                                                                                          04/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                January 3, 2018 Session

                  STATE OF TENNESSEE v. TYRONE CLAY

                   Appeal from the Circuit Court for Lake County
                    No. 16-CR-10164 R. Lee Moore, Jr., Judge
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                           No. W2017-01047-CCA-R3-CD
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The Defendant-Appellant, Tyrone Clay, appeals from the revocation of his community
corrections sentence by the Lake County Circuit Court. On appeal, the Defendant argues
that the trial court abused its discretion by reinstating a ten-year sentence of full
confinement. Upon review, the judgment of the circuit court is affirmed.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

James E. Lanier, District Public Defender; H. Tod Taylor, Assistant Public Defender,
Dyersburg, Tennessee, for the Defendant-Appellant, Tyrone Clay.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Danny Goodman, Jr., District Attorney General; and Phillip C. Bivens,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        On August 17, 2016, the Defendant entered a guilty plea to aggravated assault and
received a ten-year sentence, to be served on community corrections. The trial court
additionally ordered the Defendant to attend family counseling as well as undergo an
alcohol and drug evaluation. On October 24, 2016, a community corrections probation
violation petition and supporting violation report were filed. The petition alleged that the
Defendant violated several rules of community corrections, including failing to remain at
home absent certain exceptions, failing to pay court costs and supervision fees, failing to
report to his supervising case officer, and failing to report any deviation from his weekly
activity schedule. The report specifically alleged that, on August 21, 2016, and October
12, 2016, the Defendant was not at home when surveillance officers attempted to conduct
a home visit. In addition, as of October 24, 2016, the Defendant had failed to report to
his supervising officer for almost a month. Finally, the Defendant failed to complete
court ordered family counseling and the alcohol and drug assessment.

        The record shows that on October 24, 2016, a capias was issued for the
Defendant’s arrest based upon the above petition and violation report. The capias
contained a scheduled hearing date of November 22, 2016. At the November hearing
date, a Probation Violation Order Appointing Counsel was filed and another hearing date
was scheduled for January 23, 2017. At the January 23 hearing date, the Defendant did
not appear in court and another capias was issued for his arrest. Significantly, the next
day, January 24, the Defendant appeared in court and was taken into custody based on his
failure to appear on January 23. As will be discussed more fully below, the Defendant
had an official court document listing his court date as January 24, 2017. Nevertheless,
he was taken into custody. While he was being processed in the jail for his failure to
appear, the Defendant slung a door “very hard,” causing it to shatter a window. Based on
this behavior, the Defendant was additionally charged with and later pleaded guilty to
vandalism. A supplement to the violation report including the vandalism conviction was
filed on February 24, 2017.

       At the April 25, 2017 probation revocation hearing, Autumn Woods, the
community corrections officer assigned to supervise the Defendant, testified that she met
with the Defendant shortly after his release from jail, explained the community
corrections behavior contract, and had the Defendant sign it. The contract appears to be
comprised of the initial community corrections rules, signed by the Defendant on August
18, 2016, and another supplemental contract detailing additional rules, signed only by
Officer Woods on October 10, 2016. The supplemental contract contains a handwritten
notation beneath the offender line, “did not report back.” The supplemental contract
required every participant to report twice a week within the first ninety days, which the
Defendant failed to do. The Defendant reported once for the intake process and one other
time during the ninety-day period. To Officer Woods’s knowledge, the Defendant never
completed his court ordered family counseling or alcohol and drug assessment.

       On cross-examination, Officer Woods said that some meetings were supposed to
be conducted in Union City. She testified that she would have allowed the Defendant to
report by phone if he had transportation problems, but he stopped reporting before she
could give him that option. She agreed that she had no personal knowledge of the
Defendant’s failure to complete his alcohol and drug assessment. She testified, over
Defendant’s objection, based on an October 18, 2016 letter from Tracy J. Mauldin, an
employee from Here’s Hope Counseling Center. The letter noted that the Defendant was
given and appeared at a September 1, 2016 appointment, which had to be rescheduled to
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September 8, 2016, because of another test. The Defendant failed to appear for the
rescheduled appointment and had no further contact with the facility.

       The Defendant testified and identified a document, admitted as exhibit 2, which
showed the Defendant’s court date was, in fact, set for January 24, 2017. The document
is an official court filing of Lake County Circuit Court entitled, “Explanation of
Appearance Date.” The Defendant explained that he was upset when he was arrested on
January 24 because he “knew [his court] date was on the 24th,” as evidenced by exhibit 2.
There was no further testimony concerning the discrepancy between the court document
showing the January 23 date and exhibit 2. The Defendant said that he had been
receiving family counseling from his personal counselor in Dyersburg for the past five
years. Although he had requested supporting records for the counseling which were
apparently ready to be picked up, he had been unable to do so because of his work
schedule. The Defendant conceded that he had not completed his drug assessment but
further explained that he had been working and paying child support as required.
According to the Defendant, he missed curfew once and only by 10 or 15 minutes,
because he was working. He attributed his difficulty meeting with Officer Woods to his
revoked driver’s license, which required him to rely on others for transportation.

       After reviewing the evidence, the trial court revoked the Defendant’s community
corrections sentence, finding that there was not a satisfactory explanation for the
Defendant’s failure to report to his supervising officer, failure to complete the drug and
alcohol assessment, and failure to provide proof of family counseling. The order
revoking the Defendant’s ten-year sentence to Westate Corrections Network and
reinstating the remainder of the ten-year sentence in confinement in the Tennessee
Department of Correction was filed on April 27, 2017. This timely appeal followed.

                                      ANALYSIS

        On appeal, the Defendant concedes that he violated his community corrections
sentence but argues instead that the trial court should have considered mitigating
circumstances such as his progress in obtaining employment and his child support
payments. In addition, the Defendant argues that his sentence should not have been
violated based on unpaid fees and costs because the State’s witness did not address his
ability to pay, the trial court erred in admitting Officer Woods’ testimony concerning the
alcohol and drug assessment because it was based on hearsay, and he entered his guilty
plea to vandalism without the benefit of counsel. In response, the State argues that the
trial court properly revoked the Defendant’s community corrections sentence.

      The Tennessee Supreme Court has held that the same principles that apply in the
revocation of probation also apply in the revocation of community corrections. State v.
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Harkins, 811 S.W.2d 79, 83 (Tenn. 1991). The revocation of community corrections, like
the revocation of probation, rests within the sound discretion of the trial court. Id. A trial
court may revoke either alternative sentence upon a finding by a preponderance of the
evidence that the defendant violated the conditions of the sentence. See T.C.A. §§ 40-35-
310, -311(e). An appellate court will uphold a trial court’s decision to revoke probation
or community corrections absent an abuse of discretion. State v. Beard, 189 S.W.3d 730,
735 (Tenn. Crim. App. 2005); State v. Webb, 130 S.W.3d 799, 842 (Tenn. Crim. App.
2003) (quoting Harkins, 811 S.W.2d at 82). An abuse of discretion is established if the
record is devoid of substantial evidence to support the conclusion that a violation of
probation has occurred. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App.
1995) (citing Harkins, 811 S.W.2d at 82). Once the trial court decides to revoke a
defendant’s probation, it may (1) order confinement; (2) order the sentence into execution
as initially entered, or, in other words, begin the probationary sentence anew; (3) return
the defendant to probation on modified conditions as necessary; or (4) extend the
probationary period by up to two years. See T.C.A. §§ 40-35-308, -310, -311 (2012).
The trial court determines the credibility of the witnesses in a probation revocation
hearing. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991) (citing Carver
v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978)).

       The Tennessee Supreme Court has noted that “the full panoply of rights due a
defendant in criminal prosecutions” does not apply to probation revocations. State v.
Wade, 863 S.W.2d 406, 408 (Tenn. 1993) (internal quotation marks omitted).
Specifically, “[t]he strict rules of evidence do not apply in a probation revocation
hearing.” State v. Justin E. Stinnett, No. E2012-02289-CCA-R3-CD, 2013 WL 3148724,
at *3 (Tenn. Crim. App. June 19, 2013) (citing Barker v. State, 483 S.W.2d 586, 589
(Tenn. Crim. App. 1972)). However, the confrontation rights of a defendant, though
relaxed at a probation revocation hearing, preclude the admission of hearsay evidence
unless: (1) the trial court makes a finding that there is “good cause” to justify the denial
of the defendant’s right to confront and cross-examine adverse witnesses, and (2) there is
a showing that information contained in the evidence is reliable. Wade, 863 S.W.2d at
409.

        In this case, it is undisputed that the Defendant violated the terms of his
community corrections sentence. He conceded that he had failed to complete his alcohol
and drug assessment, failed to meet his probation officer twice a week as required, failed
to get home by a specific time after work in violation of his house arrest, failed to provide
verification that he was attending family counseling, and failed to pay the required fees
and court costs. Nevertheless, we acknowledge that the trial court should not have
admitted Officer Woods’ testimony based on the letter from Tracy Mauldin. The record
does not include a specific finding of good cause to justify the denial of the Defendant’s
right to confront and cross-examine Mauldin, the State offered no explanation as to why
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Mauldin was not present at the hearing, and there was no showing that Officer Woods’
testimony based on the Mauldin’s letter was reliable. Absent these findings, admission of
the testimony was error. See State v. David James Wiley, No. E2004-01463-CCA-R3-
CD, 2005 WL 1130222, at *3 (Tenn. Crim. App. May 13, 2005); State v. Brandon Scott
Watson, No. M2003-01814-CCA-R3-CD, 2004 WL 1562553, at *3 (Tenn. Crim. App.
July 13, 2004); State v. Joyce Newsman, No. M1999-00161-CCA-R3-CD, 2000 WL
994358, at *5 (Tenn. Crim. App. July 12, 2000).

        However, review of the evidence offered at the probation revocation hearing
without the erroneous testimony supports the revocation of the Defendant’s sentence. In
revoking the Defendant’s community corrections sentence, the trial court considered
certain violations to be “technical” and acknowledged the Defendant’s explanation for
them. It then stressed, “there is no explanation for not reporting to the probation officer .
. . or the new charge.” The record supports the determination of the trial court. The
Defendant violated the terms of his community corrections sentence by failing to meet
with Officer Woods, obtaining a new conviction, and failing to provide proof that he was
attending court ordered family counseling. Based on this evidence, we conclude that
exclusion of the testimony regarding the letter would not have changed the outcome of
the Defendant’s case. See Tenn. R. Crim. P. 36(b) (“A final judgment from which relief
is available and otherwise appropriate shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the judgment
or would result in prejudice to the judicial process.”); see also State v. Stephen E. Cline,
No. M2000-01674-CCA-R3-CD, 2001 WL 1379877, at *4 (Tenn. Crim. App. Oct. 30,
2001) (concluding that the trial court’s error in denying the defendant’s confrontation
rights was harmless in light of other evidence supporting revocation of sentence).
Accordingly, this issue does not avail the Defendant any relief.

       In regard to the Defendant’s remaining claims, the record shows that his
revocation was not based solely on his failure to pay fines and costs; therefore, it was
unnecessary for the trial court to determine the Defendant’s ability to pay or whether his
nonpayment was willful. State v. Dye, 715 S.W.2d 36, 40 (Tenn. 1986); Massey v. State,
929 S.W.2d 399, 402 (Tenn. Crim. App. 1996) (citing Bearden v. Georgia, 461 U.S. 660
(1983)); State v. Reginald Perry Davis Lashley, No. M2014-00733-CCA-R3-CD, 2015
WL 866956, at *6 (Tenn. Crim. App. Feb. 27, 2015). Additionally, while the Defendant
challenges the validity of his vandalism conviction for the first time in this appeal, this is
not the proper avenue to collaterally attack that conviction. See Archer v. State, 851
S.W.2d 157, 163-64 (Tenn. 1993) (holding that a conviction resulting from a guilty plea
entered without a knowing and voluntary waiver of rights was not open to attack through
a habeas corpus proceeding but rather a petition for post-conviction relief); State v.
Tansil, 72 S.W.3d 665, 667 (Tenn. Crim. App. 2001). Moreover, exhibit 1, the judgment
signed by the Defendant and the trial judge, clearly shows that the Defendant was advised
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of and subsequently waived his right to counsel prior to entering his guilty plea. The
Defendant is not entitled to relief.

                                    CONCLUSION

        Based on our review of the record, we conclude that the trial court did not abuse
its discretion in finding that the Defendant had violated the conditions of his community
corrections sentence and ordering him to serve the remainder of his ten-year sentence in
confinement. Accordingly, the judgment of the trial court is affirmed.



                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




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