        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  March 5, 2013 Session

                     STATE OF TENNESSEE v. MARK TYRE

                  Appeal from the Criminal Court for Shelby County
                     No. W11-00528      W. Mark Ward, Judge


                 No. W2012-01458-CCA-R3-CD - Filed April 12, 2013


Appellant, Mark Tyre, entered a guilty plea to violation of the sex offender registry act, a
Class E felony, and received a two-year sentence as a Range I offender. He was
subsequently placed on probation. While appellant was on probation, the State indicted him
for sexual exploitation of a minor based on criminal conduct that pre-dated the guilty plea
and judgment in the instant case. After the State requested revocation of the suspended
sentence, the trial court held a hearing and revoked appellant’s probation. Appellant
contends that the trial court erred by revoking his probation based on criminal conduct that
pre-dated his guilty plea. We discern no error in the proceedings and 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 J OSEPH M. T IPTON, P.J., and
J ERRY L. S MITH, J., joined.

Daniel K. Hamilton, Memphis, Tennessee, for the appellant, Mark Tyre.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Meghan Fowler, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                    I. Procedural History

       On June 23, 2011, appellant entered a guilty plea to violation of the sex offender
registry act in exchange for a two-year sentence. The State offered the following evidence
in support of the guilty plea:
               Had the case gone to trial, the proof would have shown that [appellant]
        was convicted of aggravated sexual battery on May 5, 1991, in Clarksville,
        Tennessee[,] and is registered as a violent sex offender in Tennessee. The
        victim in that case was a nine-year-old male.

               On April 13, 2011, Sergeant Hurst with [the Memphis Police
        Department (“MPD”)] discovered that [appellant] had a social network
        account and an e-mail address without reporting those accounts to the sex
        offender registry within 48 hours of acquiring the account, which is required
        under the act.

               [Appellant] admitted to sending a friend request to a 16-year-old male
        and having a Facebook account under his e-mail address and having it for ten
        days prior to the time that the [MPD] discovered that.

At the conclusion of the plea colloquy, the trial court found that appellant entered into a
knowing, intelligent, and voluntary plea and approved the plea agreement. Although the plea
agreement and judgment are silent as to probation, the record reflects that appellant was
released and placed on probation on October 6, 2011.

       In February, 2012, appellant was indicted by a grand jury and arrested for sexual
exploitation of a minor. The trial court held a hearing on the State’s petition for revocation
of a suspended sentence on May 24, 2012.

                                                  II. Facts

        At the revocation hearing, the State presented the testimony of MPD Sergeant Andrew
Hurst. He was assigned to the sex offender registry bureau of the department. Sergent Hurst
stated that he first spoke with appellant concerning his social networking account and
unknown e-mail address in April 2011. During that interview, Sergeant Hurst questioned
appellant with regard to his purchasing a cellular telephone for a minor in 2009 and asking
the minor to send him pictures of his genitals. Appellant admitted that he had done so and
that in return, appellant had sent pictures of his own genitals to the minor. Prior to the
interview, Sergeant Hurst had learned about the cellular telephones and pictures from the
victim’s grandmother. She had contacted Sergeant Hurst to complain that appellant had
contacted the victim again in 2011 via Facebook.1 Sergeant Hurst downloaded the


        1
          The record does not contain a copy of appellant’s criminal history. However, Sergeant Hurst’s
testimony at the revocation hearing indicated that appellant had violated the terms of the sex offender registry
                                                                                                  (continued...)

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photographs, which were exchanged during the summer of 2009, from the cellular
telephones.

       Following arguments of counsel, the trial court stated on the record that when it
sentenced appellant in 2011, it had no knowledge of the 2009 events or the State’s
investigation thereof. The trial court granted the State’s petition to revoke appellant’s
probation.

                                               III. Analysis

       Appellant’s sole issue on appeal is whether the trial court erred in revoking his 2011
probationary sentence based on criminal behavior that occurred and was known to law
enforcement officers prior to his entering the guilty plea.

       In his first claim of error, appellant argues that statutory interpretation of Tennessee
Code Annotated section 40-35-311 should foreclose the revocation of his probation based
on criminal behavior that pre-dated his conviction. This court has previously rejected this
position, noting that

        the statute grants a trial court authority to begin revocation proceedings
        whenever the breach of law comes to the attention of the trial court. It does
        not specify that trial courts are to consider criminal acts that only occur after
        the imposition of a suspended sentence. Under the statute, a trial court’s
        authority to revoke a defendant’s suspended sentence is triggered by its
        learning of the defendant’s other criminal conduct.

State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997) (emphasis added). In
this instant case, as in Stubblefield, “[t]he resolution of this case depends upon whether the
trial court had knowledge of the defendant’s other criminal acts when it sentenced him to
split confinement.” Id. at 225.

      We have reviewed the transcripts of appellant’s guilty plea hearing and probation
revocation hearing. There is no mention whatsoever of these 2009 criminal acts at the guilty


        1
          (...continued)
on a previous occasion. Sergeant Hurst stated that he learned about the 2009 incidents involving the cellular
telephones and pictures from the victim’s grandmother when she complained that appellant had contacted
the victim through Facebook “after he got out of jail” in early 2011. Sergeant Hurst stated that said incidents
were unknown to law enforcement officers at the time of appellant’s 2009 sentencing for violation of the sex
offender registry act.

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plea hearing. At the probation revocation hearing, the trial court stated affirmatively that it
had no knowledge of the 2009 criminal behavior when it accepted appellant’s guilty plea.
The record is silent with regard to whether the State, i.e., the district attorney general’s office,
had notice that law enforcement officers were actively investigating the 2009 incidents
during the 2011 guilty plea proceeding. We conclude that the trial court had no knowledge
of appellant’s prior uncharged criminal behavior at the time it accepted his guilty plea.

        “[A] defendant who is granted probation has a liberty interest that is protected by due
process of law. Also, it is fundamental to our system of justice through due process that
persons who are to suffer penal sanctions must have reasonable notice of the conduct that is
prohibited.” Stubblefield, 953 S.W.2d at 225 (citations omitted). Accordingly, revocation
of a suspended sentence based on a violation of a condition of probation that occurred before
probation was granted and the conditions were set would generally be impermissible. Id.


       However, appellant’s probation was not revoked because he violated a not-yet-known
condition of his probation but because of a violation of the law that occurred before he was
placed on probation. Under the facts of this case,

       revoking probation based upon criminal acts [appellant] committed before
       being placed on probation does not implicate . . . due process concerns
       because, unlike other conditions of probation that may be imposed, the
       defendant is deemed to have notice that his . . . conduct must conform to the
       requirements of the law from the time of the law’s enactment.

Id.

        Alternatively, appellant suggests that the trial court abused its discretion in revoking
his probation because he disclosed the criminal conduct prior to being placed on probation.
The revocation of a suspended sentence rests in the sound discretion of the trial judge. State
v. Gregory, 946 S.W.2d 829, 832 (Tenn. 1997) (citing State v. Mitchell, 810 S.W.2d 733, 735
(Tenn. Crim. App. 1991)). In determining whether to revoke probation, it is not necessary
that the trial judge find that a violation of the terms of the probation has occurred beyond a
reasonable doubt. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If the trial court finds
by a preponderance of the evidence that the defendant has violated the conditions of
probation, the court is granted the authority to revoke the probation and suspension of
sentence. Tenn. Code Ann. § 40-35-311(e)(1) (Supp. 2012). The appellate standard of
review of a probation revocation is abuse of discretion. See State v. Shaffer, 45 S.W.3d 553,
554 (Tenn. 2001); see also State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).
Generally, “[a] trial court abuses its discretion when it applies incorrect legal standards,

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reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the
proof, or applies reasoning that causes an injustice to the complaining party.” State v. Phelps,
329 S.W.3d 436, 443 (Tenn. 2010) (citing State v. Jordan, 325 S.W.3d 1, 38-40 (Tenn.
2010)).

        In the instant case, Sergeant Hurst, the investigating officer, testified about the facts
underlying the 2009 offenses. He stated that appellant had admitted his involvement.
Sergeant Hurst also had obtained corroborating evidence from the cellular telephones. From
this, the trial court properly found that appellant had violated one of the terms of his
probation, which was that he would obey the laws of the United States or any State in which
he resided. The trial court followed the law set forth in the Stubblefield decision. While
noting that appellant’s case was “interesting,” the trial court stated, “I think that under that
Stubblefield case, . . . I wasn’t aware of it. I am aware of it now[,] and I’m going to go ahead
and grant the State’s petition.” Appellant has failed to demonstrate that the trial court abused
its discretion in revoking his probation.

                                       CONCLUSION

       Based on the foregoing, we affirm the judgment of the trial court.


                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




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