        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 6, 2015

                 STATE OF TENNESSEE v. JASPER CLAYTON

                   Appeal from the Criminal Court for Shelby County
                        No. 09-07601    Paula Skahan, Judge


                No. W2014-00517-CCA-R3-CD - Filed February 5, 2015


Appellant, Jasper Clayton, pleaded guilty to facilitation of aggravated robbery. The trial
court granted him judicial diversion for a three-year period. The State petitioned the court
to revoke appellant’s judicial diversion, and after a hearing, the trial court granted the State’s
request, revoking appellant’s judicial diversion and sentencing him to three years’
incarceration. On appeal, appellant contends that the State failed to comply with due process
notice requirements and that the trial court abused its discretion by revoking his diversion.
Following our review, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

Edward Perry Bronston, Memphis, Tennessee, for the appellant, Jasper Clayton.

Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Pamela Stark, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                           OPINION

                                             I. Facts

       The sparse record before this court indicates that appellant was indicted by a Shelby
County grand jury for facilitation of aggravated robbery. He pleaded guilty to the offense
on February 23, 2010, and the trial court granted his application for judicial diversion. The
diversionary period was for three years, to end on February 25, 2013.
        Included in the appellate record, inter alia, are three documents from the district
attorney general’s office styled “Petition for Revocation of Suspension of Sentence,” one
order dismissing a petition to terminate judicial diversion, and one order terminating
diversion. The first petition in the record was filed on October 5, 2011, and the basis listed
for termination was that appellant had been arrested on June 2, 2011, for firearm and drug
charges. The court’s order dismissing the first petition to terminate judicial diversion was
entered on December 2, 2011. The second petition to terminate judicial diversion was filed
on February 25, 2013, and alleged that appellant owed $7,694.50 in court costs and $395 in
probation fees. The second petition also alleged that appellant had been arrested on January
13, 2011, for an aggravated burglary that occurred on November 20, 2010. The second
petition set forth that appellant’s fingerprints had been found on an exterior bedroom window
at the burglarized residence. The final petition to terminate judicial diversion was filed on
February 12, 2014, and alleged that appellant was cited for misdemeanor possession of a
controlled substance on April 20, 2012, that he failed to appear in General Sessions Court
on June 18, 2012, and that he resisted official detention on July 1, 2013, when officers
attempted to arrest him on the basis of several warrants. Included in the record as exhibits
to the revocation hearing are certified judgment sheets for resisting official detention and
possession of a controlled substance. The trial court treated the final petition as an
amendment to the February 25, 2013 petition. See State v. Shaffer, 45 S.W.3d 553, 555-56
(Tenn. 2001) (holding that a trial court did not abuse its discretion when it revoked a
defendant’s probation based on allegations in an amended warrant).

        The trial court held a hearing on the State’s petitions to terminate diversion on
February 12 and 13, 2014. At the hearing, counsel for appellant argued that appellant did not
have notice of the allegations against him because the revocation warrant only listed the
arrest on January 13, 2011, for aggravated burglary but that the general sessions court had
dismissed the aggravated burglary case for lack of probable cause.

        Andrew Bradford, appellant’s probation officer, testified at the hearing that appellant
had not complied with the terms of his supervised release. Mr. Bradford said that he initially
filed a petition to revoke appellant’s judicial diversion in 2011 for an aggravated burglary
that allegedly occurred on January 13, 2010.1 Mr. Bradford testified that a warrant was
issued in 2011 with regard to that violation. Mr. Bradford stated that he filed another petition
on January 21, 2011. The trial court at that point in Mr. Bradford’s testimony stated that it
had dismissed that petition. Mr. Bradford said that he filed yet another petition on July 12,
2011, alleging that appellant had been arrested for possession of a firearm as a dangerous


        1
         The aggravated burglary that Mr. Bradford stated occurred on January 13, 2010, is listed in other
documents as having occurred on November 20, 2010, for which appellant was arrested on January 13, 2011.
We note that the petitions filed by Mr. Bradford are not in the appellate record.

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felon, possession of marijuana with intent to sell, and possession of drug paraphernalia. No
warrant was issued in connection with the July 12 petition. Mr. Bradford subsequently filed
a petition on August 21, 2012, alleging that appellant failed to report as ordered. Mr.
Bradford testified that the last warrant in his file was issued February 25, 2013, and included
allegations regarding the aggravated burglary.

        On cross-examination, Mr. Bradford stated that appellant was already in custody when
Mr. Bradford applied for the warrant that issued on February 25, 2013. Mr. Bradford
testified that he filed for warrants twice, once on January 21, 2011, and again on February
25, 2013. He assumed that the first one “was lost.” He stated that the purpose of the
February 2013 warrant was to keep appellant in custody. Through additional questioning by
the assistant district attorney general and the court, Mr. Bradford testified that appellant
received misdemeanor citations in 2012.

         The trial court ultimately terminated appellant’s judicial diversion, finding that he had
“clearly been convicted of other offenses that occurred during the original three[-]year term
of diversion.” The court entered a written order terminating diversion on February 13, 2014.
It is from this order that appellant now appeals.

                                          II. Analysis

        “Judicial diversion is legislative largess whereby a defendant adjudicated guilty may,
upon successful completion of a diversion program, receive an expungement from all
‘official records’ any recordation relating to ‘arrest, indictment or information, trial, finding
of guilty, and dismissal and discharge’ pursuant to the diversion statute.” State v. Schindler,
986 S.W.2d 209, 211 (Tenn. 1999) (quoting Tenn. Code. Ann. § 40-35-313(b)). The State
may seek to revoke a defendant’s judicial diversion if the defendant violates the terms of his
or her probation. See Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App. 2002). “[T]he
trial court should follow the same procedures as those used for ordinary probation
revocations” when addressing allegations that a defendant violated the terms of judicial
diversion. Id. “If the trial court determines by a preponderance of the evidence that the
defendant has violated probation,” the trial court may terminate judicial diversion and
proceed to sentence the defendant. See State v. Johnson, 15 S.W.3d 515, 519 (Tenn. Crim.
App. 1999).

                                        A. Due Process

       Appellant contends that he was not afforded constitutional notice of the allegations
against him because (1) the State filed multiple petitions; (2) one of the petitions included
allegations of a new arrest that had already been dismissed by the trial court on December


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2, 2011; and (3) he did not receive notice of the allegations until the day of the revocation
hearing. In addition, he also claims that the State did not disclose adverse evidence, did not
provide an opportunity for counsel to cross-examine witnesses, and attempted to rely on
allegations not included in any petition. Finally, he contends that the trial court did not issue
a written statement regarding its ruling.2

        In matters of probation revocation, defendants are not entitled to “‘the full panoply
of procedural safeguards associated with criminal trial’” but nonetheless “must be afforded
due process in the revocation proceeding.” State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993)
(quoting Black v. Romano, 471 U.S. 606, 613 (1985)). The United States Supreme Court set
forth the minimum due process requirements for probation revocation proceedings in Gagnon
v. Scarpelli and include (1) written notice of the allegations; (2) disclosure of adverse
evidence; (3) an opportunity to be heard and present witnesses; (4) a conditional opportunity
to cross-examine witnesses; (5) “an independent decisionmaker”; and (6) a written statement
from the decision maker regarding evidence relied upon and reasons for revocation. 411
U.S. 778, 786 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).

       In this case, appellant received written notice of the allegations against him in the
form of the petitions to revoke his judicial diversion and in the warrant that included his
arrest for aggravated burglary. Because one of the petitions was filed on the day of the
hearing, the trial court indicated that it would give appellant more time to prepare his defense
if necessary, and the assistant district attorney general repeatedly stated that she would not
oppose a resetting of the hearing to give counsel time to prepare against the additional
allegations.

        Moreover, it is clear from the record that the State provided to appellant the certified
judgments that served as adverse evidence against him and that counsel had an opportunity
to cross-examine the only witness present at the hearing. Regarding appellant’s contention
that the State attempted to rely on allegations not included in any of the petitions, the
transcript of the hearing shows that the parties discussed the fact that appellant had been
indicted for aggravated robbery. However, the assistant district attorney general indicated
that the State was not including this new charge as a violation of appellant’s judicial
diversion specifically because the new charge had not been included in any petition, and the
trial court explicitly stated that it would not consider that new charge. In addition, while
appellant maintains that the State included in its February 25, 2013 petition an allegation that
had been disposed of by the court on December 2, 2011, the record belies this contention.


        2
          Appellant included this last argument in the section of his brief addressing whether the trial court
abused its discretion in revoking his diversion, but in our view it is more appropriately addressed in
connection with his due process argument.

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The petition disposed of by the trial court on December 2, 2011, included an allegation that
appellant had been arrested for drug and firearm charges, and the State did not include this
arrest in its subsequent petitions nor did the trial court rely on that arrest in revoking
appellant’s judicial diversion.

       Finally, the trial court clearly stated its reasons for revoking appellant’s judicial
diversion in its oral ruling, which it incorporated into its written order and which were
recorded in the hearing transcript. This was sufficient to satisfy the written findings
requirement. See State v. Leiderman, 86 S.W.3d 584, 589-91 (Tenn. Crim. App. 2002)
(holding that oral findings recorded in a transcript satisfied the “written statement” due
process requirement in probation revocation matters). Therefore, we conclude that appellant
was afforded due process.

                             B. Revocation of Judicial Diversion

        Appellant contends that the trial court abused its discretion in revoking appellant’s
judicial diversion because the trial court did not conduct a hearing within a reasonable time
and because the trial court’s ruling was ambiguous. The State responds that appellant waived
his argument regarding the time frame because it was not addressed in the trial court and that
the trial court’s ruling was not ambiguous. We agree with the State.

       We review a trial court’s revocation of judicial diversion for abuse of discretion.
Johnson, 15 S.W.3d at 517-18. An abuse of discretion will be found only if there is “no
substantial evidence to support the conclusion of the trial judge.” State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991) (citations omitted). “The proof of a probation violation need not
be established beyond a reasonable doubt, but it is sufficient if it allows the trial judge to
make a conscientious and intelligent judgment.” Id. (citing State v. Milton, 673 S.W.2d 555,
557 (Tenn. Crim. App. 1984)).

         Regarding appellant’s assertion that the trial court abused its discretion by failing to
conduct a hearing within a reasonable time, we note that there was a period of nearly one
year between the date that would have ended appellant’s diversion and the revocation
hearing. Also, included in the record is a letter from appellant to the trial court asking for
a hearing to be set. However, appellant did not address the delay at the revocation hearing.
Thus, we must conclude that he waived the argument. See Tenn. R. App. P. 36(a) (“Nothing
in this rule shall be construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”). Moreover, the record indicates that appellant was incarcerated
for other charges at least part of the time during the delay. Waiver notwithstanding, we
cannot determine based on the record before us whether the hearing was or was not


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conducted “at the earliest time practicable” as required by Tennessee Code Annotated section
40-35-311(b).

        Appellant’s next argument is that the trial court’s ruling was insufficient because it
was ambiguous and because the court did not address all of the State’s allegations. However,
our review of the record indicates that the trial court’s ruling was clear and succinct. The
trial court relied on appellant’s convictions for new charges, which was sufficient to revoke
appellant’s judicial diversion. Therefore, we conclude that appellant is without relief.

                                      CONCLUSION

      Based on the record, the briefs of the parties, and the applicable law, we affirm the
judgment of the trial court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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