State of Tennessee v. Randall D.Bennett ( 2005 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs May 11, 2005
    STATE OF TENNESSEE v. RANDALL D. BENNETT
    Direct Appeal from the Criminal Court for Davidson County
    No. 99-D-2298    Seth Norman, Judge
    No. M2004-02119-CCA-R3-CD - Filed June 1, 2005
    The defendant, Randall D. Bennett, appeals the revocation of his probation, arguing that the trial
    court erred in revoking his probation based on the uncorroborated testimony of the defendant’s
    probation officer. Following our review, we affirm the order of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
    W. WEDEMEYER , JJ., joined.
    William A. Lane, Murfreesboro, Tennessee, for the appellant, Randall D. Bennett.
    Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
    S. Johnson, III, District Attorney General; and Debbie Housel, Assistant District Attorney General,
    for the appellee, State of Tennessee.
    OPINION
    FACTS
    On October 14, 1999, the defendant was charged by the Davidson County Grand Jury with
    rape of a child. On August 10, 2000, he pled guilty to rape, a Class B felony, and was sentenced to
    eight years split confinement, with one year of incarceration and the remaining seven years on
    supervised probation. The defendant’s probation was subject to a variety of conditions set out in
    three different documents. His guilty plea agreement and judgment form indicated that the defendant
    was to receive mandatory sex offender treatment and was to register with the sex offender registry.
    The probation order, signed by the defendant on August 10, 2000, contained several conditions
    including, inter alia:
    1) I will obey the laws of the United States as well as any municipal ordinances.
    ....
    4) I will work at a lawful occupation and support my dependents, if any, to the best
    of my ability.
    5) I will inform my probation officer before changing my residence or employment.
    I will get the permission of my Probation Officer before leaving the State.
    6) I will allow my Probation Officer to visit my home; employment site, or
    elsewhere, and will carry out all instructions he/she gives, and report to my Probation
    Officer as instructed.
    7) I will not use intoxicants (beer, whiskey, wine, etc.) of any kind, to excess, or use
    or have in my possession narcotic drugs or marijuana. I will submit to drug screens
    as directed.
    ....
    9) I will agree to pay all required fees to the Supervision and Criminal Injuries fund
    unless waived by appropriate authorities.
    Additionally, the probation order contained a special condition under Rule 10 for the defendant to
    attend a sexual offenders treatment program.
    On January 9, 2004, the defendant’s probation officer, George Harrien,1 filed a violation of
    probation affidavit alleging that the defendant had violated probation order Rule 4 by failing to verify
    lawful employment since October 7, 2003; Rule 6 by being discharged from officer instructed sex
    offender treatment; Rule 9 by failing to verify fee payment and owing fees dating back to June 2003;
    and Rule 10 by failing to properly register with the Tennessee Bureau of Investigation (“TBI”) Sex
    Offender Registry since December 27, 2002, and for being discharged from sex offender treatment.
    On January 28, 2004, the trial court entered an amended judgment, sustaining the probation
    violation and placing the defendant back on supervised probation with the additional condition that
    the defendant “make restitution of $300 to Dr. David Orvin at rate of $5/week.” On March 3, 2004,
    the defendant signed the Sex Offender Directives which included:
    3. I will attend, participate in, and pay for treatment or counseling with an approved
    treatment provider as deemed necessary by the Board, the Court, or my Officer, per
    TCA 39-13-706. I will continue in such treatment as instructed for the duration of
    1
    The probation officer’s name is spelled three different ways in the record: Harrien, Harrein, and Herion. We
    will therefore utilize the spelling in the initial violation of probation affidavit.
    -2-
    supervision unless my treatment provider, in consultation with my Officer, instructs
    me in writing that I have satisfactorily completed treatment.
    ....
    5. I will submit to and pay for a polygraph assessment and evaluation as instructed
    by the Board, the Court, my treatment provider, or my Officer. I understand that this
    will be required at least twice a year.
    6. If applicable, I will register within 10 days of my release with the TBI Sex
    Offender Registry and comply with the TBI monitoring program, per TCA 40-30-
    103.
    7. I will live only in a residence approved by my Officer and agree not to share
    residence with any person with a history of sexual offense conviction, with exception
    to residential treatment facilities. I will not move without prior approval from my
    Officer.
    On May 28, 2004, Harrien filed a second violation of probation affidavit alleging that the
    defendant had violated probation order Rule 1 by failing “to observe TCA 39-13-706 regarding sex
    offender treatment;” Rule 4 by failing to maintain a lawful occupation; Rule 6 by being discharged
    from sex offender treatment; Rule 10 and Sex Offender Directives Rule 3 by failing to attend sex
    offender treatment; and failing to provide proof of $5.00 weekly restitution payments since May 4,
    2004, as ordered by the court when the defendant’s probation was reinstated.
    On July 7, 2004, Harrien filed an amended affidavit, alleging that the defendant had violated
    probation order Rule 5 by failing to inform his probation officer of a change of address prior to and
    after moving; Rule 6 by failing to report since May 24, 2004, failing to submit to a polygraph
    evaluation as instructed, failing to properly register with the TBI Sex Offender Registry, and failing
    to receive officer approval of his “current unknown residence;” and Rule 10 by failing to properly
    register with the TBI Sex Offender Registry.
    At the defendant’s July 7, 2004, revocation hearing, Harrien testified that he had been the
    defendant’s probation officer since January 2003, and, during that time, the defendant had “various
    periods of non-compliance when it comes to probation and treatment.” The defendant originally
    signed the sex offender directives on January 14, 2000, although that document is not included in
    the record. The defendant signed another set of sex offender directives on March 3, 2004, under the
    supervision of Harrien. The defendant was in non-compliance when Harrien first began supervising
    him, including sporadic office visits as well as sporadic attendance at sex offender treatment
    meetings. Harrien first filed a violation report on July 25, 2003, detailing the defendant’s moving
    on two occasions without notifying Harrien, traveling outside the county without office supervision,
    failing to report to Harrien on seven different dates, as well as failing to attend sex offender treatment
    on six different occasions. He had also not updated his information on the TBI Sex Offender
    -3-
    Registry since December 27, 2002. However, Harrien did not seek a probation violation warrant at
    that time, but attempted to work with the defendant to “bring him into some form of compliance”
    in part because the defendant’s girlfriend was pregnant. Since then, the defendant had been
    terminated from his treatment provider, David Orvin of Atlantic Behavioral Systems. Harrien then
    sought the first probation violation warrant in January 2004, but “spoke on the [defendant’s] behalf”
    at the hearing and assisted the defendant in getting placed back on supervised probation.
    After being placed back on probation, the defendant’s “pattern of behavior, basically . . .
    continued.” The defendant missed treatment in February, made some of his restitution payments,
    and obtained sporadic employment “at best.” The last time the defendant reported to Harrien was
    May 24, 2004, and Harrien filed another probation violation report on May 27, 2004, based on the
    defendant’s discharge from treatment due to non-compliance, failure to maintain a lawful
    occupation, and failure to make weekly restitution payments. On the day of the hearing, Harrien
    filed an amended affidavit alleging the defendant failed to inform him of a change of address, failed
    to report as instructed since May 24, failed to submit to a polygraph evaluation, and failed to update
    his address with the sex offender registry. On cross-examination, Harrien testified that the defendant
    had been discharged from treatment twice for “[n]on-compliance with treatment directives, sporadic
    attendance and failure to pay his treatment fees.” The defendant had properly registered on the sex
    offender registry in January 2004 but had been in non-compliance since changing addresses in
    March, due to his failure to update his information on the registry within the required ten days of the
    move. Harrien also had no record of the defendant’s current address and did not know where the
    defendant was residing.
    The twenty-four-year-old defendant testified that he was working about fifteen hours a week
    for his pastor as an “[I]nternet consultant” and had been working over fifty hours a week for Labor
    Finders. However, he was no longer working for Labor Finders and had not reported his church
    work to Harrien. He had not talked to Harrien lately because the last time he called to report that he
    would not be able to attend a sex therapy class, Harrien told him he was going to file a probation
    violation report, which he did. The defendant wanted to meet with Harrien and his counselor, John
    Brogden, to “tell them . . . what’s going on and everything.” However, Harrien “didn’t want to hear
    about it” and “wouldn’t have the session with” the defendant. He acknowledged he had been
    discharged from his first treatment program because of non-payment and from the second program
    for non-attendance, although he contended his attendance was “pretty good.” The defendant
    admitted to moving without notifying Harrien. He also stated, “I know I did wrong. That’s why I’m
    hear [sic] to accept my consequences.” The defendant said he stopped reporting to Harrien because
    “it wasn’t going to make a difference if I contacted him or not, I’m still in trouble.” On cross-
    examination, the defendant admitted that within the last three and a half years, he probably had
    missed sex offender treatment classes about twenty-one times.
    Shauna Mason Garris, the defendant’s fiancée, testified the defendant had “done nothing but
    provide for us,” referring to herself and her two children. Garris stated she was pregnant with the
    defendant’s child, which was due in about ten weeks. She said that the defendant failed to attend
    treatment because they could not afford it and had lost a job because he had to be in court for his
    -4-
    January probation violation. She stated that the defendant had asked for “indigency,” but was denied
    because the “DA . . . didn’t want to sign off on it.” She and the defendant had always notified
    Harrien of their moves “except for this time.” On cross-examination, she acknowledged that she
    knew when she began dating the defendant and before she had his child that he had “responsibilities
    to this court” and that he had “promised this Judge that he would do certain things.”
    At the conclusion of the hearing, the trial court took the matter “under advisement” and gave
    the defendant two weeks “to find a 40 hour a week job and do everything he is supposed to do.”
    Two weeks later, on July 21, 2004, the defendant reported back to court, and the State advised the
    court that the defendant was not working, and Harrien advised that the defendant had moved again
    without notifying him and was still not in compliance with the sex offender registry. The trial court
    then revoked the defendant’s probation and reinstated the original sentence.
    ANALYSIS
    The defendant argues the trial court abused its discretion in revoking his probation based only
    on the “bare allegations made and testimony given by the Probation Officer with no other proof
    offered.” As a result, the trial court’s decision was not a “conscientious judgment based on a
    preponderance of the evidence.”
    A trial court is granted broad authority to revoke a suspended sentence and to reinstate the
    original sentence if it finds by the preponderance of the evidence that the defendant has violated the
    terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§ 40-35-310, -311
    (2003). The revocation of probation lies within the sound discretion of the trial court. State v.
    Harkins, 
    811 S.W.2d 79
    , 82 (Tenn. 1991); State v. Stubblefield, 
    953 S.W.2d 223
    , 226 (Tenn. Crim.
    App. 1997); State v. Mitchell, 
    810 S.W.2d 733
    , 735 (Tenn. Crim. App. 1991). To show an abuse
    of discretion in a probation revocation case, “a defendant must demonstrate ‘that the record contains
    no substantial evidence to support the conclusion of the trial judge that a violation of the conditions
    of probation has occurred.’” State v. Wall, 
    909 S.W.2d 8
    , 10 (Tenn. Crim. App. 1994) (quoting
    State v. Delp, 
    614 S.W.2d 395
    , 398 (Tenn. Crim. App. 1980)). The proof of a probation violation
    need not be established beyond a reasonable doubt, but it is sufficient if it allows the trial court to
    make a conscientious and intelligent judgment. Harkins, 811 S.W.2d at 82 (citing State v. Milton,
    
    673 S.W.2d 555
    , 557 (Tenn. Crim. App. 1984)). We review this issue, therefore, for an abuse of
    discretion.
    The defendant admitted that he “just quit” reporting to Harrien and that he had moved
    without notifying him. Additionally, he admitted to being discharged from two treatment programs
    for non-payment and non-attendance. He also admitted that he had missed approximately twenty-
    one treatment classes since being placed on probation. His explanation on direct examination as to
    why he had not complied with the requirements of the sex offender registry is lengthy but unclear:
    The registry, you cannot register without them sending you something. And
    if you do register, like if you do go to the probation officer and register, it still
    -5-
    doesn’t make any difference. I mean, it doesn’t. You’re still going to, I’ve registered
    through that whole time through the last violation at George [Harrien’s] office,
    sending once a week maybe, just to see if they could get me on there and correct it.
    They said that’s, that ain’t the way they do it. They have to mail you something
    every three months and if you don’t receive it, it’s not their fault. And there is no
    way of changing that.
    ....
    I could register, but it didn’t do any good. I mean he has sheets that, the same
    sheets they actually mail you. But if you give it to your probation officer and he puts
    it in the, you know, the mail, and you know he is standing beside you, it still doesn’t
    matter.
    We conclude that there was “substantial evidence to support the conclusion of the trial
    judge,” consisting not only of the testimony and the sworn affidavits of the probation officer, but the
    admissions and testimony of the defendant as well. Wall, 909 S.W.2d at 10. The defendant’s
    probation officer testified to several violations, at least three of which were admitted by the
    defendant. Thus, the evidence that the defendant had violated his probation was not just
    “substantial;” several violations were admitted. We note, also, that the defendant was given at least
    two “second chances” by the trial court, which showed an abundance of patience. Therefore, we
    conclude that the trial court did not abuse its discretion in revoking the defendant’s probation.
    CONCLUSION
    Based upon the foregoing authorities and reasoning, we affirm the trial court’s revocation of
    the defendant’s probation and reinstatement of his original sentence.
    ___________________________________
    ALAN E. GLENN, JUDGE
    -6-
    

Document Info

Docket Number: M2004-02119-CCA-R3-CD

Judges: Judge Alan E. Glenn

Filed Date: 6/1/2005

Precedential Status: Precedential

Modified Date: 10/30/2014