendum was mentioned by the Appellant’s case officer during the hearing,
indictment numbers were not referenced. Accordingly, we conclude that the Appellant was not
placed on notice by the violation warrant nor was actual notice received in any form prior to the
hearing that his community corrections sentence was being revoked under indictment number 00-
686. These notice requirements could have been remedied by amendment to the warrant or waiver
by the Appellant. We find that the revocation proceeding violated the minimal due process
requirements of Gagnon v. Scarpelli. The trial court’s order of revocation of the Appellant’s 00-686
two-year sentence is reversed.

II. Consecutive Sentencing

        Lastly, the Appellant contends that the trial court erred by ordering that his two-year
sentences run consecutively to one another. Our ruling reversing the revocation of the Appellant’s
00-686 sentence, renders this issue moot. The State is precluded from seeking revocation of the
Appellant’s 00-686 upon remand because the sentence has expired, as no violation warrant was ever
filed and actual notice was not received prior to revocation. See Tenn. Code Ann. § 40-35-310
(2003) (trial court may revoke suspension of sentence “at any time within the maximum time which
was directed and ordered by the court for such suspension”); State v. Shaffer, 45 S.W.3d 553, 555
(Tenn. 2001) (trial court generally must revoke probation within probationary period, although
issuance of revocation warrant within probationary period will toll passage of time within which
court must act); State v. Jess R. Amonette, No. M2001-02952-CCA-R3-CD (Tenn. Crim. App. at
Nashville, Aug. 29, 2002); State v. Larry Ammons, No. W2001-00834-CCA-R3- CD (Tenn. Crim.
App. at Jackson, Mar. 18, 2002), perm. to appeal denied, (Tenn. 2002). Accordingly, further review
is unnecessary.



                                                -7-
                                         CONCLUSION

        Based upon the foregoing, we conclude that the trial court was not required to inform the
Appellant that he could be resentenced to consecutive terms if he was found to be in violation of his
community corrections sentences. Accordingly, we affirm the revocation of the Appellant’s two-
year community corrections sentence under indictment number 00-685. However, with regard to
revocation of his two-year sentence under indictment number 00-686, we find that the proceedings
failed to comply with due process requirements. Therefore, we reverse the trial court’s order of
revocation with regard to the Appellant’s sentence in case number 00-686.



                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




                                                -8-
