         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs August 26, 2008

               STATE OF TENNESSEE v. MARCUS NIGEL DAVIS

                   Direct Appeal from the Criminal Court for Knox County
                          No. 84932 Kenneth F. Irvine, Jr., Judge



                    No. E2007-02882-CCA-R3-CD - Filed October 23, 2008


The defendant, Marcus Nigel Davis, appeals from the judgment of the Knox County Criminal Court,
revoking his probation and reinstating his original sentence of six years. Following our review, we
affirm the judgment of the court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.

Mark E. Stephens, District Public Defender and Christy Murray, Assistant Public Defender,
Knoxville, Tennessee, for the appellant, Marcus Nigel Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Phillip H. Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        In the instant case, the record reflects that the defendant was indicted on three counts of rape.
However, pursuant to a plea agreement, the defendant was allowed to plead guilty to three counts
of sexual battery, Class E felonies, on August 22, 2007. As a result, he was sentenced to six years
with one year to be served in confinement and the remaining balance to be served on enhanced
probation. Subsequently, on October 22, 2007, a probation violation warrant was issued alleging
that the defendant violated the terms of his probation as follows: the defendant was arrested for
domestic assault; the defendant failed to abide by his curfew; the defendant failed to abide by the
electronic monitoring rules and regulations; and the defendant failed to abide by the Board of
Probation and Parole Sex Offender Directives. Thereafter, a probation revocation hearing was held.

       At the hearing, Bernice Phillips, the defendant’s probation officer, testified that she began
supervising the defendant in August of 2007. The defendant initially reported as instructed, but he
was unemployed and was having difficulty finding housing. In October of 2007, the defendant went
to work at Kentucky Fried Chicken. Around the same time, Officer Phillips had the defendant
electronically monitored, using a bracelet and PTU box with global position satellite (GPS) tracking
capability. Officer Phillips stated that she explained to the defendant the rules and regulations
regarding electronic monitoring, how to carry the GPS tracking bracelet and box, and how the
defendant would be monitored.

        Officer Phillips testified that on October 17, 2007, around 3:30 p.m., she received a call from
the monitoring center in Nashville, indicating that the defendant had removed his tracking device.
Officer Phillips was unable to reach the defendant by phone so she drove over to his house around
5:00 p.m. When she reached the defendant’s house, she encountered the defendant sitting in a car
with his wife. The defendant told her that he left the PTU box in the house. He then searched for
the box in the car and in the house but could not find it. The defendant said he might have left the
box in an area where he had been fishing. He then promised to find the box and bring it by the
probation office later in the evening when he reported for his sex offender treatment class.

        Officer Phillips testified that she returned to the probation office around 7:00 p.m. on October
17, 2007, whereupon, she learned that the defendant had failed to report for his sex offender
treatment class. Officer Phillips recalled that she waited for about 20 minutes then drove back to the
defendant’s house, however, the defendant was not home. Later, around 11:30 p.m., Officer Phillips
received a phone call from the defendant’s wife, advising Officer Phillips that the police had been
called. At 12:30 a.m., Officer Phillips drove back over to the defendant’s house and he was not
home. Officer Phillips explained that the defendant’s absence was in violation of his 9:00 p.m.
curfew. Officer Phillips said that she later learned that the defendant was arrested for domestic
assault. Officer Phillips noted that the defendant never reported the arrest to her and she did not see
the defendant again. Officer Phillips testified that the PTU box, worth $1,400, was never recovered.

       On cross-examination, Officer Phillips explained that the defendant’s GPS tracking device
was comprised of two components: an ankle bracelet, which was not removable and a PTU box
which fastened around the defendant’s waist and was removable. Officer Phillips acknowledged that
the defendant was homeless when he was first released on probation, but he found appropriate
housing and employment within a few months. Officer Phillips further acknowledged that the
defendant had faithfully reported and attended his treatment classes up until October 17, 2007.
Officer Phillips recalled that the defendant had made one payment on his court costs while on
probation between August and October.

        At the conclusion of the revocation hearing, the court requested the defendant’s presentence
report in order to review the defendant’s prior criminal history. At this time, the defense objected
arguing that review of the defendant’s criminal history was immaterial to the court’s determination
of whether or not the defendant violated his probation. The court overruled the objection stating,
“I think it is appropriate for me to know some history and as much information as I can about [the
defendant] in making this decision.” After reviewing the report, the court revoked the defendant’s
probation and ordered him to serve his entire six-year sentence in confinement with credit for time
already served. In so doing, the court stated the following:



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          As far as the allegation here today, the Court will find that Mr. Davis was in
violation of the rules of his probation in that he . . . lost this PTU device, and they
were unable to track him for a period of time. He also did miss curfew on the night
of . . . October 17th and he missed class that night.

       [Defense Counsel] correctly points out that he did a number of things that he
was supposed to do, though. He did get appropriate housing. He did get a job. And
he was attending all his classes and meeting with his probation officer, except the one
he missed the night all this problem occurred.

      Quite frankly, under different circumstances, I think that would carry a
tremendous amount of weight. . . .

        I disagree with [defense counsel] about the appropriateness of me looking at
[Mr. Davis’s] entire history and all the information that I have available. And
although [defense counsel] is correct that there is some duplication in the prior
history that’s in the presentence report . . . even discounting the duplication, there are
a number of convictions. There are felony convictions, there are misdemeanor
convictions. It covers numerous pages. There are a lot of misdemeanor assault
convictions. There are some felony drug cases.

       The General has pointed out on a number of occasions [where] probation has
been revoked in the past. That also caught my attention. . . . [I]t . . . shows a serious
problem of complying with the terms of release in that situation.

        ....

         . . . [W]hile these are not the most serious violations, Mr. Davis, your history
is part of what I have to consider. And you’ve been in the system. You know how
the system works. It is your obligation to comply with all the conditions, and you
failed to do that.

        I am not going to consider the allegation of the domestic assault. It’s just a
charge. . . . That’s not a factor in my consideration, but I do find several violations
as far as that you did not comply with the conditions of your release. . . . [T]his is a
sex offense. It’s a very serious offense. Because of that, this system has been created
so people can be tracked. . . .

       And based on your failure to do that and your violation of curfew, not going
to your class, I’m going to find you are in violation and revoke you and order that
you serve this sentence.

      So the record is clear, I have, as part of that consideration, place heavy
emphasis on what I found in this report. The history I think is significant, both the


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       nature of the offenses that he’s been convicted of in the past and his poor record of
       compliance with various terms of release.

               I think the case does speak to the fact that this was split confinement. If it
       had been something that had been presented to me for a decision, I’m not sure that
       it would have been split confinement, I’m not sure that it would have been split
       confinement in the first place, based on Mr. Davis’s history. He may well have
       qualified as something other than a Range I, Standard Offender . . . .

               So considering all of this together, the Court finds, Mr. Davis, that you’re in
       violation of your probation. You did not comply with it. That based on your
       violation, your history, and your inability in the past to comply with terms of release,
       you’re going to be revoked and you be ordered to serve your sentence in the
       Tennessee Department of Correction.

                                             ANALYSIS

         On appeal, the defendant contends that the trial court erred in considering his prior criminal
history when revoking his probation and reinstating his original sentence. The defendant submits
that the record shows that the trial court had knowledge of the defendant’s prior criminal history
before imposing the original sentence; therefore, the court should not have relied on the same history
to punish the defendant and revoke his probation. In rebuttal, the state concedes that “a trial court
should not revoke a defendant’s probation based on prior criminal acts that were known to the court
at the time it imposed the suspended sentence.” However, the state submits that the trial court did
not abuse its discretion because it did not solely rely on the defendant’s criminal history in revoking
his probation.

      In Tennessee, the procedure for revocation of probation is covered in Tennessee Code
Annotated section 40-35-311. The statute provides as follows:

       Whenever it comes to the attention of the trial judge that any defendant, who has
       been released upon suspension of sentence, has been guilty of any breach of the laws
       of this State or has violated the conditions of probation, the trial judge shall have the
       power to cause to be issued under such trial judge’s hand a warrant for the arrest of
       such defendant as in any other criminal case. Regardless of whether the defendant
       is on probation for a misdemeanor or a felony, or whether the warrant is issued by a
       general sessions court judge or the judge of a court of record, such warrant may be
       executed by a probation officer or any peace officer of the county in which the
       probationer is found.

Tenn. Code Ann. § 40-35-311(a).

       The essential question facing the trial court in a probation revocation proceeding is whether
the court’s determination will subserve the ends of justice and the best interest of both the public and


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the probationer. See Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956). The decision to revoke
probation lies in the sound discretion of the trial court. State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995). The trial court may revoke probation upon finding by a preponderance of the
evidence that the defendant has violated the conditions of his or her probation. See Tenn. Code Ann.
§§ 40-35-310, 311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The judgment of the trial
court to revoke probation will be upheld on appeal unless there has been an abuse of discretion.
Harkins, 811 S.W.2d at 82. If the trial court has exercised “conscientious judgment in making the
decision rather than acting arbitrarily,” then there is no abuse of discretion. Leach, 914 S.W.2d at
107. Discretion is abused only if the record contains no substantial evidence to support the trial
court’s conclusion that a violation has occurred. Harkins, 811 S.W.2d at 82; State v. Gregory, 946
S.W.2d 829, 832 (Tenn. Crim. App. 1997).

        Initially, we note that a trial court’s reliance on a defendant’s past criminal history in making
a probation violation determination can be problematic. To begin, our sentencing statutes
contemplate a rationale where the revocation of probation must be predicated upon a showing of
conduct which occurs subsequent to the grant of probation. See State v. Shannon Lee Beckner, No.
923, 1991 WL 43545 at *4 (Tenn. Crim. App., at Knoxville, April 2, 1991). As expressed in our
statutes, the aim of the sentencing court is to acquire and assess all the relevant information about
the defendant including his character and criminal history prior to determining the appropriate
sentence and the manner in which that sentence is to be satisfied. See e.g., Tenn. Code Ann. § 40-
35-103; -210. The court’s sentencing determination should encompass the unfavorable information,
as well as the favorable, and few things are as relevant as the defendant’s prior criminal conduct.
See id. Therefore, if a defendant’s criminal conduct was known before probation was granted, there
is a presumption that the defendant’s criminal conduct was part of the earlier sentencing equation,
and the criminal conduct should not be used for a subsequent revocation. Our decision in State v.
Shannon Lee Beckner is of guidance on whether conduct occurring outside the probationary term
can be considered in making probation violation determinations. The court noted the following:

        This Court has previously held that a suspended sentence, already imposed, but not
        yet in effect, may be revoked because of a defendant’s new violation of the law.
        Likewise, it has held that prior criminal acts, committed between the time of the
        original offense and the date probation was granted, can result in revocation when
        they were not revealed to the trial court at the time of the probation hearing.

        However, if a trial court, with knowledge of the prior criminal act, chooses to grant
        probation, it should not be allowed to base a later revocation upon that criminal act.
        See e.g., Swope v. Musser, 223 Kan. 133, 573 P.2d 587 (1977). Under such
        circumstances, our probation and revocation statutes clearly contemplate that a
        probationer is entitled to retain his liberty as long as he or she abides by the
        conditions upon which the probation was granted, including obeying the laws of our
        state.

        Although trial courts maintain continuing jurisdiction over felony probationers, see
        T.C.A. §§ 40-35-212, -303 through -311, there is a finality that attaches to a trial


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       court’s sentencing determination, which includes probation. For instance, a direct
       appeal as of right lies from such a determination in the same way one lies for other
       criminal cases. T.C.A. § 40-35-401(a) and -402(a); T.R.A.P. 3(b). Further, once
       probation is granted, a defendant has a liberty interest, which is protected by due
       process before revocation may occur, Practy v. State, 525 S.W.2d 677 (Tenn. Crim.
       App. 1974), and the trial court is, likewise, limited as to what conduct it can use to
       change the manner of the service of a sentence, including revocation, to one more
       onerous than that originally imposed. T.C.A. §§ 40-35-308(b) and -311.

Beckner, No. 923, 1991 WL 43545, at *5 (internal footnotes omitted and emphasis added).
Accordingly, it is not permissible for a court to revoke probation based on criminal acts known at
the time the probation was originally granted. See id. See also State v. Beard, 189 S.W.3d 730, 737
(Tenn. Crim. App. 2005). Additionally, as a practical matter, probation is intended to serve as an
opportunity for rehabilitation and operates as a deterrent to future antisocial conduct. Therefore, we
fail to see the efficacy of revoking a defendant’s probation based on known criminal conduct
committed prior to being sentenced as such action defeats the rehabilitative purpose for which
probation was initially granted. With that said, we now turn to address whether the court abused its
discretion in revoking the defendant’s probation.

         In the instant case, the record contains substantial evidence to support the trial court’s
findings that the defendant violated the conditions of his probation by missing his curfew, not
attending his sex offender treatment class, and losing his PTU device which thwarted the state’s
ability to monitor his movements. Furthermore, it is our view that the trial court did not revoke the
defendant’s probation on the basis of his past criminal conduct. Rather, the trial court reviewed the
defendant’s past criminal history in order to determine whether the beneficial aspects of probation
were being served. The court took a totality of the circumstances approach in order to decide
whether the defendant’s probation violations merited incarceration or another opportunity for
rehabilitation. After doing so, the court determined that the defendant was not amenable to
continued probation. Accordingly, because the trial court need only exercise “conscientious
judgment” in making its decision, we perceive no abuse of discretion by the court in revoking the
defendant’s probation and ordering him to serve his original six-year sentence in confinement with
credit for time already served.

         As an aside, the defendant argues that the trial court erred by ordering him to serve his
original six year sentence in confinement upon revoking his probation. However, our sentencing
statute clearly states as follows:

       If the trial judge should find that the defendant has violated the conditions of
       probation and suspension by a preponderance of the evidence, the trial judge shall
       have the right by order duly entered upon the minutes of the court, to revoke the
       probation and suspension of sentence and cause the defendant to commence the
       execution of the judgment as originally entered . . . .

Tenn. Code Ann. § 40-35-311(e). The defendant is without relief on this issue.


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                                  CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.




                                               ___________________________________
                                               J.C. McLIN, JUDGE




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