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

                 STATE OF TENNESSEE v. WALTER JACKSON

                  Direct Appeal from the Criminal Court for Knox County
                      Nos. 39993, 40441   Mary Beth Lebowitz, Judge



                                 No. E1999-02186-CCA-R3-CD
                                       January 24, 2001

Walter Jackson appeals the judgment of the Knox County Criminal Court revoking his placement
in the community corrections program and reinstating his original eight-year Department of
Correction sentence. Prior to his revocation, Jackson was serving an eight-year community
corrections sentence resulting from his 1991 guilty pleas to two counts of sale of cocaine. Jackson
challenges the revocation of his community corrections sentence and the redesignation of his
confinement with the Department of Correction. Finding that the trial court did not abuse its
discretion, we affirm.

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

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

Mark E. Stephens, District Public Defender, Paula R. Voss (on appeal) and Marie Steinbrenner (at
trial), Assistant Public Defenders, Knoxville, Tennessee, for the Appellant, Walter Jackson.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, R. Stephen
Jobe, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Leon Franks,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

        The Appellant, Walter Jackson, appeals as of right the judgment of the Knox County
Criminal Court revoking his eight-year community corrections sentence and redesignating his place
of confinement with the Department of Correction. The Appellant’s eight-year sentence stems from
his convictions for class B and class C felony sales of cocaine. Following a sentencing hearing in
April 1991, the trial court suspended the Appellant’s concurrent eight-year and three-year sentences
and imposed an eight-year term of supervised probation. The Appellant’s probation was revoked
on October 22, 1993. The trial court’s minutes reflect the following ruling:
          . . . Petition for Revocation of Probation is hereby dismissed and the defendant is
          placed on the Community Alternative to Prison Program, to expire October 21, 2001.
          Defendant’s placement on the Community Alternative to Prison Program is
          conditioned upon his not hereafter violating any of the laws, of any State or of the
          United States or being guilty of any misconduct inconsistent with good citizen- ship.
          It is further conditioned that he shall pay the costs in this cause. . . . [1]


On April 26, 1994, a violation of the CAP Program warrant issued alleging violation of the
following CAPP rules:

          Rule #6, . . . failing to be actively employed;
          Rule #7, . . . failing to keep his curfew;
          Rule #9, . . . failing to pay Court costs;
          Rule #10, . . . failing to report for supervision and counseling;
          Rule #12, . . . failing to submit to random drug screens;
          Rule #13, . . . failing to attend educational programs;
          Rule #15, . . . failing to perform community service; and
          Rule #16, . . . failing to pay community corrections fees.




          1
              W e are constrained to note the inconsistencies advanced by the record regarding the exact manner of sentence
the Appella nt was serv ing at the tim e of his rev ocation. The record suggests that the Appellant was serving a sentence
imposed under the Com munity Correctio n Act. In th is regard, w e would note that if the trial court intended the sentence
to be a com munity correction s sentence , the senten ce wou ld be illegal as there is no a uthority in the Criminal Sentencing
Reform Act of 19 89 for the impositio n of a com munity correction s sentence followin g revoc ation of p robation . See
T E N N . C O D E A N N . §§ 40-3 5-310 , 40-35- 311; State v. Bowling, 958 S.W.2d 362, 363 (Tenn. Crim. App. 1 997); State
v. Bruce C ole, No. 02C01-9708-CC-00324, (Tenn. Crim. App. at Jackson, June 11, 1998); State v. Roger Dale Vance,
No. 03C01-9808-CC-00317 (Tenn. Crim. App. at Knoxville, Aug. 31, 1999). Moreover, w e note that the Appellant’s
original term of probation was to expire on April 26, 1999, thus, the court’s 1993 transfer of the Appellant to the CAP
Program extende d the perio d two y ears. This ac tion is consiste nt with a term of prob ation or p robation coupled with
comm unity correction s and is inconsisten t with a sente nce of co mmu nity corre ctions. See gen erally T E N N . C O D E A N N .
§ 40-35-308(c). Despite these contradictions, the same general principles applicable to a probation revocation
proceeding are equa lly relevan t to revoca tion of a co mmu nity correction s sentence . State v. Harkins, 811 S.W.2d 79,
83 (Tenn. 1991). Nonetheless, we emphasize the importance of clearly articulating the precise nature and manner of
service of the sentenc e and the avo idance of imp osing non-statuto rily authorized senten ces.




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                                               Analysis

        A trial judge may revoke a suspended sentence if the court should find by a preponderance
of the evidence that the defendant has violated the conditions of probation. TENN. CODE ANN. §
40-35-311(b)-(d). In other words, proof need not be established beyond a reasonable doubt. State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

        This court reviews a revocation under an abuse of discretion standard. See State v.
Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997) (citing Harkins, 811 S.W.2d at 82; State
v. Delp, 614 S.W.2d 395 (Tenn. Crim. App. 1980)). This means that the evidence need only show
that the trial judge has exercised “conscientious and intelligent judgment in making the decision
rather than acting arbitrarily.” See State v. Leach, 914 S.W.2d 104, 107 (Tenn. Crim. App. 1995)
(citing Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980), perm. to appeal denied, (Tenn.
1981)). Thus, in reviewing the trial court’s action, it is our obligation to examine the record and
determine whether the trial court has exercised a conscientious judgment. State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991).

        The Appellant’s challenge to his revocation from the CAP Program and resulting
confinement in the Department of Correction is two-fold. First, he argues that he was not afforded
minimal due process rights as required by Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756 (1973);
Delp, 614 S.W.2d at 397. Second, the Appellant contends that in resentencing him to TDOC, the
trial court failed to consider the principles of sentencing and, in particular, his potential for
rehabilitation or treatment.

         It is undisputed that the due process guarantees addressed by Gagnon v. Scarpelli attached
to this revocation proceeding. It bears repeating that these guarantees require: (a) written notice of
the claimed violation; (b) disclosure to the probationer of the evidence against him; (c) opportunity
to be heard in person and to present witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not
allowing confrontation); (e) a neutral and detached hearing body; and (f) a written statement by the
factfinder as to the evidence relied on and reasons for revoking probation. After review, we find
these rights were afforded in this case. As an aside, we believe it instructive, however, to comment
upon the Appellant’s argument that the rules of the CAP Program allegedly violated were never
proven at the hearing and, as such, the State failed to carry its burden of proof.

        A grant of probation or placement in a community corrections program constitutes a
behavioral contract between the defendant and the granting authority, the trial court. In order to
satisfy notice requirements, the terms and conditions of the behavioral agreement should be reduced
to written form and signed and acknowledged by the defendant. This memorandum should then be
approved by the court and filed in the trial record. It is rudimentary law that the party seeking
enforcement of a contract, in this case, the State, is first required to place into evidence the contract.
This was not done in this case. Notwithstanding this failure, the warrant served upon the Appellant
for violation of the CAP Program is included in the record. The warrant sets forth specific violations

                                                   -3-
of the Appellant’s “program rules and regulations.” Moreover, at the revocation hearing, the
Appellant’s case manager testified to various reporting requirements, community service
requirements and the payment of fines which were imposed as conditions of the program. No
objection was entered by the Appellant regarding the validity of these program requirements or to
the CAPP warrant. For these reasons, objections to the State’s failure to introduce the “rules of
CAPP” at the hearing are waived.

       With regard to the Appellant’s second issue, this court has previously held that while the
consideration of sentencing principles is mandatory in determining a defendant’s original sentence,
“reference to these principles is not necessary in determining the appropriate sanction following
revocation of probation.” State v. Howard Luroy Williamson, Jr., No. 02C01-9507-CC-00201
(Tenn. Crim. App. at Jackson, Sept. 30, 1996); see also State v. Stevie Q. Taylor, No. 02C01-9504-
CC-00108 (Tenn. Crim. App. at Jackson, May 1, 1996) (application of sentencing principles
appropriate to appellant’s case concluded upon imposition of sentence). As such, this contention is
also without merit.

         Additionally, we conclude that the trial court did not abuse its discretion in revoking the
Appellant’s non-incarcerate sentence. The Appellant’s case manager testified that the Appellant was
placed in the CAP Program on October 22. He failed to report three days later, October 25. The
Appellant did contact the office on October 25. At this time, he was told to report on October 29,
which he did. The Appellant was then told to report on November 1; he failed to report from
October 29 to November 8. Additionally, the case manager stated that, since the Appellant never
obtained telephone service, she was unable to monitor compliance with his curfew. Although his
attendance at counseling sessions was a requirement of the program, the Appellant “came [only] 19
out of 29 times.” Specifically, he completed Alcohol and Drug I; he attended four of eight meetings
in Alcohol and Drug II; he completed anger stress; he attended one meeting for self-esteem
counseling; and he attended eight of sixteen individual counseling meetings. The case manager also
testified that the Appellant only reported to her sporadically despite the condition that he report
weekly. The Appellant failed to pay fines, he failed to do community service, he failed to pay fees,
and he provided no verification of work. The Appellant last reported on March 21, 1994. After this
date, he remained absent from the program for five years and seven months or until his arrest in
October 1999.2

        The Appellant’s conduct demonstrates that he is ill-suited for a sentence involving release
in the community. The Appellant has blatantly rejected all attempts at rehabilitation. In light of the
Appellant’s refusal to comply with program reporting requirements, the trial court was statutorily
authorized to reinstate the Appellant’s original eight-year Department of Correction sentence. See
TENN. CODE ANN. § 40-35-310; TENN. CODE ANN. § 40-36-106(e)(4). Based on the record before
us, we cannot conclude that the trial court abused its discretion in revoking the Appellant from his

         2
           Interestingly, the proof also established that during the Appellant’s five-year and seven month absence from
the program , he contin ued to live with his sister and mother and remained employed as a waiter at the Radison for
essentially this same period of time.

                                                         -4-
non-incarcerative status and by ordering the Appellant to serve his original sentences in the
Department of Correction.

       The judgment of the trial court is affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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