        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 October 23, 2012 Session

        STATE OF TENNESSEE v. MATTHEW JAMES CHAKALES

                   Appeal from the Criminal Court for Knox County
                      No. 98240 Mary Beth Leibowitz, Judge


                No. E2012-00638-CCA-R3-CD - Filed January 22, 2013


The Defendant, Matthew James Chakales, pleaded guilty to aggravated burglary, a Class C
felony, two counts of robbery, Class C felonies, and two counts of attempt to commit
robbery, Class D felonies. See T.C.A.§§ 39-14-403, 39-13-401 (2010). The trial court
sentenced the Defendant as a Range I, standard offender to an effective five years on
probation. On appeal, the Defendant contends that the trial court erred (1) by reconsidering
its previous grant of judicial diversion and (2) by revoking its previous grant of judicial
diversion. Because the trial court erroneously reconsidered its previous grant of judicial
diversion, we reverse the judgments of the trial court, reinstate judicial diversion, and remand
for a probation revocation hearing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;
                                 Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and D. K ELLY T HOMAS, J R., JJ., joined.

Mark E. Stephens, District Public Defender, Patrick Leonard, Assistant Public Defender;
James K. Scott; and Darren V. Berg and Brett D. Stokes (on appeal), Knoxville, Tennessee,
for the appellant, Matthew James Chakales.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Zane M. Scarlett, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

       This case relates to the burglary of the Defendant’s estranged wife’s home, two
robberies and two attempts to commit robbery of four local pharmacies. Although a
transcript of the guilty plea was not included in the appellate record, trial court minutes show
that the Defendant pleaded guilty by information to aggravated robbery, two counts of
robbery, and two counts of attempted robbery and received an effective five-year sentence.
The Defendant sought judicial diversion.

        With regard to the aggravated burglary offense, the victim addressed the court at the
judicial diversion hearing and stated that her primary concern was her and her children’s
safety from the Defendant. She provided the court with a history leading to the instant
offense. She said that she and the Defendant had been separated for about nine months at
the time of the offense and that the Defendant’s behavior scared her. She said that she had
recorded over fifty instances in which the Defendant threatened, stalked, or harassed her.
She said she filed multiple police reports and obtained an order of protection approximately
five months before the offense because the Defendant threatened to kill her and her parents
if she sought a divorce. She said the Defendant violated the order of protection multiple
times by showing up at her dentist’s office and her place of employment and traveling to
Wisconsin to see her while she was on a business trip. She said she did not report the
violations because she wanted the Defendant to obtain help for his drug and alcohol
addictions.

       The victim stated that two months before the offense, the Defendant entered a
rehabilitation facility and received treatment for forty-five days. She said the Defendant
“abandoned” the program and stalked her by going to her at her place of employment. She
said that on the weekend the offense occurred, the Defendant “broke down” her apartment
door, although she and her children were not home. She said she and her children spent the
weekend traveling from place to place to be safe from the Defendant.

        The victim requested that the court require the Defendant to comply with the order of
protection and with the court-ordered parenting plan. She requested that the Defendant’s
probation officer advise her “of any freedoms” the Defendant received, including his
departure from the halfway house, in order to protect her children. She stated that if the
Defendant complied with the order of protection and parenting plan, stayed drug and alcohol
free, and complied with the other probation conditions, she did not oppose judicial diversion.
She said the ability to expunge his record might provide the Defendant with an incentive to
complete his probation successfully.




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       With regard to the robberies and attempted robberies of the four pharmacies, no
witnesses were presented. The prosecutor, though, told the trial court that these events
occurred in March and September 2011 and involved four different Walgreens locations.
The prosecutor said the victims “suffered the fear of a traumatic experience at the hands of
a man who is now asking this Court to forgive . . . and forget.” We note that no additional
information about the nature and circumstances of these offenses is included in the appellate
record. We note, too, that the presentence report is not included in the appellate record.

       The Defendant addressed the court and stated that he did not know if he deserved
diversion but that he would “make the most of it.” He apologized for his actions and said he
was a selfish person. He admitted that he was an addict and that he put himself before his
wife and children, his job, his community, and his church. He apologized to his wife and his
children. He said that if the court granted his request for diversion, he would “contribute
back to the community, to work hard, [and] to pay . . . child support.” He stated that he
would comply with all his wife’s conditions and work to earn joint custody of his children.
When asked if the Defendant realized how much fear he created for his children and the
people he robbed and attempted to rob, the Defendant stated,

       [W]hen I first got to jail I sat in my cell a lot and cried, . . . poor me, like I was
       the victim. And I’ve come to realize the last 100 days . . . I did scare those
       people. They were just there to do their job, to earn a paycheck and go home
       and feed their families, and I can’t imagine how much I scared them . . . asking
       for those without a prescription. . . . And for that I’m deeply regretful.

He admitted drinking alcohol since he was twenty years old and said he was thirty-six years
old at the time of the hearing.

        The trial court granted the Defendant’s request for judicial diversion. The court stated
that it granted his request because

       if you can make it and succeed then you’ve straightened it out. But you have
       terrorized, not just your children and your wife which was bad enough but
       people at Walgreens . . . and all those places. However, you’re going to be on
       a strict rope because if you fail at diversion, you fail at probation in my view.
       And you . . . render yourself far too dangerous . . . not to go off to the
       penitentiary . . . faster than . . . a speeding bullet.

       The trial court ordered that the Defendant have no contact with his wife or allow
anyone to contact her on his behalf other than as provided in the order of protection and the
parenting plan. The court stated that his violating the court orders also violated his

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probation. The court ordered his completing Steps House, a halfway house program, and
enhanced state probation. The probation officer addressed the court and stated the Defendant
was required a wear a GPS monitor and was not allowed to enter any Walgreens or CVS
pharmacy. The Defendant was released to the halfway house following the hearing.

        The prosecutor told the trial court that it needed to prepare the judicial diversion
contract, which required the parties’ signatures. Because the Defendant was going to report
to the halfway house that day, the court scheduled a court appearance three weeks later for
the parties to sign the contract. Although the prosecutor stated that judicial diversion did not
begin until the court signed the contract, the court instructed the prosecutor to state in the
contract that the diversion began on the date of the hearing, December 14, 2011, and ended
five years later on December 14, 2016.

       On December 19, 2011, a violation of probation warrant was filed, alleging that the
Defendant was discharged from his court-ordered halfway house on December 19. The
Defendant moved to dismiss the probation violation and requested an amendment to his
sentence due to a medical condition. In his motion, the Defendant contended that he was
discharged from the halfway house because he needed surgery to his right hip, which
occurred on December 21, and needed an identical surgery to his left hip. According to the
medical records attached to the motion, on December 17, the Defendant presented to the
emergency room with discomfort to his hip. The records show that the Defendant underwent
“bilateral simultaneous total hip arthroplasty” on February 25, 2010. In June 2011, the hip
replacements began to squeak, cause discomfort, and release cobalt and chromium into his
blood. On December 21, Brian S. Edkin, M.D., performed a “revision arthroplasty” to the
right hip, which required the Defendant to be hospitalized until December 28. Dr. Edkin
concluded that the procedure was “necessary” and stated that he was “anxious” to perform
the same procedure to the left hip within the next few weeks to months.

       The next court appearance was February 29, 2012. The prosecutor told the trial court
that because the probation violation warrant was filed before the judicial contract was signed
by the parties, the Defendant had yet to be sentenced. The court agreed and said the
probation violation warrant created a situation where there was a “null diversion or a
revocation of diversion and a sentencing for diversion.” The State requested that the court
deny judicial diversion and sentence the Defendant to enhanced state probation. The court
reconsidered its previous grant of diversion and held a sentencing hearing.

       At the sentencing hearing, Tara Gray testified that she was the Defendant’s probation
officer and that she was unable to meet with the Defendant at his first appointment because
of her schedule. She said that the Defendant met with another officer who placed a GPS
device on the Defendant’s leg. She said that the Defendant complained that the device was

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too tight and that the probation officer had the supervisor verify that the device was not too
tight. She said that after the GPS device was installed, the Defendant returned to the halfway
house. She received a telephone call the next morning around 6:30 from Becky Nolan, an
employee at the halfway house, who said the Defendant fell on some steps and was taken to
the emergency room. She said Ms. Nolan told her that before the Defendant fell, he
complained that he could not sleep on the sofa and could not work because of a medical
condition related to his hips. She said that the program required the participants to work and
that neither she nor the halfway house staff knew of the Defendant’s medical condition. She
said the halfway house discharged the Defendant because he could not complete the program.
She denied the Defendant was discharged because he fell and was injured. She said the
Defendant violated a condition of his probation by not being forthcoming about his medical
condition.

       Ms. Gray testified that the Defendant called her when he found out he was being
admitted to the hospital. She said the Defendant had two problems with her being his
probation officer. She said that the Defendant spoke to one of her probationers while in jail
and that the Defendant became convinced she “was out to get him.” She said the Defendant
was upset that she supervised sex offenders, although all enhanced probation officers
supervised sex offenders. She said that the Defendant misunderstands the difference between
the enhanced probation unit and the enhanced probation sex offender unit and that he thought
he had been classified as a sex offender.

        On cross-examination, Ms. Gray testified that she was not present when the staff at
the halfway house asked the Defendant about his medical history and said that she had no
personal knowledge of their asking the Defendant about his previous hip replacements. She
stated that an initial intake interview was not conducted when the Defendant came to her
office for the GPS device. She said she received a telephone call from the halfway house
after the staff called an ambulance. She denied objecting to the Defendant’s being taken to
the hospital after he fell. She agreed that the GPS device showed the Defendant was in the
hospital, that she authorized the Defendant’s hospital stay, and that she did not know the
severity of the Defendant’s condition. She stated that the Defendant told her he needed two
surgeries, which she verified with the physician and nurse. She agreed she questioned the
physician “in great detail” about whether the surgeries were medically necessary. She agreed
the physician stated that the surgeries were both necessary and appropriate. She said that the
Defendant could no longer participate in the halfway house and that it would take about sixty
days for him to be admitted into another halfway house program.

       The State argued against the Defendant’s receiving judicial diversion. Defense
counsel told the court that the jail did not “want” the Defendant because of his medical
condition and wanted him furloughed. He stated that the sentencing hearing came as a

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surprise because the Defendant received diversion two months previously and that he thought
the court was holding a revocation hearing. He argued that the Defendant lacked a criminal
intent and mens rea to violate the conditions of his probation. He also argued that the
Defendant’s hospital stay was a medical necessity and that Ms. Gray authorized his medically
necessary surgeries.

        Upon this evidence and courtroom discussion, the trial court stated that previously it
said it “would place [the Defendant] on judicial diversion prior to all of these instances . . .
but that never actually happened.” The court stated that it placed the Defendant on judicial
diversion so that he could work and support his family. The court noted that now the
Defendant might be unable to work and that he had “some medical conditions that were not
reflected in the original presentence report.” The court noted that the original presentence
report showed that the Defendant underwent treatment for his addictions two or three times
previously, most recently in October 2011. The court said that the Defendant complained
about “absolutely everything” while at the halfway house and that it was “very obvious . . .
that [the Defendant was] a manipulative individual who want[ed] to be in control – and you
are not; I am – of your life.”

       The trial court stated that the Defendant had “a terrible drug problem” but noted that
he had “probably been clean” for the previous sixty days while in confinement. The court
found that the Defendant did not hesitate to “point guns – or whatever he did to rob people
at pharmacies, to terrorize his family.” The court found that the Defendant complained about
whether his probation officer supervised sex offenders, about his GPS device, and about the
halfway house program. The court found that the Defendant knew about his medical
condition. The court stated,

       I have been really disturbed about the decision that I made because I think [the
       Defendant] . . . has an ongoing issue, that he had no hesitation to do not one,
       not two, but four attempts or robberies of pharmacies . . . and an aggravated
       burglary. And his behavior toward his family, including his children, really
       frightens me and for good reason, and I guess it frightened everybody else
       that’s involved.

       The court refused to grant the Defendant’s request for judicial diversion and sentenced
him to five years’ probation. The court said that it thought it “made a mistake before, and
this [wa]s going to give [the court] the opportunity to change that.” This appeal followed.




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                                               I

       The Defendant contends that the trial court erred by reconsidering its previous grant
of judicial diversion and conducting a sentencing hearing. The State concedes that the trial
court erred when it conducted a sentencing hearing rather than a probation violation hearing.
We agree that the court erred by reconsidering its grant of diversion and holding a sentencing
hearing.

         The December 14, 2011 trial court minutes state, “By order of the court the defendant
is hereby placed on Judicial Diversion and a written order is entered as to this case. By the
authority of T.C.A. 40-35-313, judgment is hereby reserved until December 14, 2016.” The
minute entry was signed by the trial judge. In State v. Byington, 284 S.W.3d 220, 225
(Tenn. 2009), our supreme court discussed the importance and reliability of court minutes
as a record of the proceedings occurring in the trial court. The court stated that “the court
minutes are ‘the highest evidence of what is done in the court, and, so far as they are records
of judicial proceedings, import absolutely verity, and are conclusive unless attacked for
fraud.’” Id. at 225-26 (quoting Dyer v. State, 79 Tenn. 509, 514 (Tenn. 1883)). “The rule
. . . is[] that ‘minutes’ are indigenous to Courts of record; and when they are signed by a
Judge, they become the highest evidence of what has been done in the Court.” Howard v.
State, 399 S.W.2d 738, 740 (Tenn. 1996). We conclude that the trial court placed the
Defendant on judicial diversion on December 14, 2011, which became effective that day.
The court erroneously held a sentencing hearing and should have conducted a violation of
probation hearing pursuant to the probation violation warrant filed on December 19, 2011.

                                              II

        The Defendant contends that the trial court erred by revoking its grant of judicial
diversion based on his discharge from the court-ordered halfway house. He argues the basis
for revoking his diversion was caused by a medical emergency. The State contends that
because the trial court erred by reconsidering its previous grant of diversion and conducting
a sentencing hearing, this court should remand the case for a probation revocation hearing.
Because the trial court did not make the appropriate findings of fact and conclusions of law
with regard to the alleged probation violation, we conclude that the case must be remanded
for a probation revocation hearing.

       A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). The probation violation warrant alleged that the Defendant violated rule ten of the
conditions of probation in that he “was discharged from his Court ordered halfway house on
12/19/11.” Ms. Gray testified that the Defendant was discharged because he could not

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complete the program, not because he fell and required hospitalization. Although there was
no evidence that Ms. Gray or any probation officer performed an initial intake interview of
the Defendant or whether the staff at the halfway house asked the Defendant about any
medical conditions that would interfere with his ability to complete the program, Ms. Gray
concluded that the Defendant was not forthcoming about his medical condition. The trial
court found that the Defendant’s medical condition was not included in the presentence
report.

       The trial court’s findings were limited to whether it should grant the Defendant’s
request for judicial diversion. The record fails to show that the court considered or found
whether the Defendant violated the conditions of his probation by a preponderance of the
evidence. The court did not address whether the Defendant’s being discharged from the
halfway house was due to his inability to complete the program because of a medical
condition, his failure to disclose his medical condition, or his alleged excessive complaining.
We must remand for a probation revocation hearing.

        In consideration of the foregoing and the record as a whole, we reverse the judgments
of the trial court, reinstate judicial diversion, and remand for a probation revocation hearing.




                                              ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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