         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 19, 2002

                 STATE OF TENNESSEE v. SHAWN M. BROOKS

                   Direct Appeal from the Circuit Court for Wilson County
                          Nos. 96-0071; 99-0432   J. O. Bond, Judge



                      No. M2001-02358-CCA-R3-CD - Filed July 29, 2002


The Appellant, Shawn M. Brooks, appeals from the judgment of the Wilson County Circuit Court
revoking his probation. In May of 1996, Brooks pled guilty to sale of a Schedule I controlled
substance, lysergic acid diethylamide (LSD), and received a split confinement sentence of eight years
with one year to be served in confinement followed by seven years supervised probation. Again, in
May of 1999, Brooks pled guilty to sale of a counterfeit controlled substance and received a two-year
suspended sentence to be served consecutively to the 1996 sentence.

On April 10, 2001, a probation violation warrant was issued for only the1996 sentence based upon
a new arrest in DeKalb County for numerous offenses. At the probation violation hearing, Brooks
admitted guilt, which resulted in the revocation of his sentence and the reinstatement of his original
eight-year sentence in the Department of Correction. Thirty days later, an amended order was
entered by the trial court revoking Brooks’ 1999 two-year suspended sentence on the same grounds.
On appeal, he argues that the trial court erred by failing to consider alternatives to revocation. After
review, we find that the trial court did not abuse its discretion by revoking Brooks’ 1996 conviction.
However, with regard to revocation of the 1999 sentence, we find that the proceedings failed to
afford fundamental due process protections. Accordingly, we reverse and vacate the trial court's
amended order revoking Brooks’ two-year suspended sentence for sale of a counterfeit controlled
substance.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.
WEDEMEYER , JJ., joined.

Merrilyn Feirman, Nashville, Tennessee; Richard Brodhead, Assistant Public Defender, Lebanon,
Tennessee, for the Appellant, Shawn M. Brooks.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H.
Bledsoe, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and David
Durham, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                                OPINION

                                          Factual Background

        In December 1995, the Appellant was indicted by a Wilson County grand jury for the
unlawful sale of a Schedule I controlled substance, LSD, a class B felony. On May 23, 1996, he pled
guilty and, as a Range I standard offender, was sentenced to eight years with one year to be served
in the Wilson County jail followed by seven years of supervised probation. On July 7, 1997, the
Appellant’s probation was amended by agreed order adding fifty more hours of public service work
because he was “using marijuana and alcohol.” Thereafter, the Appellant’s probation was revoked
on March 18, 1998, because he tested positive for cocaine, admitted to tampering with the drug test
“by having bleach on his fingers and putting that in the cup,” failed to get alcohol and drug
assessment as instructed, failed to maintain employment, and moved without notifying his probation
officer. The Appellant’s supervision was placed with Community Corrections and his new release
date was determined to be March 18, 2006. On July 10th and August 27th of 1998, warrants were
issued alleging a violation of the Community Corrections sentence. The Appellant was found to be
in violation of his Community Corrections sentence on November 20, 1998, and was “ordered to
serve one year split confinement in the Wilson County Jail” and, thereafter, “return to the
supervision of the 15th Judicial District Community Corrections and abide by all rules.”

        In March of 1999, the Appellant was indicted for sale of a counterfeit controlled substance
represented to be LSD, a class E felony. He pled guilty on May 28, 1999, and was sentenced to two
years of probation to run consecutively to the 1996 sentence. On April 10, 2001, a warrant was
issued alleging a probation violation of the 1996 sentence due to the Appellant’s arrest in DeKalb
County for possession of drug paraphernalia, simple possession, theft under $500.00, and criminal
simulation.1 After a hearing, the trial court entered an order on August 6, 2001, revoking the
Appellant’s 1996 sentence and reinstating his original eight-year Department of Correction sentence.
In an apparent afterthought and without explanation in the record, the trial court entered an amended
order on September 6, 2001, additionally revoking the Appellant’s probation on his 1999 two-year
suspended sentence for sale of a counterfeit substance and ordering him to serve a total of ten years
in the Department of Correction. The Appellant filed a notice of appeal on September 24, 2001.




        1
          As a result of the DeKalb County proceedings, the Appellant was convicted of criminal simulation and
received a three-year sentence.

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                                             ANALYSIS

         The Appellant argues that the trial court erred “by failing to consider alternatives to revoking
[his] probation.” The Appellant does not contest the grounds supporting revocation; but, he argues
that the trial court abused its discretion by imposing the original eight-year sentence of incarceration
rather than extending the period of probation or modifying the conditions of probation.

         The law concerning revocation of a suspended sentence is clear. Upon finding, by a
preponderance of the evidence, that a defendant has violated the conditions of probation, a trial court
retains the discretion to revoke the defendant from a suspended sentence and cause execution of the
original judgment as it was entered. Tenn. Code Ann. §§ 40-35-310, -311(d), -36-106(e)(4) (1997
& Supp. 2001).

         This court reviews a revocation under an abuse of discretion standard. See State v.
Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997) (citing State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980), perm. to appeal
denied, (Tenn. 1981)). This means that the evidence need only show that the trial judge has
exercised "conscientious and intelligent judgment in making the decision rather than acting
arbitrarily." See State v. Leach, 914 S.W.2d 104, 107 (Tenn. Crim. App.1995) (citing Stamps v.
State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980), perm. to appeal denied, (Tenn. 1981)). Thus,
in reviewing the trial court's action, it is our obligation to examine the record and determine whether
the trial court has exercised a conscientious judgment.

        In the present case, the Appellant's flagrant abuse of his judicially granted liberty is
indefensible. The primary goal of non-institutional punishment is to provide a period of grace in
order to assist the rehabilitation of a penitent offender. Burns v. United States, 287 U.S. 216, 220,
53 S. Ct. 154, 155 (1932). The record is undisputed that the Appellant continued to use drugs and
violate numerous conditions of his probation and Community Corrections sentences. His conduct
demonstrates that he is unrepentant. Efforts to rehabilitate the Appellant have been rejected. In the
case before us, the trial court was statutorily authorized to reinstate the Appellant's original
eight-year Department of Correction sentence. Based on the record before us, we cannot conclude
that the trial court abused its discretion in revoking the Appellant from his non-incarcerative status
and by ordering the Appellant to serve the terms of his original sentence, eight years in the
Department of Correction.

         The Appellant also challenges the revocation of his two-year sentence for the sale of a
counterfeit controlled substance. He argues that the amended order was entered in error because (1)
the trial court did not have the authority to revoke his probation because the probationary period had
not yet begun, and (2) there was no indication in the record that a probation violation warrant was
issued for the 1999 sentence.




                                                  -3-
        First, we conclude the law is clear that the trial court did have the authority to revoke the
Appellant’s probation before his probationary period began. See Tenn. Code Ann. §§ 40-35-310,
-311(d), -36-106(e)(4). In State v. Stone, 880 S.W.2d 746, 748 (Tenn. Crim. App. 1994), this court
held that “from the date of the entry of a judgment . . . a trial court has the authority to revoke
probation if a defendant commits another crime after entry of the judgment, but before the
probationary term begins.” The court reasoned that “an obligation not to commit a criminal violation
is so inherently and patently a requirement of our citizens that it attaches to any grant of probation
and that probationers, whether they be present or future, are put on notice, as a matter of law, that
further criminal acts may result in revocation.” Id. at 749. This issue is without merit.

       Turning to the Appellant’s second challenge to the revocation of his 1999 sentence, in
Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761 (1973), the United States Supreme
Court set forth the elements needed to establish the "minimum requirements of due process" in a
revocation of probation proceeding:

       (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.

(citing Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972)); see also State v. Wade, 863
S.W.2d 406, 408 (Tenn. 1993). We find none of the above minimum due process requirements were
met with regard to revocation of the Appellant’s 1999 suspended sentence for sale of a counterfeit
drug. No reference is made to the Appellant’s two-year suspended sentence in the probation
violation warrant. Accordingly, the Appellant was not placed on notice by the warrant nor does the
record reflect that notice was received in any form prior to the hearing that his two-year probation
was being revoked. Moreover, at no time during the probation violation hearing was any reference




                                                 -4-
 made to the Appellant’s two-year suspended sentence.2 These notice requirements could have been
remedied by amendment to the warrant or waiver by the Appellant. Although some conditions may
be so inherent and founded in law that no per se notice is required, that simply is not the case here.
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 1999 two-year suspended
sentence for sale of a counterfeit substance is reversed and vacated.

                                                   CONCLUSION

        Based upon the foregoing, we conclude that the trial court did not abuse its discretion in
ordering revocation of the Appellant’s 1996 eight-year sentence. However, we do find that the trial
court abused its discretion in ordering revocation of the Appellant's probation with regard to his 1999
two-year sentence for the sale of a counterfeit controlled substance. Accordingly, the judgment of
the trial court revoking the Appellant’s 1999 suspended sentence is reversed and vacated.
Revocation of the Appellant’s probationary status and reinstatement of his original eight-year
Department of Correction sentence for sale of a Schedule I controlled substance is affirmed.




                                                                   ___________________________________
                                                                   DAVID G. HAYES, JUDGE




         2
          In this regard, we are constrained to note that the entire transcript of the revocation proceeding encompasses
only two p ages. The factual development of matters relevant to every revocation proceeding are virtually non existen t,
including: (1) the docket num bers and offenses before the cou rt in which revocation is sought; (2) the specific rule or
condition of probation allegedly violated for w hich revo cation is sought; (3) a brief procedural history of supervision
and prior violations; (4) identification of the witnesses testifying at the hearing; and (5) failure to place witnesses under
oath.

                                                            -5-
