         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 25, 2006

                 STATE OF TENNESSEE v. JERRY N. ELDRIDGE

                   Direct Appeal from the Circuit Court for Stewart County
                          No. 4-1162-CR-99     Robert Burch, Judge



                   No. M2004-01080-CCA-R3-CD - Filed February 16, 2006


Following a revocation hearing, the trial court revoked the probation of Defendant, Jerry Eldridge,
and ordered him to serve the remainder of his sentence in confinement. In his appeal, Defendant
argues that his trial counsel rendered ineffective assistance during the revocation hearing, and that
the trial court erred in finding that he had violated the terms of his probation. After a review of this
matter, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT
W. WEDEMEYER , JJ., joined.

Todd Hansrote, Clarksville, Tennessee, for the appellant, Jerry N. Eldridge.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
Dan M. Alsobrooks, District Attorney General, and Carey J. Thompson, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                              OPINION

I. Background

        Defendant was indicted in March 1999, of one count of burglary other than a habitation and
one count of theft of property valued over $1,000 but less than $10,000, both Class D felonies. On
March 22, 1999, Defendant entered a plea of guilty to the burglary charge and was sentenced to four
years, all of which was suspended, and Defendant placed on probation. As part of the plea
agreement, an order of nolle prosequi was entered as to the theft charge. The terms of Defendant’s
probation agreement, among other conditions, required him to report to his probation officer, to obey
the laws and report any arrests, and to refrain from illegally possessing or using drugs or marijuana.
        Defendant was immediately released to Calloway County, Kentucky officials on a detainer
warrant to begin serving a sentence for a prior conviction in that state. Defendant was released from
the Calloway County jail on March 27, 2000, and arrested approximately two weeks later in that
county on a burglary charge. On April 18, 2000, Defendant entered a plea of guilty to criminal
trespass. On November 27, 2000, Defendant was arrested in Marshall County, Kentucky, for driving
under the influence, driving on a suspended license, possession of prescription drugs in an
improperly marked container, illegal possession of the legend drugs Phenegren and Zantac,
possession of marijuana, possession of drug paraphernalia, and receiving stolen property. On June
13, 2001, Defendant was arrested and charged with escape from jail.

        A probation violation report was filed in the case sub judice on July 18, 2001, alleging that
Defendant had violated the terms of his probation because he failed (1) to report his arrests and
convictions in Kentucky; (2) to report to his probation officer as required; (3) to pay court costs; and
(4) to provide a DNA sample.

        At the probation revocation hearing, Bill Parsons, Defendant’s probation officer, testified that
he commenced supervising Defendant on March 22, 1999. Mr. Parsons met with Defendant on the
day of his guilty plea submission hearing, reviewed the terms of Defendant’s probation with him,
and told Defendant to contact him as soon as he was released from confinement in Calloway County,
Kentucky. Mr. Parsons said that his records indicated that Defendant was released on March 27,
2000, but Defendant did not report to Mr. Parsons. Mr. Parsons estimated that between his guilty
plea in March 1999 to the revocation hearing in March 2004, Defendant had spent approximately
forty months, off and on, incarcerated in Kentucky. This resulted in approximately twenty months
that Defendant was not incarcerated. Mr. Parsons stated that it was his understanding that Defendant
had finished serving all of his sentences stemming from his arrests in Kentucky. Mr. Parsons also
acknowledged that Defendant had paid his court costs since the filing of the report of probation
violation.

        On cross-examination, Mr. Parsons said that he did not personally meet with Defendant after
March 22, 1999, although he acknowledged that Defendant called him from the Calloway County
jail several times. Mr. Parsons said that he verified monthly that Defendant was incarcerated in
Kentucky, but he did not have any contact with Defendant during those periods when he was not
confined.

       Defendant testified that Mr. Parsons accurately summarized his Kentucky convictions and
periods of incarceration. Defendant said, however, that he was not convicted of all of the charges
stemming from his November 27, 2000, arrest in Marshall County, Kentucky. Defendant said that
he was convicted of escaping from jail because he did not return from work release one day.

         Defendant said that he knew he was supposed to report to Mr. Parsons when he was released
from confinement in Kentucky, but he was depressed over his divorce. When he finished serving
his last sentence in Kentucky, Defendant said that he called Mr. Parsons and told him that he “was



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headed back here.” Defendant acknowledged that he and counsel had discussed the community
corrections program.

        The trial court found Defendant in violation of the terms of his probation agreement because
he failed to report to his probation officer during the periods he was not incarcerated in Kentucky,
and because he was convicted of additional criminal offenses in Kentucky while on probation in
Tennessee. The trial court ordered Defendant to serve his original four-year sentence for burglary
in confinement.

II. Standard of Review

        A trial court may revoke probation and order the imposition of the original sentence upon a
finding by a preponderance of the evidence that the person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310, 311. The decision to revoke probation rests within the sound
discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
Revocation of probation is subject to an abuse of discretion standard of review, rather than a de novo
standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is abused only if the record
contains no substantial evidence to support the conclusion of the trial court that a violation of
probation has occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof
of a violation need not be established beyond a reasonable doubt, and the evidence need only show
that the trial judge exercised a conscientious and intelligent judgment, rather than acting arbitrarily.
Gregory, 946 S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). The
trial court retains the discretionary authority to order the defendant to serve his or her original
sentence in confinement. See State v. Hunter, 1 S.W.3d 643, 646 (Tenn. 1999).

III. Grounds for Revocation

        Defendant contends that he did not violate the terms of his probation agreement. He appears
to argue that the trial court erroneously based its revocation on Defendant’s conviction in Kentucky
which occurred prior to the Tennessee offense which was the subject of his plea agreement. The trial
court, however, revoked Defendant’s probation upon a finding that he did not report to his probation
officer after he was released from confinement in Kentucky, and because he was convicted of other
criminal offenses in Kentucky after he was placed on probation in Tennessee. Defendant admitted
that he did not report to his probation officer as required and that he committed the other offenses.
These violations are sufficient to support the trial court’s revocation. See State v. Gabel, 914 S.W.2d
562, 564 (Tenn. Crim. App. 1995) (The commission of a crime while on probation constitutes
substantial evidence that a violation of probation has occurred.) Defendant is not entitled to relief
on this issue.

IV. Ineffective Assistance of Counsel

       Defendant argues that he received ineffective assistance of counsel during the revocation
hearing because his counsel failed to advise Defendant that he had the right to introduce evidence


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in his behalf, and because counsel failed to investigate any mitigating circumstances. Defendant also
argues generally that his due process rights were violated because of the ineffectiveness of counsel.

         Relying on Rule 36(a) of the Tennessee Rules of Appellate Procedure, the State argues that
Defendant has waived any issue of ineffectiveness of counsel at the revocation hearing essentially
because he failed to object to his counsel’s performance during the hearing. Rule 36(a) provides that
relief shall not be granted on appeal “to a party responsible for an error or who failed to take
whatever action was reasonable available to prevent or nullify the harmful effect of an error.” A
question of waiver may arise in a number of situations. See State v. Walker, 910 S.W.2d 381, 386
(Tenn. 1995) (Issue waived when the defendant failed to object to the admission of certain evidence
at trial or raise the issue in his motion for new trial); State v. Smith, 42 S.W.3d 101, 112-13 (Tenn.
Crim. App. 2000) (Issue concerning prosecutorial misconduct waived when the defendant made no
contemporaneous objection to the prosecutor’s comments during closing argument). In the context
of a revocation hearing, issues concerning the introduction of a particular piece of evidence
supporting revocation may result in waiver if no contemporaneous objection is entered to at the time
the evidence is introduced. State v. Jason Allen Mobley, No. W2001-02022-CCA-R3-CD, 2002 WL
31624732, * 2 (Tenn. Crim. App., at Jackson, Nov. 15, 2002), perm. app. denied (Tenn. Mar. 10,
2003); see also State v. Kendrick D. Hutton, No. M2004-00586-CCA-R3-CD, 2005 WL 1931405,
*1 (Tenn. Crim. App., at Nashville, Aug. 11, 2005), no perm. app. filed (The defendant waves any
objection to the judge presiding at his revocation hearing if he fails to enter a contemporaneous
objection).

         However, while the underlying issue may be waived, we cannot conclude that allegations of
ineffective assistance of counsel based on counsel’s failure to raise such issues at the revocation
hearing are waived. As we have previously concluded in the post-conviction forum, if a petitioner’s
allegations of ineffective assistance are taken as true, “the failure to raise any potential ground for
relief is attributable to counsel’s incompetence, not the petitioner’s waiver.” Kendricks v. State, 13
S.W.3d 401, 405 (Tenn. Crim. App. 1999). Thus, we will address the merits of Defendant’s
ineffective assistance of counsel allegations.

        Although the right to counsel is guaranteed in criminal cases, the right to counsel at a
revocation hearing is not constitutionally guaranteed. Gagnon v. Scarpelli, 411 U.S. 778, 789-90,
93 S. Ct. 1756, 1763, 36 L. Ed. 2d 656 (1973); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975);
Young v. State, 539 S.W.2d 850, 854 (Tenn. Crim. App. 1976). However, a defendant is entitled to
the “minimum requirements of due process” at a revocation hearing which frequently cannot be
guaranteed without the appointment of counsel. Gagnon, 411 U.S. at 790, 93 S. Ct. at 1764. These
rights include: (1) written notice of the claimed violations of probation; (2) disclosure to the
defendant of the evidence against him; (3) the opportunity to be heard in person and present
witnesses and documentary evidence; (4) a conditional right to confront and cross-examine adverse
witnesses; (5) a neutral and detached hearing body; and (6) a written statement by the fact-finders
as to the evidence relied upon and reasons for revoking probation. Id. The effectiveness of counsel
at a revocation hearing does not raise a constitutional issues unless counsel’s performance was so
defective that one of the defendant’s due process rights was violated. State v. Richard Lee Kiser,


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No. 01C01-0503-CC-00071, 1995 WL 715510, at *3 (Tenn. Crim. App., at Nashville, Dec. 6, 1995),
no perm. app. filed; see also State v. David W. Sonnemaker, No. E2003-01402-CCA-R3-CD, 2004
WL 483239, at *3 (Tenn. Crim. App., at Knoxville, March 12, 2004), perm. app. denied (Tenn. Oct.
11, 2004); State v. Larry Ammons, No. W2001-00834-CCA-R3-CD, 2002 WL 1482675 (Tenn.
Crim. App., at Jackson, Mar. 18, 2002), perm. app. denied (Tenn., Sept. 23, 2002).

        The purpose of a revocation hearing is to determine whether there is probable cause to
believe that the defendant has violated a condition of his or her probation. See Morrisey v. Brewer,
408 U.S. 471, 486-87, 92 S. Ct. 2593, 2602, 33 L. Ed. 2d 484 (Tenn. 1972). If the defendant admits
that he violated his probation, and the violation is a reasonable ground for revoking probation, then
“that would end the matter . . . [and] dispose of the due process claims.” Id. at 490, 92 S. Ct. at
2605.

        Defendant admitted during his testimony at the revocation hearing that he did not report to
his probation officer as required by the terms of his probation agreement, and that he was convicted
of additional criminal acts in Kentucky after he was placed on probation in Tennessee. Thus, “no
disputed facts or contested issues remained to be resolved through additional witnesses,” and
Defendant has failed to show how any other action on the part of counsel would have affected the
outcome of the revocation hearing. See State v. Jaquece Fitzgerald, No. M2004-02441-CCA-R3-
CD, 2005 WL 1353303, at *3 (Tenn. Crim. App., at Nashville, June 8, 2005), no perm app. filed.

        We note that the majority of Defendant’s allegations of ineffective assistance of counsel
relate to the trial court’s exercise of its discretion in ordering Defendant to serve his sentence in
confinement rather than some form of alternative sentencing, and not the revocation itself. That is,
Defendant argues that his counsel’s assistance was deficient because he failed to present any
mitigating evidence which would support a sentence of community corrections rather than a sentence
of confinement.

        This Court is not a fact-finding body authorized to conduct hearings and determine disputed
issues of fact. Tenn. Code Ann. § 16-5-108(a); State v. Williams, 52 S.W.3d 109, 121 (Tenn. Crim.
App. 2001). Issues of ineffective assistance of counsel, such as those raised by Defendant, are
generally reserved for the post-conviction forum because they demand a “significant . . . amount of
development and factfinding.” Kendricks, 13 S.W.3d at 405. An order revoking probation,
however, does not impose a new sentence that may be challenged under the Post-Conviction
Procedure Act; it merely ends the probation term. See Young v. State, 101 S.W.3d 430, 432-33
(Tenn. Crim. App. 2002).

        Based on our review, Defendant was afforded his constitutionally guaranteed right of due
process during the revocation of his probation. Thus, counsel’s conduct during the hearing does not
present a constitutional issue. The trial court had the discretion to order Defendant to serve his
original sentence in confinement. See Hunter, 1 S.W.3d at 647. Defendant acknowledged that he
continued to commit criminal offenses while on probation in Tennessee, one of which was similar
to his Tennessee conviction which lead to his probation. In addition, Defendant admitted that he


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violated the terms of his work release program in Calloway County, Kentucky, by failing to return
to the jail as required which reflects negatively on his amenability to rehabilitation. Based on our
review of the record, the trial court did not abuse its discretion in ordering Defendant to serve his
sentence in confinement.

        Accordingly, we conclude that Defendant was afforded his due process rights during the
revocation hearing, that the trial court did not err in revoking Defendant’s probation, and that the trial
court did not abuse its discretion in ordering Defendant to serve his sentence in confinement.

                                           CONCLUSION

        After a thorough review, we affirm the judgment of the trial court.

                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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