        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               February 11, 2014 Session

              STATE OF TENNESSEE v. CHARLES E. MAY, JR.

             Appeal from the Criminal Court for Rutherford County
                     No. F-64197B      David Bragg, Judge



               No. M2013-00280-CCA-R3-CD - Filed May 12, 2014


Appellant appeals from the trial court’s denial of his motion to suspend the balance of a six-
year sentence he was serving in the Rutherford County jail. He claims that the trial court
erred; (1) in limiting Appellant’s opportunity to present proof at the motion hearing; (2)
denying his motion to suspend sentence because of a waiver included in a probation violation
agreement; (3) denying Appellant’s motion on an improper basis; and (4) that Appellant
received ineffective assistance of counsel at the motion hearing. Discerning no error, we
affirm the judgment of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Gerald L. Melton, District Public Defender, Murfreesboro, Tennessee, for the appellant,
Charles E. May.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; and William C. Whitesell, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

                                    Factual Background

       On April 1, 2010, Appellant, Charles E. May, Jr., pleaded guilty to two counts each
of robbery, aggravated burglary, and aggravated assault. The trial court sentenced him to an
effective six-year sentence on supervised probation.
        On September 7, 2011, a probation violation warrant was filed alleging Appellant had
tested positive for marijuana on August 17, 2011, and failed to pay court costs and
restitution. On November 18, 2011, Appellant admitted to the alleged violations, he received
four days of jail credit and agreed “to serve sentence and waive application for a suspended
sentence if violates probation (Unless basis is inability to pay).”

       On June 4, 2012, a second probation violation warrant was filed alleging that
Appellant had received a citation for drug possession; twice traveled to Georgia without his
probation officer’s permission; and again failed to pay court costs and restitution. After a
probation hearing, the trial court revoked probation on September 7, 2012, and ordered that
Appellant serve his sentence of six years with jail credits totaling one year and four days.

        On November 26, 2012, Appellant filed a motion to suspend sentences. After a
hearing, the trial court denied the motion because “there has been no significant change []
in his circumstances.”

        At the motion for suspended sentence hearing on December 14, 2012, Appellant
admitted that he twice violated his probation. At the time of the hearing, he had served six
months of jail time in the Rutherford County jail. During that time, he had been “working
on his faith.” He had served as trustee in the jail, had displayed good conduct, and avoided
any disciplinary infractions while in jail.

        Appellant testified that if he were released back on probation, he would go to his
mother’s house in Murfreesboro. The parties stipulated that his mother confirmed this. He
was working on securing employment as an apprentice sheet metal worker. Appellant
testified that he wanted to change and stop “being in and out of jail.” He insisted that he
would try harder to comply with the conditions of his probation if the balance of his sentence
were suspended.

        Following the hearing on Appellant’s motion to suspend the balance of his sentence,
the trial court denied the motion finding there was no change in circumstances warranting
granting the motion.

                                           Analysis

       In this appeal Appellant raises four issues for review. First, he claims the trial court
improperly limited his presentation of proof in his motion to suspend the balance of his
sentence. Second, he claims the trial court improperly relied on the waiver included in the
probation violation agreement entered on November 18, 2010. Third, Appellant claims the


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trial court failed to make adequate findings when denying the motion. Last, Appellant argues
he received ineffective assistance of counsel at the motion hearing. We will address each of
these contentions seriatim.

                                     Limitation on Proof

       At the outset it should be noted that appeals from the denial of a motion to suspend
the balance of a sentence previously imposed are akin to proceedings under Tennessee Rules
Criminal Procedure 35, i.e., a motion for reduction of sentence. State v. Ruiz, 204 S.W.3d
772, 777 (Tenn. 2006). Thus, the trial court’s determinations in both types of proceedings
are reviewed under an abuse of discretion standard. Id. at 777-78. The key determination
to be made as to whether the balance of a previously imposed sentence should be suspended
pursuant to Tennessee Code Annotated section 40-35-306(c) is whether post-sentencing
circumstances warrant a suspension of the sentence. Id. at 778.

       In the instant case Appellant maintains he was unfairly limited by the trial judge in
presenting proof of his suitability for full suspension of his sentence. It appears that at the
Tennessee Code Annotated section 40-35-306(c) hearing Appellant tried to re-open matters
taken up at the probation violation hearing that resulted in his incarceration. However, a
transcript of that Tennessee Code Annotated section 40-35-306(c) hearing is not in the record
on appeal. Thus, we are precluded from assessing what relevance, if any, the Tennessee
Code Annotated section 40-35-306(c) hearing had at the probation violation hearing that is
the subject of this appeal. See State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993).
Moreover, from the record before us it appears that the trial court gave Appellant’s counsel
ample opportunity to present any evidence of post-sentencing circumstances that would
warrant full suspension of Appellant’s sentence. Appellant is not entitled to relief with
respect to this issue.

                             Use of Probation Violation Waiver

        It appears from the record that as part of Appellant’s agreement that he had violated
the conditions of his probation, Appellant signed a waiver where he agreed to serve his
sentence and not pursue the type of action under Tennessee Code Annotated section 40-35-
306(c) that is the subject of this appeal. Appellant claims that the trial court erroneously
relied on this waiver in denying the petition to suspend the balance of Appellant’s sentence.

     This Court has encouraged caution in the use of waivers such as the one in this case,
however, we have never forbidden their use. See e.g. State v. Lavon Lyn Nunnery, No.
M2006-01198-CCA-R3-CD, 2007 WL 1987795 at *3 (Tenn. Crim. App. at Nashville, July



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10, 2007); State v. Daven De Carlo Turner, No. M2006-02522-CCA-R3-CD, 2007 WL
1953000 at *2 (Tenn. Crim. App. at Nashville, June 27, 2007).

       Nevertheless, it appears that the trial court did not base its decision solely on the basis
of the waiver signed by Appellant. The trial court explicitly and repeatedly requested proof
of post-sentencing changes in circumstances that would warrant suspending the balance of
Appellant’s sentence. When none was forthcoming, the trial judge denied Appellant’s
petition. This issue is without merit.

                                   Change in Circumstances

       Appellant claims his circumstances following probation revocation have sufficiently
changed so that the trial court erred in denying his motion to suspend sentence. This Court
is hamstrung in its ability to review this issue due to the absence of a transcript of the
probation violation hearing. As noted previously, the primary question to be determined in
an action such as the instant case is whether a change in circumstance following probation
revocation warrants a suspension of the balance of the sentence. Ruiz, 204 S.W.3d at 778.
Without a record of the revocation proceeding it is difficult, if not impossible, to compare
Appellant’s circumstances at the time of revocation to those attendant at the time of his
motion to suspend was heard. Under these circumstances, this issue has not been properly
preserved for appeal. Ballard, 855 S.W.2d at 560-61.

      Nevertheless, from the incomplete record presented it appears the trial court denied
the motion based on a finding that there was no change in circumstance that warranted a
suspension of the balance of Appellant’s sentence. The trial judge stated:

       A motion was filed in November asking that [Appellant] be granted a
       suspended sentence. The Court finds that no basis to suspend the sentence at
       this time. No significant change in circumstances or significant change to
       cause the Court to reverse its decision entered in September, and would deny
       the motion at this time.

       Based on the record before us, it appears the trial court applied the correct legal
standard for cases such as this, and we can find nothing in this record to contradict the lower
court’s findings. This issue is without merit.

                                    Trial Court’s Findings

       Appellant argues that the trial court should have placed more detailed findings on the
record to support its decision. While such detailed findings by a trial court typically are


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helpful to an appellate court, there is no requirement in cases such as this that trial courts
make such findings and place them on the record. Tennessee Code Annotated section 40-35-
306 has no such requirement and neither does any other statute to which we have been
directed. This issue is without merit.

                             Ineffective Assistance of Counsel

       Finally, Appellant argues that his counsel at the hearing on the motion to suspend
sentence was ineffective in failing to present sufficient proof of a post-sentencing change of
circumstances to sustain the motion to suspend.

       The Sixth Amendment to the United States Constitution and Article I, section 9 of the
Constitution of Tennessee guarantee on accused in a criminal case the right to the effective
assistance of counsel.

        To succeed on a claim of ineffective counsel, the defendant must establish by clear
and convincing evidence that trial counsel was deficient. The defendant must further show
that, but for the deficient performance, the results of the proceeding would have been
different. Strickland v. Washington, 466 U. S. 668, 687, (1984); T.C.A. § 40-30-210(f). The
defendant must prove both deficient performance and prejudice to succeed on a claim on
ineffective assistance of counsel. State v. Burns 6 S.W.3d 453, 461 (Tenn. 1999). “[T]he
practice of raising ineffective assistance of counsel claims on direct appeal is ‘fraught with
peril’ since it ‘is virtually impossible to demonstrate prejudice as required’ without an
evidentiary hearing.” State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001).

        We have not been directed to any case holding that there is a right to effective
assistance of counsel at a motion to suspend the balance of a sentence ordered into effect
following probation revocation. However, even assuming such a right exists, Appellant has
failed to show counsel was ineffective at the suspension hearing. Appellant claims that
counsel at the hearing should have offered “relevant evidence” of Appellant’s changed
circumstances. Yet there is nothing in this record to indicate what that “relevant evidence”
would have been or even that it exists. Under these circumstances we will not find counsel
ineffective.

                                         Conclusion

       Based on the foregoing, the judgment of the trial court is affirmed.

                                           ___________________________________
                                           JERRY L. SMITH, JUDGE


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