                                                                                            12/20/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 20, 2019

          STATE OF TENNESSEE v. WILLIAM KEVIN KENNEDY

                 Appeal from the Criminal Court for Sullivan County
                      No. S64105    William K. Rogers, Judge


                             No. E2019-00403-CCA-R3-CD


The defendant, William Kevin Kennedy, appeals the revocation of the sentence of
probation imposed for his 2016 Sullivan County Criminal Court convictions of
solicitation of a minor and attempted aggravated sexual battery, claiming that he was
deprived of the effective assistance of counsel at the revocation hearing. Because the
interests of justice do not require the waiver of the timely filing of the notice of appeal in
this case, the appeal is dismissed as untimely.

                          Tenn. R. App. P. 3; Appeal Dismissed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, and D. KELLY THOMAS, JR., JJ., joined.

Samuel E. White, Kingsport, Tennessee (on appeal); and J. Lewis Combs, Assistant
District Public Defender (at hearing), for the appellant, William Kevin Kennedy.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Dustin Franklin,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              Originally charged with one count each of the solicitation of a minor and
aggravated sexual battery, the defendant pleaded nolo contendere on April 28, 2016, to
one count of the solicitation of a minor and one count of the lesser included offense of
attempted aggravated sexual battery in exchange for a total effective sentence of 10 years
to be served on supervised probation. In August 2018, a probation violation warrant
issued alleging that the defendant had violated the terms of his probation by failing to
report for a mental health, drug, and alcohol assessment; by failing to report as instructed
“for Relapse Prevention”; by failing to report to the probation office to have his GPS unit
charged; and by testing positive for the use of methamphetamine, amphetamines, and
benzodiazepines.

               At the January 28, 2019 revocation hearing, the defendant conceded that he
violated the terms of his probation as alleged in the warrant. The defendant testified that
he had not received any of his necessary medications since having been incarcerated for
the probation violation and agreed that he had continued to experience difficulties with
“altercations with other individuals” while incarcerated.

              The defendant’s father, William Carrol Kennedy, testified that he suffered
from health problems related to his lungs, heart, and bones, and that he required the
defendant’s help at home. In addition, Mr. Kennedy testified that he had “pretty well
eliminated any possible” chance that the defendant would engage in the same behavior
that he had “in the past few months.” He said that in addition to the defendant’s helping
make sure Mr. Kennedy took his medication, Mr. Kennedy helped make sure the
defendant took his own medication.

               During cross-examination, Mr. Kennedy acknowledged that this was the
third time that the defendant had violated the terms of his probation and that the
defendant was living with him when he committed the previous violations. He said that,
with regard to the defendant’s failure to charge “his home arrest bracelet,” the one that
had been given to the defendant “was hard to charge” and that probation officials “kept
blaming it on my electricity, which is impossible.” Mr. Kennedy stated that he did not
“know anything about” the defendant’s “failure to report, because I did go to the trouble
[of] getting him a car.”

                At the conclusion of the hearing, the defendant conceded that this was his
third probation violation but asked the trial court to reinstate his probation, noting the
violence in the jail, the issues with his receiving his medication while incarcerated, and
his father’s need for assistance at home. The trial court observed that “this is the third
violation, . . . an egregious violation, several times that he failed to report and then he
failed the drug test.” The court revoked the defendant’s probation and ordered that he
serve the balance of his sentence in the Department of Correction. The court entered a
written order of revocation on January 29, 2019.

              Following the revocation hearing, defense counsel moved to withdraw on
grounds that the defendant had “contacted District Public Defender Andrew Gibbons on
February 6, 2019, making various allegations against defense counsel and stating his
intention to sue the public defender’s office.” The trial court granted the motion and
appointed substitute counsel. On March 4, 2019, the defendant filed a notice of appeal of
the revocation order.
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              As an initial matter, we note that the trial court revoked the defendant’s
probation in open court on January 28, 2019, and entered a revocation order on January
29, 2019. The notice of appeal must “be filed with the clerk of the appellate court within
30 days after the date of entry of the judgment appealed from.” Tenn. R. App. P. 4.
Although the court entered an amended revocation order on February 8, 2019, the
amended order did not alter the judgment revoking the sentence but corrected the number
of days credited to the defendant’s sentence.

              By definition, an amended or corrected judgment operates
              upon the existing judgment. The result is that an amendment
              or correction to a judgment generally does not restart the time
              for filing a tolling motion such as a Rule 33 motion for a new
              trial or, as the case may be, a notice of appeal.

State v. Raygan L. Presley, No. M2007-02487-CCA-R3-CD, 2008 WL 3843849, at *3
(Tenn. Crim. App., Nashville, Aug. 18, 2008). In consequence, the defendant’s notice of
appeal was not timely.

               That being said, this court may waive the timely filing of the notice of
appeal “in the interests of justice.” See Tenn. R. App. P. 4(a). In our view, however,
waiver of the timely filing of the notice of appeal is not warranted in this case. The
single issue presented in this appeal, that the defendant was deprived of the effective
assistance of counsel at the revocation hearing, is raised for the first time on appeal, and,
consequently, is waived. See Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App.
2004) (“[A]n issue raised for the first time on appeal is waived.”). Moreover, “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.” Richard
Lee Kiser v. State, No. 01C01-9503-CC-00071, 1995 WL 715510, at *3 (Tenn. Crim.
App., Nashville, Dec. 6, 1995). “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. Where, as here, there has been no allegation that
counsel’s allegedly deficient performance negatively impacted any of his constitutionally
guaranteed rights, a claim of ineffective assistance of counsel will not avail the defendant
of any relief. Finally, it is important to note that the defendant conceded that he violated
the terms of his probation for a third time. The law is well-settled that the trial court does
not abuse its discretion by choosing incarceration from among the options available after
finding that the defendant has violated the terms of his probation.



                                             -3-
             Because the single issue presented on appeal is waived and, in any event,
would not entitle the defendant to relief, the interests of justice do not warrant the waiver
of the timely filing of the notice of appeal in this case. Accordingly, the appeal is
dismissed.


                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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