        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 15, 2017

                STATE OF TENNESSEE v. TERRY SHERROD

              Appeal from the Circuit Court for Montgomery County
             Nos. 41400411, 41400412 William R. Goodman, III, Judge
                     ___________________________________

              No. M2016-01112-CCA-R3-CD – Filed February 22, 2017
                     ___________________________________


Defendant, Terry Sherrod, pled guilty in two separate cases to domestic assault and
possession of a Schedule IV drug with the intent to sell or deliver. As a result of the
guilty pleas, he received an effective sentence of four years to be served on Community
Corrections. Subsequently, an affidavit and warrant were filed alleging Defendant
violated the conditions of his sentence. After a hearing, the trial court revoked
Defendant’s Community Corrections sentence and ordered him to serve the remainder of
his original sentence of four years with credit for 580 days. Defendant appeals the
revocation. After a review, we determine that the trial court did not abuse its discretion
by determining that Defendant violated the terms of his Community Corrections
sentence. Accordingly, the judgment of the trial court is affirmed. However, we remand
the case for the entry of proper judgment forms for the charges that were dismissed as a
result of the guilty plea.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Jacob W. Fendley, Clarksville, Tennessee, for the appellant, Terry Sherrod.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
John W. Carney, Jr., District Attorney General; and Lee Willoughby, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION
                                                Facts

       In April of 2014, Defendant was indicted in case number 41400411 for one count
of aggravated assault and one count of theft of property with a value of less than $500.
That same month, Defendant was indicted in case number 41400412 for one count of
possession of a Schedule IV drug, Diazepam, with the intent to manufacture, sell, or
deliver and one count of simple possession of cocaine. In September of 2015, Defendant
pled guilty to one count of domestic assault in exchange for a sentence of eleven months
and twenty-nine days and to one count of possession of Diazepam with the intent to sell
or deliver in exchange for a sentence of four years. The sentences were to be served
concurrently on Community Corrections.1

        As part of his Community Corrections sentence, Defendant signed and received a
form titled “Sentencing Order/Behavioral Conditions of Release” detailing the terms and
conditions of Defendant’s Community Corrections sentence. Rule 6 ordered Defendant
to “[r]emain arrest free; obey the laws of the United States or any State in which he/she
may be as well as any Municipal ordinances.”

       On January 25, 2016, an affidavit and accompanying warrant were filed alleging
that Defendant had violated Community Corrections because he “failed to comply with
the law & be law abiding.” Specifically, the affidavit alleged that Defendant was arrested
in Montgomery County on January 20, 2016, for aggravated assault and public
intoxication. The warrant was served on Defendant on January 26, 2016.

        The trial court held a hearing on the violation on May 5, 2016. Detective Brittany
Feinberg of the Clarksville Police Department testified at the hearing. On the night of
January 19, 2016, she responded to a call at Ms. Tommy French’s apartment about a
possible aggravated assault or reckless endangerment. When she arrived she observed
three people at the residence including Defendant, Ms. French, and Steve Black.
Detective Feinberg believed that all three people were intoxicated. Ms. French had a
rather large cut on her arm and told the detective that everyone at the apartment had been
drinking. Ms. French told the detective that, at some point, she went into the bathroom.
She could hear Mr. Black and Defendant arguing and then heard a loud bang. When she
got back into the living room, the men were fighting. Ms. French saw a knife and tried to
break up the fight. Defendant cut Ms. French with the knife in the process. Defendant

       1
          The record does not contain judgment forms disposing of the indicted offenses of theft of
property or simple possession. On remand, the trial court should ascertain whether judgment forms exist
for these indicted offenses. If there are no judgment forms disposing of these offenses, the trial court
shall enter judgment forms for the offenses of theft of property in case number 41400411 and simple
possession in case number 41400412. See State v. Lemaricus Devall Davidson, ___ S.W.3d ___, No.
E2013-00394-SC-DDT-DD, 2016 WL 7339116, at *41 (Tenn. Dec. 19, 2016) (requiring a trial court to
prepare a uniform judgment document for each count of the indictment).
                                                  -2-
apologized for stabbing her. A pocket knife was removed from Defendant’s pocket after
police arrived. A second knife was found on the floor of the residence and later tested
positive for blood. Defendant was arrested.

       Detective Feinberg monitored Defendant’s calls from the jail after his arrest.
During a telephone call to a “Ms. Lorraine,” Defendant admitted that he violated his
probation but told her that if the victim did not show up in court, it would be beneficial
for him. He continued:

       Let me say this in a way you know what I’m talking about. [Ms. French]
       got one more time to miss, you follow me? All you got to do is tell her
       don’t let them serve her, and I got her back. She know[s] what I mean
       when I say I got her back; you do too. That way they can’t do nothing but
       reinstatement [of Community Corrections].

According to Detective Feinberg, Ms. French was not cooperative and only appeared in
general sessions court after a “material witness bond was issued.”

      Detective Feinberg admitted to the court that the indictment charged Defendant
with aggravated assault but the matter was bound over to the grand jury as reckless
endangerment. Ultimately, the Grand Jury returned a “no true bill” declining to indict
Defendant for the incident.

       At the conclusion of the hearing, the trial court determined that it would not
consider any of the statements made by Ms. French because she was not present at the
violation hearing. The trial court concluded that Defendant violated Rule 2 of the terms
of his Community Corrections, which states that Defendant “shall not use intoxicants of
any kind . . . or visit places where intoxicants . . . are being . . . used.” The trial court also
determined Defendant violated Rule 6, that he remain “arrest free,” as well as Rule 11,
that he “not engage in any assaultive, abusive, threatening or intimidating behavior . . .
[or] behave in a manner that poses a threat to others or [him]self.” The trial court
reminded Defendant that he did not “get the same privilege as everybody else” when he
was on Community Corrections and that “being in the fight in the first place, it violated
the terms of his sentence; him being intoxicated . . . is a violation of his sentence with
[C]ommunity [C]orrections as well as the fact that he got arrested.” The court further
explained:

       Here’s where we are: We’ve sat through a trial with [Defendant]; and the
       basis of that charge, basically he and the woman he’s living with got in a
       fight. And the jury found him - - didn’t find that there was proof beyond a
       reasonable doubt that he assaulted the woman he was living with. We
       come back then on another case and he enters a plea of guilty and it’s for
                                               -3-
        the same type of activity about beating up women. And he’s on
        [C]ommunity [C]orrections, and low and behold if we’re not back here
        again on assaultive behavior and there’s a woman involved. A woman that,
        there’s no dispute that, even though she’s not here, she got cut.

                Now, I don’t know what it is about [Defendant] that has the ability
        to attract women that keep coming back when they end up getting beat up,
        you know, I don’t know what he has that attracts them, but I’m not going to
        tolerate this type of behavior. There’s no other answer to it other than to
        keep him out where he can’t attract - - keep attracting women back to him
        to get beat up and to get cut. I find that they’ve established the violation.
        He’s ordered to serve the balance of his sentence.

        Defendant filed a timely notice of appeal.

                                               Analysis

                                       I. Standard of Review

       The decision to revoke a Community Corrections sentence or probation rests
within the sound discretion of the trial court. State v. Harkins, 811 S.W.2d 79, 83 (Tenn.
1991) (applying the probation revocation procedures and principles contained in
Tennessee Code Annotated section 40-35-311 to the revocation of a Community
Corrections placement based upon “the similar nature of a [C]ommunity [C]orrections
sentence and a sentence of probation”). The trial court is required only to find that the
violation of probation or Community Corrections occurred by a preponderance of the
evidence.2 See T.C.A. § 40-35-311(e); see also id. § 40-36-106(e)(3)(B). After finding a
violation of a defendant’s Community Corrections sentence, 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.” T.C.A. § 40-
36-106(e)(4). In reviewing the trial court’s findings, it is our obligation to examine the
record and determine whether the trial court has exercised a conscientious judgment
rather than an arbitrary one. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991).


        2
          In Harkins, this Court held that a revocation may only be overturned if “the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the conditions of
probation has occurred.” Harkins, 811 S.W.2d at 82. The “no substantial evidence language” was called
into question after the Sentencing Act was amended to specify the burden of proof as by a preponderance
of the evidence. See, e.g., State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim. App. 2011) (applying the
no substantial evidence language standard but questioning its continued relevance).
                                                   -4-
                  II. Sufficiency of the Evidence Supporting Revocation

       Defendant alleges on appeal that the trial court abused its discretion because he
was never actually indicted by the Grand Jury or convicted of any crime as a result of the
incident that gave rise to the affidavit and warrant for the violation. Defendant complains
about the trial court’s admission of hearsay testimony during the violation hearing. The
State insists that the trial court had “substantial evidence before it to revoke
[Defendant’s] [C]ommunity [C]orrections [sentence] and did not abuse its discretion.”

        The trial court determined that Defendant violated the rules of Community
Corrections by getting arrested. The proof at the hearing came from the testimony of
Detective Feinberg, wherein she detailed her observations upon arrival at Ms. French’s
apartment. Detective Feinberg confirmed that Defendant was arrested for aggravated
assault and public intoxication. Defendant complains on appeal that the majority of the
testimony was hearsay and improperly considered by the trial court. A trial court can
admit hearsay evidence at a probation hearing after making a finding as to why the
information is reliable and whether good cause justifies the denial of the defendant’s right
to confront and cross-examine adverse witnesses. See State v. Wade, 863 S.W.2d 406,
408 (Tenn. 1992); see also State v. David James Wiley, No. E2004-01463-CCA-R3-CD,
2005 WL 1130222, at *2 (Tenn. Crim. App. May 13, 2005), no perm. app. filed.
However, the trial court herein specifically excluded any direct hearsay in the form of
statements made by Ms. French because she was not present at the hearing. Instead, the
trial court relied on Detective Feinberg’s observations at the scene immediately after the
incident occurred because she was in a position to observe the demeanor of those present,
including Defendant. Thus, we determine that the trial court did not utilize impermissible
hearsay in making the determination to revoke Defendant’s probation.

       Defendant also complains that the revocation was improper because he was
merely arrested for public intoxication and was not ultimately indicted for that offense.
A revocation of probation can be based on criminal conduct that is the basis of pending
charges. State v. Andrew B. Edwards, No. W1999-01095-CCA-R3-CD, 2000 WL
705309, at *3 (Tenn. Crim. App. May 26, 2000), perm. app. denied (Tenn. Sept. 11,
2000). However, the trial court cannot rely solely on the mere fact of an arrest or an
indictment. Id. (citing Harkins, 811 S.W.2d at 83). Instead, the State must offer proof by
a preponderance of the evidence showing that a defendant violated the law. See State v.
Catherin Vaughn, No. M2009-01166-CCA-R3-CD, 2010 WL 2432008, at *3 (Tenn.
Crim. App. June 14, 2010) (noting that proof of a conviction is not necessary but that the
State has to “produce evidence in the usual form of testimony” (citing State v. Walter Lee
Ellison, Jr., No. 01C01-9708-CE-00351, 1998 WL 272955, at *2 (Tenn. Crim. App. May
29, 1998)), no perm. app. filed.


                                            -5-
       In the case herein, the public intoxication charge was apparently dismissed prior to
the revocation hearing. At the hearing, Detective Feinberg testified that when she arrived
on the scene, all of the occupants at the apartment appeared intoxicated. After hearing
the testimony at the hearing, the trial court clearly accredited the testimony of Detective
Feinberg that Defendant was intoxicated when she arrived on the scene and was arrested
based on his actions. In other words, the trial court determined that a preponderance of
the evidence showed Defendant was guilty of violating Rule 6 of his Community
Corrections sentence. The trial court did not abuse its discretion.

                                  III. Notice of Violations

       Lastly, Defendant insists that his due process rights were violated because the trial
court determined that he violated Rules 2, 6, and 11 of his Community Corrections
“Sentencing Order/Behavioral Conditions of Release” where the affidavit supporting the
violation only gave notice that Defendant was being charged with a violation of Rule 6.

        Because the guilt of a probationer has already been decided, “the full panoply of
rights due a defendant” does not apply to a revocation hearing. State v. Wade, 863
S.W.2d 406, 408 (Tenn. 1993) (quoting Black v. Romano, 471 U.S. 606, 613 (1985))
(internal quotation marks omitted). However, because a probationer’s freedom from
incarceration is at stake, certain due process rights do apply. Id. A defendant is entitled
to the “minimum requirements of due process” during a revocation proceeding, including
written notice of the claimed violation. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973);
Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Generally, “[t]he revocation of
probation based on grounds not alleged and noticed to the defendant is a violation of due
process.” State v. Chad Allen Conyers, No. E2004-00360-CCA-R3-CD, 2005 WL
551940, at *4 (Tenn. Crim. App. Mar. 9, 2005), no perm. app. filed. When a trial court
relies solely upon a ground of which the defendant had no notice, this Court will reverse
the judgment of the trial court, even when the evidence in the record would have also
supported revocation on the grounds alleged in the violation warrant. See State v. David
L. Baker, No. M2009-01651-CCA-R3-CD, 2010 WL 2943113, at *5 (Tenn. Crim. App.
July 26, 2010), no perm. app. filed. However, the trial court’s reliance, at least in part, on
a ground for revocation not noticed to the defendant has been held to be harmless if the
trial court also relied upon properly noticed grounds supported by the evidence. See State
v. David W. Sonnemaker, No. E2003-01402-CCA-R3-CD, 2004 WL 483239, at *5
(Tenn. Crim. App. Mar. 12, 2004), perm. app. denied (Tenn. Oct. 11, 2004); State v.
Ricky Davis, No. 03C01-9706-CC-00215, 1998 WL 205925, at *2 (Tenn. Crim. App.
Apr. 29, 1998).

      Defendant was provided with a written notice outlining the violation of Rule 6 of
his Community Corrections sentence. Then, at the hearing, the trial court observed that
Defendant actually violated more rules than initially alleged. We deem any error
                                             -6-
harmless as the trial court determined that the preponderance of the evidence supported
the revocation on the basis of a violation of Rule 6. Moreover, Defendant never raised
any issue regarding the sufficiency of the notice before the trial court. See Tenn. R. App.
P. 36(a). We conclude that Defendant’s due process rights were not violated through
insufficient notice.

                                       Conclusion

        For the foregoing reasons, the judgment of the trial court is affirmed and remanded
to the trial court. On remand, the trial court should determine if proper judgment forms
exist for the theft of property and simple possession charges in case numbers 41400411
and 41400412. If there are no judgment forms disposing of these charges, the trial court
shall enter the appropriate judgment forms.



                                           ____________________________________
                                           TIMOTHY L. EASTER, JUDGE




                                           -7-
