         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 20, 2007

               STATE OF TENNESSEE v. LAVON LYN NUNNERY

                 Direct Appeal from the Circuit Court for Rutherford County
                             No. F-53814     Don R. Ash, Judge



                      No. M2006-01198-CCA-R3-CD - Filed July 10, 2007



The defendant, Lavon Lyn Nunnery, appeals from the judgment of the Rutherford County Circuit
Court, revoking his probation and imposing service of eight months in confinement followed by two
years of probation. In this appeal, the defendant argues that the state’s inclusion of waiver language
in his probation order violates Tennessee statute and that the trial court erred in revoking his
probation and ordering split confinement. Following our review of the record, parties’ briefs and
the applicable law, we determine no error exists in the court’s revocation of probation, and thus
affirm the court’s judgment.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J. and THOMAS T.
WOODALL, J., joined.

Tony L. Maples (on appeal and at trial), and James Smith (at trial), Murfreesboro, Tennessee, for the
appellant, Lavon Lyn Nunnery.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Jennings Jones, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

         The record reflects that the defendant pled guilty to aggravated assault with a deadly weapon.
Thereafter, on May 16, 2003, the defendant was sentenced to three years, suspended on supervised
probation. Approximately three months later, the defendant violated his probation; whereupon, the
trial court ordered the defendant to serve forty-five days in confinement and extended the defendant’s
probation to three years.1 Included as part of the conditions of the defendant’s extended probation
was a clause stating that the “defendant agrees that on any further violation[,] he will waive
application [and] serve sentence.”

        On May 31, 2005, a probation violation warrant was issued alleging that the defendant
violated the terms of his probation after being arrested and charged with an assault. Thereafter, a
probation revocation hearing was held on October 31, 2005. At the hearing, the defendant’s
probation supervisor, Jennifer Brittain, testified that the defendant had complied with all the
conditions of his probation except for being charged with assault. Ms. Brittain noted that the
defendant had not been convicted of the assault. Next, Larry Drummond, the alleged victim of the
assault, testified as to the facts underlying the assault charge. According to the victim, he and his
family were outside talking to some neighbors when the defendant “brought his pit bull out and
proceeded to tell the dog to sic ‘em.” The defendant had the pit bull on a leash, but the victim felt
threatened because the dog was pulling on the leash. The victim asked the defendant “not to do
that,” and the defendant responded, “ [y]ou don’t know how bad I want to let this dog go.” The
victim observed that the defendant had a beer bottle in his hand. The victim also noted that the pit
bull had been known to attack other dogs and that a year before the pit bull had “come after me and
my children . . . when we were walking down the street. . . . I had [to] hit the dog with a . . . full
Pepsi can.”

         At the conclusion of the victim’s testimony, the trial court determined it would continue the
probation revocation hearing until after the defendant went to trial on the assault charge. On April
16, 2006, the probation revocation hearing continued. At this hearing, Ms. Brittain testified that the
defendant had been given probation after being convicted of an aggravated assault. As part of the
conditions of his probation, the defendant agreed that upon any future violation he would serve out
the remainder of his sentence and waive application for suspended sentence. The defendant violated
the terms of his probation by committing an assault. Ms. Britain also noted that the defendant had
“maintain[ed] all [the] terms and conditions of probation” except for the new conviction for simple
assault.

         The defendant admitted that he had been found guilty of the assault after a bench trial.
However, the defendant claimed that he was going to appeal the verdict. The defendant also insisted
that he “did not assault anybody.” Referring to the terms of his probation agreement, the defendant
stated that he signed the agreement because “that’s the only way I was going to get out of jail. . . .
It’s my understanding the only option I was given was to sign the paper and do 45 days and get out
back on probation.” The defendant’s wife, Melissa Nunnery, testified that her husband never told
the pit bull to “sic ‘em.” Rather, the defendant and her son took the dog for a walk with a harness
and a leash. However, Mrs. Nunnery admitted that the defendant had recently been convicted of the
assault.




       1
           W e glean this information from the “Violation of Probation Order” included in the record.

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        At the conclusion of the hearing, the state argued that the defendant should serve out his
sentence because the “defendant has agreed that if he had any future violations, which include this
violation, he would serve out his sentence.” The defense counsel argued inter alia that the inclusion
of the language waiving application of probation in the probation agreement violated state statute
and public policy favoring alternative sentencing. The defense counsel also requested that the court
give the defendant “some term less than the entire sentence.”

       The trial court then made the following findings:

       Under 40-35-311(e) I’m to look at preponderance of the evidence whether or not this
       violation took place. And I have a transcript of the hearing I think where the alleged
       victim testified the first time. I’ll go ahead and make that Exhibit Number 1. Has
       there been sufficient proof of a probation violation to allow a conscious and
       intelligent judgment? I’m going to find, yes, there was. Has the State presented
       some factual evidence sufficient to support the charged violation? I’m going to find,
       yes, they have. He has been convicted . . . . And I’m going to find that his conduct
       in regard to this animal based upon the testimony that happened on October 31st plus
       the testimony that he has in fact violated his probation. So once that’s made then my
       options are serve the original sentence or a lesser sentence of the entire probationary
       term beginning anew or service of the probationary period then extend it for up to an
       additional two years. What I’m going to do, sir, is I’m going to grant you an
       alternative sentence. I’m going to make you do eight months on this. And then
       you’ll be released on probation. And then I’m going to extend your probation two
       years from the time of your release.

                                                 I.

        Initially, we note that a trial court may revoke a sentence of probation upon finding by a
preponderance of the evidence that the defendant has violated a condition of that sentence. See
Tenn. Code Ann. §§ 40-35-310, 311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The
judgment of the trial court to revoke probation will be upheld on appeal unless there has been an
abuse of discretion. Harkins, 811 S.W.2d at 82. If the trial court has exercised “conscientious
judgment in making the decision rather than acting arbitrarily,” then there is no abuse of discretion.
State v. Leach, 914 S.W.2d 104, 107 (Tenn. Crim. App. 1995). Discretion is abused only if the
record contains no substantial evidence to support the trial court’s conclusion that a violation has
occurred. Harkins, 811 S.W.2d at 82; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App.
1997).

       In this appeal, the defendant argues that the inclusion of the provision – that the defendant
waive future application for probation if he violates the terms of his probation – contravenes
Tennessee statute and public policy favoring alternative sentencing. Oddly, however, the defendant
does not cite to any sentencing statute; but rather, the defendant cites a civil statute setting forth



                                                 -3-
conditions on the authority to confess judgment.2 The defendant submits that the trial court’s
consideration of this waiver provision was improper. The defendant also argues that the court
improperly enhanced his sentence considering the evidence presented at the hearing.

         We begin our review by noting our own reservations regarding the state’s incorporation of
this waiver clause in the defendant’s probation agreement. First, it appears that the incorporation
of this clause may be an unreasonable condition of probation in that it places a tremendous amount
of pressure upon a defendant to capitulate to the condition in exchange for his or her liberty. See
e.g., Tenn. Code Ann. § 40-35-303(d)(9). Second, the execution of this waiver clause may operate
to minimize the state’s burden of proof. Clearly, the state must prove a violation of probation by
a preponderance of the evidence. See id. § 40-35-311(e). Finally, the execution of this waiver clause
may operate to deny the defendant the right to appear at a hearing and present evidence in his own
behalf. See id. 40-35-311(b); see also Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). Nonetheless,
we need not reach the merits of this issue because the record clearly reflects the trial court
scrupulously followed the revocation procedures set forth in Tennessee Code Annotated section 40-
35-311.

        Indeed, the record reflects that the defendant was convicted of a simple assault after
threatening to “sic” his pit bull on a neighbor. Based upon this conviction, the trial court found that
the defendant violated a condition of his probation. In accordance with Tennessee statute, the court
revoked the defendant’s probation and ordered the defendant to serve eight months followed by an
extended probationary period of two years. See Tenn. Code Ann. §§ 40-35-308(c), -310, -311; State
v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999). Accordingly, we perceive no abuse of discretion by the
trial court in revoking the defendant’s probation and ordering him to serve eight months in
confinement followed by probation of two years. The judgment of the trial court is affirmed.




                                                               ___________________________________
                                                               J.C. McLIN, JUDGE




       2
           The defendant cites Tennessee Code Annotated section 25-2-101, which states:

                 (a) Any power of attorney or authority to confess judgment which is given before an action
                 is instituted and before the service of process in such action, is declared void; and any
                 judgment based on such power of attorney or authority is likewise declared void.

                 (b) This section shall not affect any power of attorney or authority given after an action is
                 instituted and after the service of process in such action.



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