         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       June 6, 2006 Session

                    STATE OF TENNESSEE v. NICHOLAS GOFF

                   Direct Appeal from the Criminal Court for Shelby County
                        No. 04-05406    Carolyn Wade Blackett, Judge



                  No. W2005-02233-CCA-R3-CD - Filed September 20, 2006


The defendant, Nicholas Goff, entered a plea of guilty to one count of driving under the influence,
first offense. Pursuant to a plea agreement with the state, the trial court imposed a sentence of eleven
months and twenty-nine days with two days in jail followed by probation. Five months later, a
violation warrant was issued and the trial court revoked his probation and ordered the original
sentence into execution. In this appeal, the defendant asserts (1) that he was not afforded due
process of law; (2) that he was denied the effective assistance of counsel; (3) that the trial court erred
by revoking his probation on the basis of a "mere arrest;" and (4) that the trial court erred by
appointing an assistant public defender as his lawyer. The judgment of the trial court is affirmed.

                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and J.C.
MCLIN , JJ., joined.

Randall B. Tolley, Memphis Tennessee (at revocation hearing and on appeal), and Sanjeev Memula,
Assistant Public Defender (at hearing), for the appellant, Nicholas Goff.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Tiffani Taylor, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        On February 3, 2005, the defendant, originally charged with second offense driving under
the influence, reckless driving, violation of the implied consent law, and driving on a revoked
license, entered a plea of guilty to one count of first offense driving under the influence. Pursuant
to a plea agreement, the defendant received a sentence of eleven months and twenty-nine days with
two days in jail followed by probation. Just over five months later, a violation warrant was issued
for the defendant's failure to "obey all laws" of the United States and the State of Tennessee. The
warrant specifically stated that "[o]n June 17, 2005, the defendant was arrested and charged with
Driving While License Suspended/ Revoked/ Cancelled under booking number 05629287" and
ordered to appear in General Sessions Court.

         On August 10, 2005, defense counsel asked that the defendant be released on bail. The state
opposed the motion. The trial court scheduled the revocation hearing two days later and agreed to
conduct a hearing on the issue of bail at that time. Although defense counsel expressed reservations
about conducting the hearing so soon, he agreed to the date. Two days later, when the state
announced its intention to proceed with the revocation hearing, defense counsel objected, arguing
that "[t]o proceed on such would obviously be unconstitutional." He contended that he was not
prepared for the defense and that the defendant was entitled to an adjudication on his motion for bail
prior to a revocation hearing. The trial court agreed to address bail first but insisted on the
revocation proceeding. Defense counsel consented, but commented, "That's fine . . . but . . . know
that my objection will be constitutional. I will be ineffective." After a brief hearing which consisted
only of argument, the trial court denied bail, at which point, defense counsel remarked, "Your Honor,
I would just state for the record I declare myself ineffective as counsel to represent him in the bond
hearing."

        During the hearing, Annie Ezell, the defendant's probation officer, testified that the
defendant, who was placed on probation in February of 2005, was arrested for driving on a revoked
license some four and one-half months later. When Ms. Ezell conceded that she had not spoken with
defense counsel prior to the hearing, the trial court offered a recess to permit an interview. Defense
counsel declined, explaining, "I just declare myself ineffective." The trial judge responded, "I am
willing to give you the whole lunch period to speak to her. There's only so much that you're going
to be able to ask her." Defense counsel again declined but asked for a continuance of two weeks.
The trial court denied the continuance request but agreed to recess so that defense counsel could
interview both the probation officer and the police officer who had issued the citation. Defense
counsel also declined the last offer, commenting that he would be "just as ineffective" after a recess.
The trial court proceeded with the hearing.

        Officer John Baker testified that on June 17, 2005, he observed a car owned by Kerry Willis
with expired drive-out tags. He initiated a traffic stop, discovered that the defendant was the driver,
and learned that his license had been revoked. The officer issued a citation but permitted Ms. Hillis,
who had been in the passenger seat, to drive the car from the scene.

        At the conclusion of Officer Baker's testimony, the trial court again offered to recess to allow
defense counsel to interview the state witnesses, offering to adjourn the hearing until the following
Monday. After conferring with the defendant, defense counsel stated his intention to "[s]ubmit the
case to the Court . . . today." When the state then asked that the defendant be questioned regarding
the decision, the defendant testified that he felt that he had no choice but to follow the advice of his
attorney. At that point, the state asked that defense counsel be relieved from the case and suggested
that the public defender be appointed in his place. The trial court agreed, appointed the public
defender, and reset the hearing for the following Monday.



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        The record establishes that the hearing was not actually concluded until September 7, 2005,
nearly one month after it began. On that date, the assistant public defender who had been appointed
to represent the defendant announced that he had agreed to stipulate that the defendant was driving
on a revoked license in violation of his probation. The assistant public defender re-called Ms. Ezell,
who confirmed that the defendant was current on his probation fees, that he had reported as required
by the probationary terms, and that he had nearly completed the other requirements of his release.

        William Goff, the defendant's grandfather, was also called as a defense witness. He testified
that the defendant assisted in his medical care, did his laundry, and prepared all of his meals. Goff
identified the defendant as his only caretaker. While acknowledging that the defendant had struggled
with alcohol addiction in the past, Goff asserted that "he's got his drinking problem over with."

        Ms. Hillis, the owner of the vehicle that had been stopped by Officer Baker, described the
defendant as "a good friend" and recalled that on the day of his arrest, she had asked the defendant
to drive her and her son to lunch. She stated that she did not "realize the severity" of her request
until the car was stopped by the police officer. Ms. Hillis explained that she had asked the defendant
to drive because she was tired. She acknowledged, however, that she was aware that the defendant
had been previously convicted of DUI, that he did not have a valid driver's license, and that he was
on probation at the time.

        The defendant testified that he "wasn't thinking" when he agreed to drive Ms. Hillis to lunch.
He expressed regret for the decision and promised that he would not drive again. The defendant
related that he lived part-time with his grandfather, for whom he provided daily care, and part-time
with Ms. Hillis. He stated that he had stopped drinking alcohol and had successfully completed a
rehabilitation program ordered by a General Sessions judge. He promised that he "would accept any
terms the Court offered" if given another opportunity at probation. The defendant insisted that he
"would never[,] ever violate [his] probation in any way again" because both his grandfather and Ms.
Hillis needed him. He asked for mercy. The defendant conceded, however, that he had been given
more than one chance at probation.

        At the conclusion of the hearing, the trial court revoked probation, placing emphasis on the
fact that he had been given more than one opportunity at probation. The court observed that "when
the Court over-extends itself, places you on probation, gives you an ordinary amount of time to get
yourself together[,] and if you refuse to do that[,] there is a price to pay."

                                                  I
        The defendant first asserts that he was denied the due process of law because the trial court
conducted the revocation hearing only two days after he was taken into custody; because the trial
court denied him the opportunity to adequately prepare a defense; and because the trial court did not
make appropriate factual findings when it revoked his probation. The state submits that the
defendant was afforded the due process of law.




                                                 -3-
        The United States Supreme Court has observed that "probationers have an obvious interest
in retaining their conditional liberty, and the state also has an interest in assuring that revocation
proceedings are based on accurate findings of fact and, where appropriate, the informed exercise of
discretion." Black v. Romano, 471 U.S. 606, 611 (1985). Our own supreme court has recognized
that those on probation have a liberty interest which must be protected by minimum standards of due
process of law. State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993). In Gagnon v. Scarpelli, 411 U.S.
778 (1973), the Supreme Court adopted several factors which the Court considered the "minimum
requirements of due process" in a probation revocation 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."

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

        In this case, the defendant was provided with written notice of the alleged violation. He was
fully aware of the proof the state intended to offer and was afforded the opportunity to be heard in
person. Further, while the trial court declined to grant defense counsel's request for a continuance,
the defendant was given the opportunity to present witnesses and the opportunity to interview and
cross-examine the witnesses for the state. The hearing occurred before a "'neutral and detached'
hearing body." At the conclusion of the hearing, the trial court announced its factual findings and
stated on the record the reason for the revocation. The trial court followed the procedure for
revocation established in Tennessee Code Annotated section 40-35-311, which provides, in pertinent
part, as follows:

                Whenever any person is arrested for the violation of probation and suspension
       of sentence, the trial judge granting such probation and suspension of sentence, the
       trial judge's successor, or any judge of equal jurisdiction who is requested by such
       granting trial judge to do so shall, at the earliest practicable time, inquire into the
       charges and determine whether or not a violation has occurred, and at such inquiry,
       the defendant must be present and is entitled to be represented by counsel and has the
       right to introduce testimony in the defendant's behalf.

Tenn. Code Ann. § 40-35-311(b) (2003) (emphasis added). Under these circumstances, it is our
view that the defendant was afforded the due process of law required at a revocation hearing. See
Gagnon, 411 U.S. at 786; Wade, 863 S.W.2d at 408.

                                                 II.


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       The defendant also asserts that he was denied the effective assistance of counsel at the
revocation hearing. He specifically contends that his defense counsel was ineffective by failing to
adequately prepare and that the assistant public defender was ineffective by introducing testimony
that was harmful to his interests, by failing to present case law provided by his initial defense
attorney, and by stipulating that he had violated his probation by driving the Hillis vehicle. The state
argues otherwise.

         While the right to counsel is guaranteed in all criminal cases, the right to counsel at a
revocation hearing is not constitutionally guaranteed. Gagnon, 411 U.S. at 789-90; Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Young v. State, 539 S.W.2d 850, 854 (Tenn. Crim. App. 1976).
In Richard Lee Kiser v. State, Nos. 01C01-9503-CC-00071, 01C01-9503-CC-00082 (Tenn. Crim.
App., at Nashville, Dec. 6, 1995), this court explained how an ineffective assistance of counsel claim
relates to a revocation hearing:

               Although a defendant has a number of constitutional rights at a hearing for
       revocation of probation, which frequently cannot be guaranteed to him without
       counsel being present representing the interests of that defendant, the right to counsel
       at a revocation of probation hearing is not guaranteed by either the Constitution of
       the United States or the Constitution of the State of Tennessee. Thus, the
       effectiveness of counsel at a revocation hearing is not a constitutional issue, except
       in those cases where the performance of counsel is so defective that another right
       which is constitutionally guaranteed at a revocation hearing is violated.

Id., slip op. at 5 (emphasis added); see also State v. Larry Ammons, No.
W2001-00834-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App., at Jackson, Mar. 18, 2002), perm. app.
denied (Tenn. Sept. 23, 2002). "The effectiveness of counsel at a revocation hearing does not raise
a constitutional issues unless counsel's performance was so defective that one of the defendant's due
process rights was violated." State v. Jerry N. Eldridge, No. M2004-01080-CCA-R3-CD, slip op.
at 4 (Tenn. Crim. App., at Nashville, Feb. 16, 2006) (citing Richard Lee Kiser, slip op. at 5; State
v. David W. Sonnemaker, No. E2003-01402-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., at
Knoxville, March 12, 2004), perm. app. denied (Tenn. Oct. 11, 2004); Larry Ammons, slip op. at
6.)

        The record establishes that despite defense counsel's admission that he had not prepared for
the revocation hearing, the defendant eventually presented witnesses on his behalf and was provided
the opportunity to confront the adverse witnesses. Furthermore, it is our view that none of the
allegations against the assistant public defender, even if true, operated to deprive the defendant of
those constitutional rights guaranteed at a revocation hearing. The assistant public defender
presented witnesses on the defendant's behalf, cross-examined the witnesses for the state, and argued
to the trial court that the defendant should be given another opportunity at probation. It was
apparently his strategy to admit the violation and ask for mercy from the court. That he was
unsuccessful does not entitle the defendant to relief. As indicated, it is our view that the defendant
was afforded the due process required at a revocation hearing. Because he was not deprived of due


                                                  -5-
process, the defendant has failed to establish that he was denied the effective assistance of counsel.
See Jerry N. Eldridge, slip op. at 5-6 (holding that defendant was not entitled to relief based on
ineffective assistance of counsel where he failed to establish that his due process rights were
violated).

                                                  III.
       The defendant next contends that the trial court erred by revoking his probation on the basis
of a "mere arrest." The state submits that the trial court did not abuse its discretion by revoking the
defendant's probation.

        Our general law provides that a trial court may revoke a sentence of probation upon finding
by a preponderance of the evidence that the defendant has violated the conditions of his release.
Tenn. Code Ann. § 40-35-311(e) (2003); Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App.
1980). On appeal, a revocation will be upheld absent an abuse of discretion. In order to establish
that the trial court has abused its discretion, the defendant must show that there is no substantial
evidence to support the determination that he violated his probation. State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614
S.W.2d 395, 398 (Tenn. Crim. App. 1980)). Relief can be granted only when "'the trial court's logic
and reasoning was improper when viewed in light of the factual circumstances and relevant legal
principles involved.'" State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore,
6 S.W.3d 235, 242 (Tenn. 1999)).

        When the violation alleged is the commission of a new offense, the state must present
sufficient facts at the revocation hearing to enable the trial court to "make a conscientious and
intelligent judgment as to whether the conduct in question violated the law." Harkins, 811 S.W.2d
at 83 n.3. While a pending charge may be a basis for the revocation of probation, "a trial court may
not rely upon the mere fact of an arrest or an indictment to revoke a defendant's probation." State
v. Clyde T. Smith, No. M2002-00553-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., at Nashville,
Jan. 21, 2003).

        Here, the record establishes that the defendant conceded that he violated the terms of his
probation when he drove Ms. Hillis to lunch. He knew that his driver's license had been revoked and
was aware that it was a violation of the law for him to drive. Officer Baker and Ms. Hillis testified
that the defendant was driving at the time of his arrest. Ms. Hillis also knew that the defendant's
driver's license had been revoked. Probation was revoked based upon the fact that the defendant
drove after his license had been revoked. Under these circumstances, it is our view that the trial
court did not abuse its discretion by revoking probation and ordering service of the original sentence.

                                                  IV.
       Finally, the defendant contends that the trial court's "on the spot" appointment of the assistant
public defender violated his right to counsel of his own choosing. The state submits that the
defendant has waived the consideration of this issue by failing to object in the trial court.



                                                  -6-
         The record establishes that defense counsel, in advance of the completion of the revocation
hearing, declared himself to be ineffective on behalf of his client. When the state asked that counsel
be substituted, neither the defendant nor his counsel objected. In fact, defense counsel expressed
concurrence with the appointment based upon "the circumstances of this hearing." The defendant,
who was questioned thoroughly by the trial court regarding his decision to "submit the case," did not
voice any concerns with regard to the appointment. In consequence, the waiver doctrine would
apply. See Tenn. R. App. P. 36(a) ("Nothing in this rule shall be construed as requiring relief be
granted to a party . . . who failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of an error."). More importantly, the defendant has failed to establish that
the trial court abused its discretion by the appointment.

         As indicated, the right to counsel at a revocation hearing is not constitutionally guaranteed.
Gagnon, 411 U.S. at 789-90; Baxter, 523 S.W.2d at 936; Young, 539 S.W.2d at 854. Further, the
right to be represented by counsel of one's choice "'must be balanced against the requirements of the
fair and proper administration of justice.'" State v. Huskey, 82 S.W.3d 297, 305 (Tenn. Crim. App.
2002) (quoting United States v. Micke, 859 F.2d 473, 480 (7th Cir. 1988)). Accordingly, the trial
court's action in matters regarding the appointment and relief of counsel will not be set aside on
appeal absent a showing that the trial court abused its discretion. See id.; State v. Rubio, 746 S.W.2d
732, 737 (Tenn. Crim. App. 1987). A reviewing court must be mindful that the Sixth Amendment
right to counsel of one's choice should inform, rather than take the place of, judicial discretion.
United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976). Consideration of this issue requires
a balancing of the defendant's right to counsel of his choice and the public's interest in the prompt
and efficient administration of justice. See Wilson v. Mintzes, 761 F.2d 275, 280-81 (6th Cir. 1985);
see also United States v. Burton, 584 F.2d 485, 489 (D.C. Cir. 1978) ("The public has a strong
interest in the prompt, effective, and efficient administration of justice; the public's interest in the
dispensation of justice that is not unreasonably delayed has great force.").

        In this case, defense counsel repeatedly described his representation as ineffective. He
declined numerous offers to interview the state witnesses prior to the conclusion of the hearing. He
instructed the defendant to "submit the case" even though the defendant described himself as "in the
dark" with "no idea what's going on." Moreover, the record indicates that neither the defendant nor
his defense counsel objected to the appointment of the assistant public defender. In our view, the
record establishes that the defendant was afforded the due process required at a revocation hearing.
The trial court did not abuse its discretion.

       Accordingly, the judgment of the trial court is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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