         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs April 25, 2001

                STATE OF TENNESSEE v. KENNETH ANDERSON

                    Appeal from the Circuit Court for Montgomery County
                        No. 40129     Robert W. Wedemeyer, Judge



                      No. M2000-00754-CCA-R3-CD - Filed May 31, 2001


The Defendant, Kenneth Anderson, appeals as of right from the revocation of his probation by the
trial court. On appeal, he asserts that the trial court erred by ordering him to serve the balance of his
sentence in incarceration after finding that he had violated his probation. We find no error; thus, we
affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN
E. GLENN, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Kenneth Anderson.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
Mike McCowen, District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        On August 12, 1999, the Defendant pled guilty to aggravated burglary and received an eight
year sentence as a Range II offender, to be served on probation. On November 18, 1999, the State
filed a violation of probation warrant against the Defendant, alleging that he had violated his
probation by (1) failing to obey all laws; (2) failing to report all arrests; (3) failing to maintain
employment; (4) failing to obtain permission before leaving Tennessee; (5) failing to report to his
probation officer; and (6) failing to pay court costs. After a probation revocation hearing on March
10, 2000, the trial judge found that the Defendant had violated his probation and ordered the
Defendant to serve his eight year sentence in incarceration.

        A trial judge is vested with the discretionary authority to revoke probation if a preponderance
of the evidence establishes that a defendant violated the conditions of his or her probation. Tenn.
Code Ann. §§ 40-35-310, -311(e); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
The trial judge must, however, adduce sufficient evidence during the probation revocation hearing
to allow him or her to make an intelligent decision. See Mitchell, 810 S.W.2d at 735.

        When a probation revocation is challenged, the appellate courts have a limited scope of
review. For an appellate court to be warranted in finding that a trial judge abused his or her
discretion by revoking probation, it must be established that the record contains no substantial
evidence to support the trial judge’s conclusion that a probation violation occurred, and that because
of the violation, probation should be revoked. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997).

        After a review of the transcript of the Defendant’s probation revocation hearing, we are
unable to conclude that no substantial evidence supports the trial judge’s conclusion that a probation
violation occurred. At the hearing, the State established that the Defendant stopped reporting to his
probation officer after his first two visits. Since being placed on probation, the Defendant was
arrested for writing a bad check, shoplifting, and simple possession of marijuana. He failed to report
any of these arrests to his probation officer. The shoplifting arrest resulted in a conviction in
Christian County, Kentucky, which was proved by a certified copy of the conviction from Christian
County. That conviction also served as the basis for the allegation that the Defendant left Tennessee
without permission. A Clarksville police officer testified about arresting the Defendant on an
outstanding warrant for writing a bad check and subsequently finding a small marijuana cigarette in
the Defendant’s ashtray. The officer testified that the marijuana resulted in a conviction for simple
possession of a controlled substance, and a certified copy of the general sessions judgment was
entered into evidence, reflecting that the Defendant pled guilty to the offense. However, the
Defendant had not signed that judgment, and defense counsel argued that it was invalid on its face.
The Defendant asserted that he did not pled guilty to simple possession, but he also admitted that the
police officer found the marijuana in his car. He claimed that his car had recently been in a repair
shop and that he did not know how the marijuana got there. The Defendant further testified that the
bad check was written in January of 1999, before he pled guilty to the instant offense, and that the
charge was dismissed because the check had been disposed of in a prior agreement involving
multiple bad checks. He said that he did not report this arrest to his probation officer because he
thought the matter had already been resolved. Nevertheless, the Defendant admitted that he was
arrested for shoplifting in Kentucky, that he pled guilty to that offense, and that he did not report the
arrest and conviction to his probation officer. He explained that he was in Kentucky because the
stores in Kentucky are closer to his home than the stores in Tennessee. The Defendant said that he
called his probation officer after he missed one appointment, but he did not contact her after that
because he was afraid she had a warrant out for him and he did not want to be arrested. He also
admitted that he has two prior felony convictions, that he has multiple prior misdemeanor
convictions, and that he violated his probation on other convictions on more than one occasion.

       Considering this evidence, especially the Defendant’s admissions that he violated his
probation, we conclude that there was more than enough evidence for the trial judge to intelligently
determine that the Defendant violated his probation. Upon finding a violation of probation, the trial
judge clearly had the discretionary authority to revoke the Defendant’s probation and order him to


                                                  -2-
serve his sentence in incarceration. See Tenn. Code Ann. §§ 40-35-310, 311(e); State v. Hunter, 1
S.W.3d 643, 647 (Tenn. 1999). We find no abuse of discretion. We thus find no error with the
revocation of the Defendant’s probation.

        The Defendant also asserts on appeal that his appointed counsel was ineffective at his
revocation hearing because counsel failed to subpoena or notify defense witnesses; failed to
subpoena records; and failed to prepare for the hearing. He asks this Court to grant him a new
hearing in which he can present evidence. However, while a defendant is entitled to minimal due
process rights at a probation revocation hearing, he or she does not generally have a constitutional
right to counsel at such a hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973); State v.
Wade, 863 S.W.2d 406, 408 (Tenn. 1993); David Cox v. State, No. 03C01-9712-CC-00532, 1999
WL 83992, at *2 (Tenn. Crim. App., Knoxville, Feb. 19, 1999). Moreover, other than bare
allegations, the Defendant has made no showing of how counsel was ineffective or how counsel’s
ineffectiveness would have changed the outcome of his revocation hearing. To succeed on a claim
that his or her counsel was ineffective, a defendant bears the burden of showing that counsel made
errors so serious that he or she was not functioning as counsel as guaranteed under the Sixth
Amendment and that the deficient representation prejudiced the defendant resulting in a failure to
produce a reliable result. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). At the hearing, the Defendant’s counsel cross-examined the State’s
witnesses and questioned the Defendant about the alleged probation violations. Because the
Defendant admitted probation violations, we are not persuaded that any other actions of counsel
would have changed the result of the proceeding. This issue has no merit.

       The judgment of the trial court is affirmed.




                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




                                                -3-
