         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 13, 2000

                STATE OF TENNESSEE v. KENNETH ENGLAND

                    Appeal from the Criminal Court for Campbell County
                            No. 10,145 R. Shayne Sexton, Judge



                                 No. E2000-00535-CCA-R3-CD
                                       January 10, 2001

The defendant appeals the revocation of his community corrections sentence. Finding a lack of
justiciable, substantial evidence to support the revocation, we reverse.

               Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE , JJ., joined.

Charles Herman, Assistant Public Defender, Julie A. Rice, for the Appellant, Kenneth England.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General;
William Paul Phillips, District Attorney General; Mike Ripley and Todd Longmire, Assistant District
Attorneys General, for the Appellee, State of Tennessee

                                             OPINION

                The defendant, Kenneth England, appeals the Campbell County Criminal Court’s
revocation of his community corrections sentence. On November 29, 1999, that court placed the
defendant on community corrections following his guilty plea and conviction of three counts of
felony retaliation for past action and the imposition of an effective four-year, Range I sentence. See
Tenn. Code Ann. § 39-16-510 (1997) (proscribing retaliation for past action, a Class E felony). On
December 1, 1999, the defendant signed a “Behavior Contract and Conditions” for his community
corrections sentence. In it, he agreed to various standard conditions and agreed to avoid contact with
the female victims of the conviction offenses. After the defendant violated several halfway house
rules, the community corrections officer obtained a revocation warrant, and after a hearing on
February 15, 2000, the trial court revoked the defendant’s community corrections sentence. It
ordered him to serve his sentence in the Department of Correction, with credit for 78 days that the
defendant served in the community program. On appeal, the defendant claims that the trial court
erred in revoking the community corrections sentence. After a review of the record, the briefs, and
the applicable law, we reverse the trial court’s judgment.
                 At the revocation hearing, the state presented evidence that during group day-
treatment sessions at the Kress Center, the defendant made racially inflammatory remarks that led
to confrontations with black group members, made “general” threats such as “I’ll cut somebody if
they f— with me,” exhibited “intimidating” body language, followed one of the female group
members “around the center,” was disruptive in group sessions, and “refused to participate in any
of the daily living skills activities on more than one occasion.” Also, the Cavender Hall Recovery
House, a halfway house in which the defendant resided during the latter part of his brief community
corrections experience, discharged the defendant on January 11, 2000 because he violated “house
rules” by missing curfew on one occasion by two hours and on another occasion by eight hours,
carrying an open pocket knife on December 31, 1999 and steak knife on January 6, 2000, making
racial slurs between January 2 and 11, 2000, making threats of bodily harm to a house member on
January 11, 2000, and committing “[p]hysical violence” on January 11, 2000 by being “assaultive
to fellow house member.”

                 The defendant testified at the revocation hearing that he performed all of the
requirements of Kress center, the day treatment provider. He said, “[T]hey was wanting everybody
to hug, and I didn’t want to hug nobody, . . . [but] I done everything they told me to do, everything.”
He admitted violating curfew at the halfway house but claimed extenuating circumstances. He
testified that the second curfew violation resulted from his being late due to his having to walk a long
distance to return from a visit to a hospital and a drugstore. He protested that, despite his call to the
halfway house during the journey and the assurance of someone at the house that his call and his
inability to travel faster would absolve him from a curfew violation, he was charged with a curfew
infraction nevertheless. He admitted carrying the knives but posited that he needed a means of self-
defense due to his small stature and his presence on the streets in crime-ridden areas. He did not
know that carrying the knives violated the terms of his community program; in fact, on one occasion,
the police stopped him, took the pocket knife, and returned it to him before releasing him. He did
not recall making racial slurs and denied committing any threats or assaults.

                After the evidence was presented and the case was argued, the trial court found that
“there is sufficient evidence to support the allegations that have been made by the Corrections
Program[, although i]t is a very sad situation, it does appear to be a very technical violation.” The
court revoked the community corrections placement, awarded 78 days credit on the defendant’s
sentence, and ordered him to serve the balance of the sentence in the Department of Correction.

                On appeal, the defendant argues that there was a lack of proof that “he ignored his
responsibility for attending the day treatment program and . . . that he had sufficient time to
complete any program, much less fail to complete it.”

                 He essentially complains that the proof that he was discharged from his halfway-
house residence is insufficient to support a finding that he violated rule 17 of his community
corrections agreement. The violation warrant alleged only that the defendant violated rule 17 in that
“the client failed to participate and complete treatment.” Rule 17 requires the defendant to “submit
to alcohol/drug assessment/treatment/evaluation and follow recommendations.” He correctly points


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out that he had neither been terminated from, nor had he withdrawn from, his day-treatment program
at the Kress Center and that the Kress Center has no connection to the Cavender Hall Recovery
House, the half-way house where he resided. He is also correct that it was his discharge from the
half-way house which prompted the filing of the violation warrant, even though the warrant did not
allege this discharge or the defendant’s behavior at the half-way house as grounds for revocation.

                The evidence is more equivocal about whether his community corrections officer
required him to reside at Cavender Hall and whether the defendant’s residence there was in some
way a part of or requisite to his receiving treatment at Kress. When the state elicited testimony from
the community corrections officer that the defendant had committed house infractions at Cavender
Hall, the defendant objected. In its response to the objection, the state argued that it could pursue
the questioning upon the premise that “Cavender Hall is the halfway house that the defendant is
required to live in and is required to live by those rules. Part of those rules are the day treatment
program.” The prosecutor then stated to the court, “That is part and parcel one . . . with the other.”
The trial court overruled the defendant’s objection. Then, directing a question to the witness, the
prosecutor asked, “Am I not correct?” to which the witness responded, “Yes.” However, the court
had received no evidence prior to this exchange that community corrections personnel required the
defendant to reside at Cavender Hall or that his residence there was an integral part of the “required”
treatment program at Kress Center, an unrelated facility.

                Later in the hearing, the community corrections officer testified as follows:

                Q Does one have to be a resident of Cavender Hall . . . to be
        involved in treatment and counseling at [Kress Center]?
                A No.
                Q So, if he had a problem at the halfway house, he could have
        been, say transferred to another halfway house and he could have
        continued his treatment?
                A As far as I know. [Kress] Center has not stated otherwise.

                 The decision to revoke a community corrections sentence rests within the sound
discretion of the trial court and will not be disturbed on appeal unless there is no substantial evidence
to support the trial court’s conclusion that a violation has occurred. State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991). In reviewing the trial court’s finding, it is our obligation to examine the record
and determine whether the trial court has exercised a conscientious judgment rather than an arbitrary
one. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If the evidence is sufficient,
the trial court may, within its discretionary authority, revoke the community corrections sentence and
require the defendant to serve his sentence in confinement. Tenn. Code Ann. § 40-36-196(e)(3)
(Supp. 1998).

               At the outset, we must state that we have concerns about the Cavender Hall and
“weapon” violations that are different from those the defendant raises in his complaint relative to
sufficiency. To the extent that the trial court may have relied upon the events at Cavender Hall and


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the knife possession that led to the defendant’s discharge from that facility – or may have relied upon
the discharge itself – as bases for revoking the community placement, the defendant was not afforded
due process notice of these grounds for revocation. Essentially a probationer is entitled to notice of
the bases upon which the state seeks to revoke probation, and he or she is entitled to a hearing. See
Gagnon v. Scarpelli, 422 U.S. 778, 781-82, 93 S. Ct. 1756, 1759-60 (1973); State v. Stubblefield,
953 S.W.2d 223, 225 (Tenn. Crim. App. 1997); Tenn. Code Ann. § 40-35-311 (1997). The
requirement of notice applies in a community corrections revocation proceeding just as it does in
probation revocations. Bentley v. State, 928 S.W.2d 706, 714 (Tenn. Crim. App. 1996).

                 In the present case, the state alleged only that the defendant violated rule 17 with
respect to the treatment requirement. The evidence of the defendant’s misbehavior at Cavender Hall
may have supported violations of community corrections rules 7 (with respect to the possession of
dangerous weapons), 12 (with respect to obeying state laws), and perhaps 21 (with respect to
attending and participating in programs required by his case officer, “i.e. support groups, therapy
groups”); however, the defendant received no notice that violations of these rules would serve to
justify the revocation of his community placement sought by the warrant. Thus, had the trial court
relied upon the events at Cavender Hall as independent community correction rules infractions, the
revocation would be constitutionally and statutorily infirm.

                 On the other hand, we do not discern that the trial court utilized this evidence in this
manner. The trial judge overruled the defendant’s objection to the introduction of the Cavender Hall
evidence after the state argued that the house-rule infractions and discharge at Cavender Hall were
“part and parcel” of the Kress Center treatment program that was mandated pursuant to rule 17. As
such, the trial court considered the Cavender Hall evidence to implicate a violation of rule 17, rather
than supplying independent grounds for revocation. Thus, the issue becomes whether the evidence
supports the trial court’s discretionary use of the Cavender Hall evidence as a basis for finding that
the defendant failed to submit to treatment or follow treatment recommendations.

               With all due respect for the trial court’s ambit of discretion in the matter, we cannot
conclude that substantial evidence supports a conclusion that the defendant’s continued billet at
Cavender House was a requirement of community corrections or was a condition of the day-
treatment program. Furthermore, we cannot conclude, apart from the Cavender Hall evidence, that
no substantial evidence was presented that the defendant failed to comply with community
corrections rule 17 that he “submit” to treatment or “follow recommendations.”

                To be sure, the community corrections officer answered affirmatively during her
testimony when the prosecutor apparently asked her if he was correct that the defendant was required
by community corrections to reside at Cavender Hall and the halfway house billet was “part and
parcel” with the day treatment. However, before the question was asked and answered, the trial court
accepted the state’s “part and parcel” argument, even though no evidence supported it. The
remainder of the officer’s testimony can only be understood to belie the impression that community
corrections required the defendant to live at Cavender Hall or that the Cavender Hall residence was
integral to the day treatment at Kress Center. In short, no substantial evidence exists to support


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either of these propositions. We conclude that the evidence of the defendant’s Cavender Hall
deportment cannot be brought into the case under the rubric alleged in the violation warrant.

                The remaining question is whether the defendant’s deportment at Kress Center alone
supports the decision to revoke the community placement. Again, substantial evidence is lacking
on the issue of whether the defendant failed to submit to treatment or failed to follow treatment
recommendations. We believe the paucity of evidence was mirrored in the trial court’s comment
that the alleged violations appeared to be “very technical.” We construe the trial judge’s findings
to mean that he relied upon both the Kress Center report and the Cavender Hall report to justify
revocation. We do not believe that the Kress Center report in itself justifies revocation, nor do we
believe that the trial court would have held otherwise had it realized that the Cavender Hall
information was not justiciable.

                Finding no substantial evidence to support the revocation, we reverse the trial court
and vacate the judgment. Although the present violation warrant must be dismissed, we point out
that the state is apparently free to initiate a new warrant that alleges appropriate community
corrections rule violations that emanate from the defendant’s misconduct, either at Cavender Hall
or while on the street in the possession of a weapon.


                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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