        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 17, 2013

        STATE OF TENNESSEE v. DUSTIN MARSHALL GOFORTH

             Direct Appeal from the Criminal Court for Sumner County
                      No. 607-2010     Dee David Gay, Judge


               No. M2012-00791-CCA-R3-CD            Filed October 17, 2013


Defendant, Dustin Marshall Goforth, was serving a suspended eight-year sentence on
supervised probation. Violation of probation warrants were filed, and his suspended sentence
was revoked after an evidentiary hearing. The trial court ordered the sentence to be served
by incarceration in the Department of Correction. In his sole issue on appeal, Defendant
asserts that the trial court erred by denying Defendant’s motion for the judge to recuse
himself in this case prior to the evidentiary hearing. After review, we affirm the judgment
of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, Jr. and R OBERT W. W EDEMEYER, JJ., joined.

Lawren B. Lassiter, Gallatin, Tennessee, for the appellant, Dustin Marshall Goforth.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General; and Jason Criddle, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       Defendant pled guilty to three charges of burglary of a motor vehicle and two charges
of Class E felony theft. He received an effective sentence of eight years, and was ultimately
placed on intensive supervised probation. Violation of probation warrants were filed in
August and in September of 2011. Counsel was appointed, and a proposed negotiated
disposition of the warrants was submitted to the trial court on December 12, 2011. The trial
court refused to accept the agreement which involved incarceration for one year with credit
for time served, followed by placement back on supervised probation.
        The matter came before the trial court again the following day. Defendant’s counsel
stated that the parties had an agreement, but before he could announce it, Defendant spoke
up and stated that he wanted to have a hearing. Accordingly, the trial court set the matter for
hearing on January 30, 2012. On that date it was announced that the parties had reached
another agreement, this time clarifying that the prior agreement was for 270 days of
incarceration followed by probation, and the new agreement required 365 days of
incarceration, “day for day” followed by reinstatement of probation. The trial judge
expressed his concerns about the proposed negotiated disposition and refused to accept the
new proposed settlement. The matter was ultimately set for a hearing on March 2, 2012.
Prior to the scheduled hearing, on February 28, 2012, Defendant filed a motion for the trial
judge to recuse himself from hearing Defendant’s probation revocation proceeding. In
support of his motion, Defendant alleged that the trial judge was not “impartial and
disinterested” in his case, as evidenced by comments made by the trial court during previous
court appearances and by the fact two proposed negotiated settlement agreements were
rejected by the trial judge.

        A hearing on the recusal motion was held immediately prior to the scheduled
probation violation hearing. The attorneys presented arguments, but Defendant did not
testify at the motion hearing, and no other proof was offered. Defendant’s counsel did not
quote or even paraphrase any specific comments by the trial judge in support of the recusal
motion. Defense counsel did make reference to Defendant’s feeling that he could not receive
a fair hearing by the trial judge because when the trial court rejected one of the proposed
settlements, the trial judge stated that Defendant “could have a hearing, or he could go ahead
and put his sentence into effect.” Defense counsel represented to the trial court that
Defendant “felt like us having a hearing would be a waste of everybody’s time at this point.”
At the hearing, defense counsel further alluded to his client’s belief that the trial court had
already determined, prior to the revocation hearing, that Defendant had in fact committed
acts which justified revocation of his probation and that Defendant should thus be ordered
to serve the entire sentence.

        The State’s position at the hearing of the recusal motion was that even though the trial
court had twice rejected negotiated dispositions of the revocation warrant, the trial judge had
said nothing indicating he had already determined the ruling before hearing the facts. Thus,
according to the State, no grounds justified recusal. In ruling on the motion for recusal, the
trial judge included the following in his remarks:

        THE COURT:             Okay. I think the bottom-line here is that I have
                               rejected two possible dispositions on a probation
                               violation matter. The defendant remembers - - it
                               seems to be what I remember. I stated the last time

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                      that he could have a hearing or put his eight-year
                      sentence into effect. I made no statement at that time
                      of what I would do.

***

       Now, the law, there are two standards, objective standard and the
subjective standard. (As Read): The subjective standard is whenever a
judge has any doubt as to his or her ability to preside impartially in a
criminal case, then he or she must recuse himself or herself.

        I have no doubt in my mind whatsoever that I can sit and hear any
evidence. I am aware that all these charges could have been dismissed. I
was not given any of that information, or there is a possibility that he could
have been convicted of one or more. I don’t know at this time. But I feel
as a judge who has placed this defendant on probation that I had better find
out what is going on here, so I will. There’s no reason that I cannot hear
any evidence objectively, fairly, impartially.

        So as far as the subjective standard goes, I see no - - there is no doubt
that I can preside impartially in this probation violation hearing.

       Secondly, it’s a little bit different. It’s an objective standard.
Whether the judge believes his or her impartiality can reasonably be
questioned. And the exact wording is, (As Read): When a person of
ordinary prudence in the judge’s position knowing all of the facts known to
the judge would find a reasonable basis for questioning the judge’s
impartiality.

       Now, I’ve gone through a long litany here of the background of the
case up to this point to where I have not felt comfortable in accepting
dispositions based on the fact that there are five arrests, based on the fact
that the Defendant was not reporting, based on the fact that he could
possibly be on the lam.

       Now, there is nothing wrong or improper or unreasonable or
biasesness or prejudice, one way or the other, and this Court wanted to
know what in the world is going on here. There’s a possibility that this
defendant has been acquitted, or these charges have been dismissed. And
they were not warranted. There’s a possibility that - - I don’t know, there

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        might be explanations for some of these things. But based upon the
        information that I was given and my responsibility as a trial judge in
        supervising people on probation and administering justice and protecting
        the public, there is nothing in this whole record to show that my impartiality
        in this matter with these issues can be reasonably questioned.

               So, therefore, for that reason as well, I respectfully deny the Motion
        to Recuse. I feel that I can be objective by subjective standard and an
        objective standard. The Motion to Recuse will be denied.

        On appeal, Defendant argues that the following comments by the trial judge, made at
hearings prior to the day the recusal motion hearing was held, require reversal of the
judgment in this case. At the December 12, 2011, court proceedings the following was
stated:

        [DEFENSE COUNSEL]:           Judge, [Defendant] is also an eight-year
                                     sentence out of your court. The agreement that
                                     I have with General Criddle is that he will do
                                     one year with credit from time served and then
                                     he’ll be released back onto probation.

        THE COURT:                   What kind of trouble did he get into on
                                     probation?

        [DEFENSE COUNSEL]:           Well, Judge, just looking at the warrant I know
                                     we had an initial was set forth - - I think he had
                                     some additional charges that he picked up in
                                     General Sessions Court, Judge.

        THE COURT:                   Was he convicted of those?

        [DEFENSE COUNSEL]:           Yes, he was, Judge.

        THE COURT:                   Why isn’t he doing his eight years?

        [DEFENSE COUNSEL]:           Judge, I can’t distinguish the difference
                                     between General Criddle and General James.
                                     [sic] I just know that the offer - -




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        THE COURT:                Okay. Maybe we ought to get General Criddle
                                  out here or maybe why don’t you talk to him
                                  and tell him that I’ve got a problem with this.
                                  If he’s been convicted of other crimes while
                                  he’s on probation he needs to go to the
                                  penitentiary. So you might want to talk to
                                  General Criddle and we’ll put this on hold.

      On January 30, 2012, the following exchange occurred between the trial court, the
prosecutor, and defense counsel:

        THE COURT:                [Defense counsel], did you have something?

        [DEFENSE COUNSEL]:        Judge, General Criddle and I have an
                                  announcement subject to your approval on
                                  VOP.

        THE COURT:                Go ahead. We can take it up.

        [DEFENSE COUNSEL]:        Mr. Goforth.

        GENERAL CRIDDLE:          Your Honor, the last time we were here I
                                  believe we had agreed on doing 270 days, day
                                  for day, with credit for time served on the
                                  warrant, and Your Honor rejected that.

        THE COURT:                Okay.

        GENERAL CRIDDLE:          We’re [proposing] 365 days, day for day.

        THE COURT:                Let me look and see what’s going on here.

        GENERAL CRIDDLE:          For credit for time served.

        THE COURT:                Thanks for giving me a heads-up there.

        GENERAL CRIDDLE:          Sure. I was actually not here when that was
                                  announced and Your Honor rejected it. So I’m
                                  not certain entirely what was said, but I do
                                  know that that’s what happened.

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DUSTIN GOFORTH, Having first being duly sworn, was examined and
advised as follows: [sic]

THE COURT:             Okay. General, I think the problem that I had
                       looking at the original warrant I always get
                       very concerned when somebody is arrested and
                       convicted of crimes while they’re on probation.

GENERAL CRIDDLE:       Yes, Your Honor.

THE COURT:             Contributing to the Delinquency of a Minor,
                       Simple Assault. There’s no real record here
                       of whatever happened to those and the
                       others - -

GENERAL CRIDDLE:       I believe he pled guilty in General Sessions
                       Court to - - was it two misdemeanors?

THE DEFENDANT:         I pled no contest to the - - they dropped the
                       drug paraphernalia. The domestic got
                       dropped to Simple Assault, I pled no
                       contest. They dropped the resisting.

THE COURT:             Okay. You see my concern - -

GENERAL CRIDDLE:       If Your Honor would like I can go get the
                       judgments from General Sessions - -

THE COURT:             That’s all right. They’re still convictions. And
                       then we’ve got another conviction for
                       Resisting Arrest, Possession of Drug
                       Paraphernalia, another Domestic Assault. He
                       failed to report the arrests. Failed to report
                       regular weekly office visits and reported
                       moving from his residence and did not provide
                       the new address.

                       I don’t see - - I mean, if this pans out, I don’t
                       see any reason for not imposing the



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                                     sentence. I think that’s what was disturbing
                                     me. So has surfaced here that would - -

        GENERAL CRIDDLE:             Your Honor, that’s obviously well within your
                                     authority to do. If that’s the case and Your
                                     Honor feels that that’s the only resolution
                                     you’ll accept then I suppose we just need to - -
                                     I’ll go get copies of the judgments. We’ll
                                     submit them, allow defense counsel - -

        THE COURT:                   We can have a hearing if you want to, but
                                     that - - I don’t see any need of putting
                                     somebody back on supervision with this
                                     much trouble.

        GENERAL CRIDDLE:             Yes, Your Honor.

        THE COURT:                   I’ll be glad to have a hearing if you want to.
                                     What we’ll do is we’ll just hold this on second
                                     call until you have a chance to talk.

(Emphasis added)

                                          Analysis

        The motion for recusal was filed prior to the July 1, 2012, effective date of the
provisions regarding recusal set forth in new Rule of the Supreme Court of Tennessee 10B.
See id. Compiler’s Notes. At the time of the recusal hearing, the following relevant provision
of the Code of Judicial Conduct was in effect:

        E.     Disqualification.

               (1)     A judge shall disqualify himself or herself in a proceeding in
                       which the judge’s impartiality might reasonably be
                       questioned, including but not limited to instances where:

                       (a)    the judge has a personal bias or prejudice
                              concerning a party or a party’s lawyer, or
                              personal knowledge of disputed evidentiary
                              facts concerning the proceeding.

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Rule of the Supreme Court of Tennessee 10, Canon 3(E)(1)(2011).

        On appeal, Defendant does not dispute the trial court’s inherent authority to reject
both the proposed negotiated settlements submitted by the parties. However, Defendant
further asserts, and we quote from his brief, that the situation was “more than a mere
rejection” of proposed agreed dispositions. Defendant states:

        The facts reveal a very firm expressed opinion of what is going to happen
        in this particular matter when the matter is on for hearing. The above-
        referenced comments made by the sitting trial judge rise to the level of more
        than just a rejection or even neutral court dicta.

       Generally a trial judge retains discretion over the issue of his or her recusal, State v.
Smith, 906 S.W.2d 6, 11 (Tenn. Crim. App. 1995), and unless the evidence in the record
shows that the trial judge abused that discretion, an appellate court will not reverse the trial
court’s decision. Pannell v. State, 71 S.W.3d 720, 725 (Tenn. Crim. App. 2001).

        In State v. Boggs, 932 S.W.2d 467 (Tenn. Crim App. 1996), this court affirmed the
trial court’s sentence imposed upon the defendant and in doing so rejected the defendant’s
argument that the trial court should have granted the defendant’s motion for the trial judge
to recuse himself from the sentencing hearing. In Boggs, the defendant pled guilty to
vehicular homicide and reserved for the trial court to determine the sentence after a
sentencing hearing. During the guilty plea hearing the trial judge made the following
comments to the defendant:

        [I]n vehicular homicide cases - in any type of homicide cases, even in the
        Class C classification - it is unusual for this Court to grant probation in
        those cases. As a matter of fact, I cannot recall a case I have handled in
        which I have given probation in that type of case.

        So I want to be up front and candid with you about that so that you
        understand that you are likely facing a term of imprisonment in this case;
        do you understand that?

Boggs, 932 S.W.2d at 471.

        The defendant subsequently filed a motion for the trial judge to recuse himself from
hearing her sentencing matter based upon these comments. The defendant asserted that the
trial judge could not be fair and impartial. At the hearing of the motion to recuse the trial
judge stated in part:

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         . . . I have not decided what is going to be the final disposition of this case.
         I have not decided what the sentence is going to be. I have not reached
         [that] point in the decision-making process.

                When I discussed with you . . . the likelihood of imprisonment, I
         wanted you to understand that, because of the nature and extent of this
         crime and the circumstances involving it, that there was a likelihood that
         you would serve some time in prison . . . .

                I . . . do not feel that I have prejudged this case or made any
         predetermination of the disposition of this case. I have now the benefit of
         a pre-sentence investigation that has come in this week. I have the benefit
         of some correspondence in this case from people on both sides of the issue,
         and I intend to continue in this case. I decline to recuse myself in this
         matter . . . .

                So I have no blanket policy in these cases. I don’t intend to ever
         have a blanket policy. I intend to approach every case on its own merits and
         address the issues that are presented by that particular case. . . .

Id., at 472.

       In concluding that the defendant in Boggs was not entitled to relief, this court stated,

                 A trial judge should recuse himself whenever he has any doubt as to
         his ability to preside impartially in a criminal case, or whenever he believes
         his impartiality can reasonably be questioned, State v. Cash, 867 S.W.2d
         741, 749 (Tenn. Crim. App. 1993); see also Lackey v. State, 578 S.W.2d
         101, 104 (Tenn. Crim. App. 1978). Moreover, recusal is warranted when
         a person of ordinary prudence in the judge’s position, knowing all of the
         facts known to the judge, would find a reasonable basis for questioning the
         judge’s impartiality. Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App.
         1994). Any comments made by the trial court must be construed in the
         context of all the facts and circumstances to determine whether a reasonable
         person would construe those remarks as indicating partiality on the merits
         of the case. Id. at 822. (citations omitted).

                In the instant case, the trial judge indicated that he fully understood
         the need for impartiality and an open mind before entering the sentencing
         phase of the proceedings. He also explained that his comments at the guilty

                                               -9-
        plea hearing were made to ensure that the appellant was voluntarily entering
        a guilty plea with the understanding that incarceration could be a
        consequence of her plea.

Id.

        The case sub judice is a close case. However, a thorough review of the entire record
persuades us that the record does not preponderate against the trial court’s decision. When
taken in context under the totality of the circumstances, and viewing this in light of the
limited options available to the trial court when a violation of probation is proven, we
conclude that the trial court properly exercised its authority to reject the proposed
settlements. Although we are aware of no requirement that the trial court state its reason(s)
for rejecting a proposed settlement in a probation violation case, the trial court chose to do
so at some length. The trial court essentially stated that if the allegations that criminal
offenses were committed during probation were proven, the trial court would order the entire
sentence to be served without placement back on probation. The trial court would have sent
the same message by simply refusing, without comment, to accept each of the proposed
settlement agreements which involved a return to probation after periods of incarceration.
We see little difference between the situation in Boggs and the situation in the case sub
judice. Defendant is not entitled to relief in this appeal.

       Accordingly, the judgment of the trial court is affirmed.


                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




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