        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 22, 2010


                  STATE OF TENNESSEE v. DAVID L. BAKER

                   Appeal from the Criminal Court for Jackson County
                            No. 03-49 John Wootten, Judge



                    No. M2009-01651-CCA-R3-CD - Filed July 26, 2010


In April 2004, Appellant, David L. Baker, pled guilty in Jackson County to one count of
aggravated assault. Pursuant to the plea agreement, Appellant was ordered to serve four
years on probation. Appellant’s probation officer filed a probation violation warrant alleging
that Appellant had violated Rules 1 and 4 of the probation order. Following a hearing, the
trial court revoked Appellant’s probation based upon a violation of Rule 10 of the probation
order. Appellant appealed to this Court arguing that his right to due process had been
violated because he did not receive sufficient notice of the Rule 10 violation to support the
revocation of his probation. We have reviewed the record on appeal and must agree with
Appellant. The trial court based the revocation upon a violation which was not alleged in the
probation violation warrant and Appellant had neither written nor actual notice of the
allegation of this violation. Therefore, we reverse the revocation of Appellant’s probation
and remand for further proceedings in accordance with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed
                                 and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
J.C. M CL IN, JJ., joined.

Thomas H. Bilbrey, Assistant Public Defender, Lafayette, Tennessee, for the appellant David
L. Baker.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General, and Jimmy Lea, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                               FACTUAL BACKGROUND

       In April 2003, the Jackson County Grand Jury indicted Appellant for one count of
especially aggravated kidnapping. On April 12, 2004, Appellant pled guilty to one count of
aggravated assault. Pursuant to the plea agreement, Appellant was ordered to serve four
years on probation. The four year probationary sentence was ordered to be served
consecutively to a sentence from a prior conviction.

        On March 31, 2008, Appellant’s probation supervisor filed a probation violation
warrant. This warrant alleged that Appellant had committed new offenses consisting of
domestic assault, driving on a revoked license and violating an order of protection. On April
14, 2008, an amended probation violation warrant was filed alleging that Appellant also
failed to report and was dismissed from sex offender treatment for failure to attend. On May
12, 2008, the trial court filed an order partially revoking Appellant’s probation and ordering
the remainder of his sentence to be served on probation.

       In September 2008, Casey Sykes became the probation officer supervising Appellant.
On December 19, 2008, Mr. Sykes filed a probation violation warrant alleging that Appellant
had been arrested in Putnam County on December 1, 2008, for assault, resisting arrest, and
disorderly conduct. The warrant stated that these allegations were a violation of Rule 1 of
Appellant’s probation order. The warrant also alleged that Appellant had failed to attend sex
offender treatment classes on two dates in October 2008. The warrant stated that these
allegations were a violation of Rule 4 of Appellant’s probation order.

        The trial court held a hearing on July 10, 2009. Deputy David Blackwell with the
Putnam County Sheriff’s Department testified that on December 1, 2008, he was dispatched
to be a back-up officer for a noise complaint. When he arrived Deputy Sonny Farley was at
the door of the residence. Deputy Farley and Appellant were involved in a verbal argument.
Deputy Blackwell approached the residence. Appellant repeatedly told Deputy Farley and
Deputy Blackwell to leave. Deputy Blackwell heard a female voice in the residence exclaim,
“You broke my glasses.” That statement caused the investigation to turn into a domestic
violence investigation. Appellant tried to shut the door on the deputies, but they stepped into
the residence before he could shut the door. Deputy Blackwell saw a woman who appeared
to be crying whose face was red and had a cut on her lip.

      When Deputy Blackwell entered the residence, the woman was standing behind
Appellant. The deputies repeatedly asked the woman to speak with them and tell them what
had happened. Appellant told her not to say anything. Deputy Blackwell brought his

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flashlight up to have a better look at the woman’s face. When Deputy Blackwell brought the
flashlight up, Appellant grabbed it and pushed it into Deputy Blackwell’s mouth. Deputy
Blackwell told Appellant he was under arrest for assault. When Deputy Blackwell attempted
to place handcuffs on Appellant, he began resisting. Deputy Farley and Deputy Blackwell
had to get Appellant on the ground before they could get handcuffs on him. After getting the
handcuffs on him, they took Appellant to the patrol car. In the patrol car, Appellant began
trying to kick the windows out. Deputy Blackwell’s supervisor advised Deputy Blackwell
to administer a one second burst of Freeze Plus P, a chemical, to calm Appellant down.
Appellant was then transported to jail.

       Casey Sykes became Appellant’s probation officer September 2008. When asked if
Appellant complied with the conditions of his probation, Mr. Sykes replied that Appellant
was arrested in Putnam County for assault, resisting arrest, and disorderly conduct. Mr.
Sykes also stated that Appellant had missed appointments in October 2008 that were
scheduled with his sex offender treatment provider. Mr. Sykes testified that it is a condition
of Appellant’s probation to not pick up any further criminal charges. At the time of the
hearing, the above charges against Appellant were still pending. According to Mr. Sykes,
Appellant was current on his fees, did not have any problem with reporting for his
appointments, and had only missed two appointments for the sex offender treatment program.


        Ms. Christy Irwin testified on behalf of Appellant at the hearing. She stated that she
was the woman Deputy Blackwell had seen at the residence. She testified that Appellant was
living with her on December 1, 2008. She recalled the deputies coming to her residence that
night because a neighbor had complained about loud music. She testified that when the
deputy knocked on the door, she yelled to Appellant that she could not find her glasses. She
found an older pair of glasses that were broken and put on the broken glasses to answer the
door. She stated that Appellant told the deputies that they did not need to be at the residence,
and they could leave. Appellant attempted to close the screen door, and one of the deputies
yelled assault. Ms. Irwin testified that the deputies rushed through her screen door and took
Appellant to the ground. According to her, the deputies were so forceful that Appellant
ended up with two black eyes. They handcuffed him and took him to a patrol car. She stated
that there was nothing upsetting her before the officers arrived. She also denied that she had
a busted lip.

        At the conclusion of the hearing, the trial court revoked Appellant’s probation. The
trial court made the following findings:




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             Rule No. 10, and I always like to reread [the probation order]
       sometimes, says I will agree that my probation officer or any law enforcement
       has my consent to search my residence, that means go in.

              His own witness tells me that [Appellant] said leave three or four times.
       He is not in a position to do that. He has been convicted of two violent crimes.
       He has an eight year sentence hanging over his head.


The trial court ordered Appellant to serve the four year sentence originally imposed.
Appellant filed a timely notice of appeal.

                                        ANALYSIS

        Appellant argues on appeal that “the evidence of record is [in]sufficient” to support
“the Trial Court’s verdict of guilty of Violation of Probation” and that his rights to due
process were violated because he was not given sufficient notice of the basis of the violation
upon which the trial court based the revocation of his probation. The State argues that the
trial court did not abuse its discretion in revoking Appellant’s probation and that Appellant’s
due process rights were not violated because the revocation was based upon more than the
violation of Rule 10 of Appellant’s probation order.

       A trial court may revoke probation and order the imposition of the original sentence
upon a finding by a preponderance of the evidence that the person has violated a condition
of probation. T.C.A. §§ 40-35-310 & -311. After finding a violation of probation and
determining that probation should be revoked, a trial judge can: (1) order the defendant to
serve the sentence in incarceration; (2) cause execution of the judgment as it was originally
entered, or, in other words, begin the probationary sentence anew; or (3) extend the
probationary period for up to two years. See T.C.A. §§ 40-35-308(C) & -311(e); State v.
Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). The decision to revoke probation rests within
the sound discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim.
App. 1991). Revocation of probation and a community corrections sentence is subject to an
abuse of discretion standard of review, rather than a de novo standard. State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown if the record is devoid of
substantial evidence to support the conclusion that a violation of probation has occurred. Id.
The evidence at the revocation hearing need only show that the trial court exercised a
conscientious and intelligent judgment in making its decision. State v. Leach, 914 S.W.2d
104, 106 (Tenn. Crim. App. 1995). Further, “[i]t is well established that trial courts have
broad discretion in determining the admissibility of evidence, and their rulings will not be
reversed absent an abuse of that discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn.

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1996). Moreover, a defendant who is already on probation is not entitled to an additional
grant of probation or some other form of alternative sentencing. State v. James Cravens, No.
M2002-01216-CCA-R3-CD, 2003 WL 22282174, at *2 (Tenn. Crim. App., at Nashville, Oct.
2, 2003), perm. app. denied, (Tenn. Mar. 8, 2004).

        The United States Supreme Court set forth the minimum requirements of due process
in probation proceedings in Gagnon v. Scarpelli, 411 U.S. 778 (1973). Those requirements
include a conditional right to confront and cross-examine adverse witnesses. The Court
stated:

       [There must be] preliminary and final revocation hearings. At the preliminary
       hearing, a probationer or parolee is entitled to notice of the alleged violations
       of probation or parole, an opportunity to appear and to present evidence in his
       own behalf, a conditional right to confront adverse witnesses, an independent
       decision-maker, and a written report of the hearing. Morrissey v. Brewer, 408
       U.S. 471, 487, 92 S. Ct. 2593, 2603, 33 L. Ed.2d 484 (1972). The final
       hearing is a less summary one because the decision under consideration is the
       ultimate decision to revoke rather than a mere determination of probable
       cause, but the “minimum requirements of due process” include very similar
       elements: (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 fact finders as to the evidence relied on and
       reasons for revoking [probation or] parole.


Gagnon v. Scarpelli, 411 U.S. at 786 (quoting Morrissey v. Brewer, 408 U.S. 471, 489
(1972)).

       As stated above, notice of the grounds for the revocation of probation is required by
due process. Though written notice is preferred, this Court has previously held that actual
notice will suffice to meet the due process requirements in a revocation of probation
proceeding. See, e.g., State v. Clifford W. Jackson, No. 02C01-9802-CR-00041, 1999 WL
615742 at *4 (Tenn. Crim .App. at Jackson, August 13, 1999); State v. James C. Wolford,
No. 03C01-9708-CR-00319, 1999 WL 76447 at *7 (Tenn. Crim. App., at Knoxville, Feb.



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18, 1999); State v. Peck, 719 S.W.2d 553, 557 (Tenn. Crim. App. 1986); Stamps v. State, 614
S.W.2d 71, 73-74 (Tenn. Crim. App. 1980).

        As stated above, the infractions alleged in the probation violation warrant were
violations of Rule 1, an arrest for assault, resisting arrest, and disorderly conduct, and Rule
4, failure to attend sex offender treatment classes. Although there was ample evidence
presented of Appellant’s violation of these rules, the trial court based the revocation of
probation on Rule 10, failure to allow consent to search his residence. The probation
violation warrant did not allege a violation of Rule 10 of Appellant’s probation order. In
addition, there is no evidence in the record that Appellant was ever given any notice either
actual or written that a violation of Rule 10 would be a basis at the hearing for revocation of
his probation. Clearly, Appellant was not given notice that his probation would be revoked
on the basis of Rule 10 of his probation order. Therefore, Appellant’s assertion that his due
process rights were violated because of insufficient notice of the basis of the alleged
violation is correct.

       We point out that had the trial court based the revocation on Appellant’s arrest for
assault, resisting arrest, and disorderly conduct the evidence was sufficient to support a
violation of Rule 1 of the probation order. The testimony of a police officer concerning the
facts of an arrest may be sufficient to support the revocation of probation. State v Eric L.
Abell, No. M2006-01981-CCA-R3-CD, 2007 WL 2088949, at *5 (Tenn. Crim. App., at
Nashville, Jul. 23, 2007) (citing State v. Chris Allen Dodson, M2005-01776-CCA-R3-CD,
2006 WL 1097497, at *3 (Tenn. Crim. App., at Nashville, Mar. 31, 2006)).

       The trial court erred in revoking Appellant’s probation based upon Rule 10 when there
was no actual or written notice of an alleged violation of that rule. Therefore, we must
reverse the trial court’s order of revocation and remand for further proceedings consistent
with this opinion.

                                      CONCLUSION

       For the foregoing reasons, we reverse the trial court’s revocation of Appellant’s
probation and remand for further proceedings in accordance with this opinion.


                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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