        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 21, 2013 Session

                 STATE OF TENNESSEE v. TERRY MARCUM

                   Appeal from the Circuit Court for Sevier County
               Nos. 16388-II & AP120006-II Richard R. Vance, Judge


                  No. E2012-01846-CCA-R3-CD - Filed July 30, 2013


The Defendant, Terry Marcum, appeals the Sevier County Circuit Court’s revoking his
probation for two counts of domestic assault and ordering him to serve his consecutive
sentences of eleven months, twenty-nine days. The Defendant contends that the trial court
abused its discretion in revoking his probation. We affirm the judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Randall E. Reagan (on appeal) and Jordan Long (at revocation hearing), Knoxville,
Tennessee, for the appellant, Terry Marcum.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
James B. “Jimmy” Dunn, District Attorney General; and George C. Ioannides, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        In November 2011, in case number AP120006-II, the Defendant pleaded guilty to
driving under the influence (DUI) in general sessions court and was sentenced to eleven
months, twenty-nine days to be served on probation. In case number 16388-II, the Defendant
pleaded guilty two weeks later to two counts of domestic assault, child abuse, and resisting
arrest and was sentenced to consecutive sentences of eleven months, twenty-nine days to be
served on probation for each offense. The court also ordered that the sentences in case
number 16388-II be served consecutively to the DUI sentence in AP120006-II.

       In case number AP120006-II, Probation Officer April Arrants filed a probation
violation warrant on June 5, 2012, alleging that the Defendant committed the offense of
domestic assault, failed to provide documentation of completion of DUI School and the
victim impact panel as conditions of his probation, and failed to provide receipts of payments
for costs, fines, and fees. In case number 16388-II, Probation Officer Michael McCarter filed
a probation violation warrant on June 13, 2012, alleging that the Defendant failed to keep his
appointment with his probation officer, failed to attend and show proof of attending “batterer
intervention A&D” classes, and failed to pay court costs and supervision fees. The warrant
also alleged that the Defendant’s whereabouts were unknown. The offenses from case
number 16388-II were the subject of the revocation hearing.

       At the revocation hearing, Probation Officer Michael McCarter testified that he had
supervised the Defendant since November 14, 2011. He said the trial court’s probation order
required the Defendant to report to his office for an initial intake interview. He said that he
met the Defendant in court and scheduled an appointment for the intake interview but that
the Defendant failed to attend. He said that although he could not recall the date of the
appointment, his practice was to schedule it within two weeks of a defendant’s court
appearance. He said he followed this practice when scheduling the Defendant’s intake
interview. He denied knowing why the Defendant failed to attend the meeting and said his
records did not show the Defendant was incarcerated.

       Mr. McCarter testified that when he spoke to the Defendant in court, he explained the
conditions of probation to the Defendant and that the Defendant signed the order of
probation. A copy of the order showing the Defendant’s signature and the conditions of
probation was received as an exhibit. He said that the Defendant was arrested for new
criminal offenses, that the Defendant’s wife or girlfriend was the victim of the charges, and
that she was the victim in the previous domestic assaults.

        On cross-examination, Mr. McCarter testified that the Defendant had numerous
criminal cases in Sevier County and that the Defendant was supervised by “private probation,
PSI.” He said that his supervision of the Defendant was scheduled to begin after the
Defendant completed his probation for the DUI conviction because the sentences for the
offenses to which he pleaded guilty were consecutive to the DUI conviction. He said that
when he met with the Defendant at the guilty plea hearing in case number 16388-II, he
scheduled an appointment for the initial intake interview. He said that he wrote down the
appointment but that he left the information at his office. On redirect examination, he stated
that his practice was to schedule an intake interview the day a defendant was assigned to him.

       Tracy Henry testified that she was a probation officer with PSI and that she took over
April Arrants’s case load previously. She said the Defendant’s file was closed because he
was ordered to serve his sentence for the DUI conviction. She said the Defendant’s
probation was revoked because he was arrested for domestic assault and violating an order
of protection. She said that the Defendant was sentenced to serve eleven months, twenty-

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nine days for the domestic assault and ten days for violating the order of protection. She said
that in addition to the new criminal charges, the Defendant failed to complete DUI School,
failed to attend the victim impact panel, and failed to pay court costs.

      On cross-examination, Ms. Henry testified that the Defendant pleaded guilty to the
DUI in November 2011. She agreed that the Defendant reported regularly and paid
supervision fees until his arrest. She denied that the Defendant paid court costs.

        Cheryl Marcum, the Defendant’s wife, testified that they married in 2000 and that the
Defendant assaulted her in January 2011. She blamed excessive alcohol consumption for the
Defendant’s actions. She agreed that on April 19, 2012, the Defendant violated the order of
protection she obtained after the first domestic assault and said that the Defendant pleaded
guilty to the violation. She stated that she was out of town for a couple days and that it
looked as though someone had been inside her home when she was gone. She said that as
she and her son were cleaning the home, she saw the Defendant outside. She said that the
Defendant was bleeding from a head wound, that he entered the home to wash the wound,
and that she told him to leave. She said the Defendant threw the food processor cover at her,
although it did not strike her. She did not recall telling the responding police officer that she
felt threatened or that she feared for her life. She did not recall the Defendant’s threatening
her pets. She denied having contact with the Defendant since he violated the order of
protection. On cross-examination, she stated that she was not present when the Defendant
pleaded guilty to assault and to violating the order of protection.

        The Defendant testified that in case number 16388-II, he pleaded guilty in November
2011 to four misdemeanors and that two weeks before his guilty plea, he pleaded guilty to
DUI. Regarding the DUI conviction, he said he was sentenced to eleven months, twenty-nine
days to be served on probation. He said that Probation Officer Heather McCoy and his
attorney told him to complete his county probation and then report to state probation. He
stated that he met with Mr. McCarter after he pleaded guilty to the four misdemeanors but
that he did not schedule an appointment for an initial intake interview.

       On cross-examination, the Defendant testified that he was on probation for DUI and
that he violated the conditions of his probation by violating the order of protection and
assaulting his wife. He said that he was serving sentences for DUI and domestic assault at
the time of the revocation hearing and that he was served with the probation violation warrant
in case number 16388-II while in confinement. He said he understood that his probation for
the four misdemeanor convictions would begin after his DUI probation.

       The Defendant testified that he reviewed the probation order with Mr. McCarter while
in court and that he signed the order. He denied meeting with Mr. McCarter again. He stated
that he violated the order of protection because he went to the family home to care for the

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dogs while his wife was in Florida. He said that he knew his wife was not there and that he
stayed there for three or four days. He said that he and his wife argued when she returned
and that he consumed “some beers,” although he denied being intoxicated. He said they
argued because she came home. He said he did not know she was coming home that day and
denied intending to violate the order of protection. He denied leaving immediately and
denied knowing he violated the order. He denied contacting his wife and said she contacted
him. He denied throwing anything at his wife and said he threw something at the trash can.
He denied threatening his wife or her dogs. He said the head wound was caused by a two-
by-four that fell while he was clearing out things from under the deck.

       On redirect examination, the Defendant testified that regarding the DUI conviction,
he met with his probation officer as required and never missed an appointment. He said he
would have met with Mr. McCarter had he known it was required.

       In case number 16388-II, the trial court found that the uncontradicted proof showed
the Defendant failed to report to Mr. McCarter. It found that the Defendant met with Mr.
McCarter while in court, that he signed the probation order, and that he was told to report for
an intake interview. The court found that the Defendant was already being supervised by
county probation for the DUI conviction and that the DUI sentence was consecutive to the
effective four years’ probation in case number 16388-II. The court found that active
supervision in case number 16388-II would not begin until the DUI supervision was
completed. The court noted that a difference existed between active supervision and
probation.

       The trial court stated that it attempted to avoid having a defendant report to two
probation officers simultaneously because it was costly and time consuming. The court said,
though, that nothing in the record showed the Defendant would not be supervised in case
number 16388-II. The court found that regardless of whether the Defendant was to be
actively supervised in case number 16388-II before the expiration of the supervision in the
DUI case, the Defendant was ordered to report for an intake interview, which he failed to do.
The court found that the Defendant was on probation and subject to the conditions of release.

        The trial court found that the Defendant violated the conditions of his probation by
failing to report for an intake interview, by committing domestic assault, and by violating the
order of protection. The court stated that the Defendant had no right to be at his wife’s house
and found that the Defendant violated his probation by committing new criminal offenses
while on probation. The court revoked the Defendant’s probation and ordered the two
domestic assault sentences in case number 16388-II to be served in confinement. The court
also ordered the remaining two sentences be served on supervised probation. This appeal
followed.


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       The Defendant contends that the trial court abused its discretion by revoking his
probation for the domestic assault convictions in case number 16388-II. He argues that his
due process rights were violated because he was not provided notice of the grounds upon
which the State sought revocation and that the court based its decision on an “erroneous
assessment” of the evidence. The State conceded at oral argument that the Defendant’s
acquiring new criminal charges was not alleged in the revocation warrant but argues that the
court properly revoked the Defendant’s probation because he failed to report for an intake
interview. We conclude that the Defendant is not entitled to relief.

        A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). “In probation revocation hearings, the credibility of witnesses is to be determined
by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991) (citing
Carver v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978)). If a trial court revokes a
defendant’s probation, its options include ordering confinement, ordering the sentence into
execution as originally entered, returning the defendant to probation on modified conditions
as appropriate, or extending the defendant’s period of probation. T.C.A. §§ 40-35-308(a),
(c), -310 (2010); see State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The judgment of the
trial court in a revocation proceeding will not be disturbed on appeal unless there has been
an abuse of discretion. See State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App.
1981). In order for this court to find an abuse of discretion, “there must be no substantial
evidence to support the conclusion of the trial court that a violation of the conditions of
probation has occurred.” State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001).

        In probation revocation hearings, due process requires “‘written notice of the claimed
violations of . . . probation[.]’” Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (quoting
Morrissey v. Brewer, 408 U.S. 471, 489 (1972)); see State v. Michael Harlan Byrd, No.
01C01-9609-CC-00411, slip op. at 9 (Tenn. Crim. App. May 1, 1998) (concluding the trial
court erred by allowing the State to rely on a psychological report to prove a ground for
revocation when no notice of the State’s intention to use the report was provided to the
defendant). Likewise, “[a] revocation based on grounds not alleged and noticed to the
defendant violates due process.” State v. Robert Franklin Delzell, III, No. M2006-01822-
CCA-R3-CD, slip op. at 3 (Tenn. Crim. App. June 27, 2007); see State v. Chad Allen
Conyers, No. E2004-00360-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App. Mar. 9, 2009)
(stating that “due process requires a defendant be given advanced written notice of the
grounds upon which the revocation . . . is to be based” (citations omitted)).

       The record shows that the State sought revocation of the Defendant’s probation in
case number 163288-II on the grounds that the Defendant failed to keep his appointment with
his probation officer, failed to attend and show proof of attending “batterer intervention
A&D” classes, and failed to pay court costs and supervision fees. The probation violation

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warrant also alleged that the Defendant’s whereabouts were unknown. The trial court
revoked the Defendant’s probation, in part, based on its finding that he violated the terms of
his probation by committing domestic assault and by violating the conditions of the order of
protection. Nothing in the record shows that the Defendant was given prior notice that the
State sought revocation based on his acquiring new criminal charges. We conclude that the
court’s reliance on the Defendant’s acquiring new criminal charges was improper. We also
conclude, as we discuss below, that the error was harmless in light of the court’s relying on
the Defendant’s failure to report to Mr. McCarter for an intake interview.

        The Defendant also argues that the trial court revoked his probation based upon an
“erroneous statement” of the evidence. He claims that the court failed to recognize that the
Defendant did not understand he was required to report to Mr. McCarter immediately
because he was still being supervised by county probation for the DUI conviction. The
Defendant’s argument is misplaced. Mr. McCarter testified that he scheduled an
appointment for the Defendant to complete an intake interview. Although Mr. McCarter
stated that he could not recall the specific date of the appointment and did not have his notes
in court, his practice was to schedule an appointment the day a defendant was assigned to
him. The court credited Mr. McCarter’s testimony that he met with the Defendant while in
court, that he reviewed the probation order with the Defendant, that the Defendant signed the
order, and that he scheduled an appointment for the Defendant to report for an intake
interview within two weeks. Likewise, the probation order signed by the Defendant required
him to “make a full and truthful report to his/her Probation Officer in person and/or in
writing as directed.” An appointment was scheduled for the Defendant to complete this
probation requirement, but the Defendant failed to attend. We conclude that the trial court
had the authority to revoke the Defendant’s probation for the domestic assault convictions.
The Defendant is not entitled to relief.

        Based upon the foregoing and the record as a whole, we affirm the judgments of the
trial court.




                                         ____________________________________
                                         JOSEPH M. TIPTON, PRESIDING JUDGE




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