State v. Ricio Conner ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST 1999 SESSION FILED
October 31, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 02C01-9807-CR-00201
)
vs. ) Shelby County
)
RICIO L. CONNER, ) Hon. James Beasley, Jr., Judge
)
Appellant. ) (Probation Revocation)
)
FOR THE APPELLANT: FOR THE APPELLEE:
JEFFREY S. ROSENBLUM PAUL G. SUMMERS
Attorney at Law Attorney General & Reporter
Rosenblum & Reisman, PC
80 Monroe Avenue, Suite 560 PATRICIA C. KUSSMANN
Memphis, TN 38103 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
SCOTT GORDON
Asst. District Attorney General
Criminal Justice Complex, Ste. 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED: _____________
AFFIRMED IN PART; VACATED IN PART; REMANDED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Ricio Conner,1 appeals the Shelby County Criminal
Court’s order revoking his probation. He asserts that (1) the trial court erroneously
applied the wrong standard of proof in the revocation proceeding, (2) the trial court
erred in concluding that it had no authority to do anything but reincarcerate the
defendant once a violation of probation was established, and (3) as an alternative
argument, the trial court lacked jurisdiction to determine whether a violation of
probation occurred.2 We affirm in part and vacate in part the trial court’s ruling.
On January 11, 1995, the defendant pleaded guilty to possession of
more than one-half gram of cocaine with intent to deliver. The trial court imposed
an eight year sentence in the Tennessee Department of Correction (“TDOC”) to run
concurrently with an effective sentence previously imposed in two other cases of an
unspecified nature. TDOC placed the defendant in the “boot camp” program and
released him on probation after nine months’ incarceration.
While on probation, the defendant, by his own admission, was
arrested three or four times. The record on appeal shows the following arrests and
dispositions as of the date of the revocation hearing:
(1) June 5, 1996, possession of marijuana, guilty plea and conviction;
(2) June 5, 1996, driving on a revoked license, guilty plea and
conviction;
(3) June 12, 1997 (Mississippi), simple assault, pending;
(4) June 19, 1997, driving on revoked license, second offense, bound
over to grand jury;
(5) June 19, 1997, theft of property over $1,000 in value, two counts,
1
The defendant’s name is spelled Ricio Conner in the indictment but is
spelled Rico Conner in other court documents. In keeping with this court’s
practice, we use the spelling as it appears in the indictment.
2
We have consolidated the defendant’s first two appellate issues into one
and have reordered the treatment of the three aggregate issues.
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bound over to grand jury;
(6) August 8, 1997, reckless endangerment, evading arrest,
possession of Schedule VI controlled substance, and driving on revoked
license, third offense, bound over to grand jury.
The defendant’s probation officer testified that the defendant violated his probation
by being charged with new offenses while on probation, failing to report the new
charges except for the 1996 marijuana charge, leaving the state without permission
by going to Mississippi in 1997, using marijuana, and failing to pay his probation and
supervision fees.
The trial court found that the defendant violated the terms of his
probation and ordered him to be incarcerated in the TDOC. In its revocation order,
the trial court said:
[T]here are several mitigating circumstances . . . . Had the Court
placed Mr. Conner on probation, the Court would certainly consider
placing Mr. Conner back on probation with some stricter conditions or
putting him into a community corrections program or some other
alternative sentence. However, the Court notes that it did not place
Mr. Conner on probation but instead that Mr. Conner was placed on
probation by the Tennessee Department of Correction[]. The Court
hereby finds that under such circumstances it does not have any
discretion with regard to how to punish Mr. Conner for violating
his probation. The Court finds that it can only determine that Mr.
Conner has violated probation and place him back into the Tennessee
Department of Correction[].
In his oral findings, the trial judge expressed dismay concerning the TDOC’s release
of the defendant on probation after serving nine months in the “boot camp” program
and perplexity about the legal status of the revocation proceeding. After reciting the
defendant’s history of reoffending and failing to appear since the inception of his
cases in the trial court, the judge granted the revocation petition and said, “I really
don’t know that I have authority to modify, place him under Community Corrections,
or something else. I don’t believe I have that authority. If I do, let [the Court of
Criminal Appeals] tell me and I’ll be glad to review it and revisit it.”
In his first issue, the defendant complains that the trial court erred in
applying a “probable cause” standard of proof in the revocation proceeding. We
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agree with the defendant that the proper standard in this case was preponderance
of the evidence. See Tenn. Code Ann. § 40-35-311(e) (1998).
We conclude, therefore, that the trial court misspoke when it referred
to a “probable cause” standard of proof; however, this error was harmless. The
revocation of probation is committed to the sound discretion of the trial judge. State
v. Harkins, 811 S.W.2d 79, 80 (Tenn. Crim. App. 1991). In order for an abuse of
discretion to occur, the reviewing court must find that the record contains no
substantial evidence sufficient to support the trial court’s conclusion that the
violation of the terms of probation has occurred. Id. at 82; State v. Delp, 814
S.W.2d 395, 398 (Tenn. Crim. App. 1980). In view of the preponderance of the
evidence standard of proof and the abuse of discretion standard of review on the
question of whether a violation of probation occurred, see State v. Aaron Switzer,
No. 03C01-9211-CR-00380, slip op. at 3 (Tenn. Crim. App., Knoxville, July 23,
1993), the record contains overwhelming evidence that the defendant violated the
terms of his probation in numerous ways. The trial court’s misstatement in referring
to a probable cause standard of proof is clearly harmless. See Tenn. R. Crim. P.
52(a).
In his second issue, the defendant essentially argues that the trial
court was willing to consider some alternative to incarceration, but it erroneously
concluded that it had no discretion or authority to do anything except order
confinement once a violation of probation had been adjudicated.
Pursuant to Tennessee Code Annotated sections 40-20-201, -206,
and -207, the TDOC placed the defendant in “a special alternative incarceration
unit,” commonly referred to as a “boot camp” program, and released him after nine
months under “supervision” of the division of community services. Code section 40-
20-206 provides that if, after being placed into community “supervision,” a
defendant fails to comply with “the terms and conditions of supervision, . . . the
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release on supervision may be revoked by the Trial Judge pursuant to § 40-35-311.”
Tenn. Code Ann. § 40-20-206 (1997). Code section 40-35-311 prescribes the
procedure for a trial court revoking probation. In the present case, the state
concedes that this statutory scheme empowered the trial court to determine the
revocation issues and upon a finding of a violation of “probation,” to draw from the
full range of remedies available in a violation of probation case, including a
modification of the conditions of supervision and an extension of probation for up
to two years. See Tenn. Code Ann. § 40-35-308 (1997).
We agree. Although the trial court lost jurisdiction when the
defendant was placed in TDOC, Code section 40-20-206 reinvested the trial court
with jurisdiction once TDOC effectively placed the defendant “on probation.” See
State v. Bowling, 958 S.W.2d 362, 363 (Tenn. Crim. App. 1997). Upon determining
that the defendant violated the terms of his probation, the trial court had the
authority to modify the terms of supervision, extend the probationary period for up
to two years, or order the original sentence to be served in confinement. The trial
court was neither empowered to place the defendant on community corrections nor
to increase the defendant’s original sentence; however, it could have ordered the
defendant’s “participation in the community correction program as a condition of his
continuing on probation.” Id. at 364 (italics in original).
In consideration of the foregoing, we conclude that the trial court erred
when it determined that it lacked authority to apply any remedy except incarceration.
We must now determine the effect of the trial court’s misapprehension
of its authority. Initially, we point out that the confusion related to the remedy to be
applied once a violation of probation had been adjudicated and does not in any way
impugn the finding of a violation.
With respect to remedy, the trial court’s verbal statements as they
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appear in the transcript of the revocation hearing are contrary to the written
statements that appear in the order. In both communications, the trial court
expresses perplexity about its role in the case and its authority to apply any remedy
except confinement. However, in the verbal findings, the court expresses disdain
for the defendant’s rather oblique style of testifying. Somewhat spiritedly, it
recounts the defendant’s transgressions committed while on probation, and it
makes no mention of mitigating factors which would support a continuation of
probation in some form. These verbal statements are at odds with the statements
in the order that “several mitigating circumstances” exist and that, “[h]ad the Court
placed Mr. Conner on probation, the Court would certainly consider placing Mr.
Conner back on probation with some stricter conditions.”
We are mindful of the rule which this court routinely applies that in the
case of a conflict between the provisions of a judgment and the provisions of the
transcript, the latter controls. See, e.g., State v. Davis, 706 S.W.2d 96, 96 (Tenn.
Crim. App. 1985). However, we do not view the order and the transcript in the
present case to be in conflict so much as they reflect a disharmony in tone. The
tone of the transcript suggests that the trial judge would not have awarded the
defendant further probation, and the tone of the order suggests that the court would
have considered probation had it perceived the opportunity. We do not find that this
is a conflict in the operative provisions of these communications which would
require our selection of the transcript as the basis for the prevailing meaning.
We find that the sense of both the transcript and the order is that the
trial court clearly adjudicated a violation of the terms of probation but never reached
the point of adjudicating the remedy. The trial judge stated on the record that he
granted the petition to revoke because the probation conditions were imposed by
the TDOC. He then stated, “And I don’t know that I have the authority to do
anything other than that . . . . I don’t believe I have that authority.” The order states
that the trial court “can only determine that Mr. Conner has violated probation and
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place him back into the [TDOC].” These comments indicate that the trial court
never adjudicated the possible remedies. Given these circumstances, it is
appropriate to remand the case to the trial court so that court may determine the
violation of probation remedy. It is apparent from our review of the record that a full
revocation hearing was conducted. Thus, the trial court may well decide that it can
make the required determinations without further hearing, but we leave that choice
to the trial court.
This adjudication preempts the defendant’s third issue. The defendant
argues in the alternative to his position in the second issue that if the trial court
lacked the authority to revoke probation, by the same token it lacked jurisdiction to
issue the revocation warrant. As we have said above, Code section 40-20-206 gave
the trial court the jurisdiction to initiate and conduct revocation of probation
proceedings in the context of this case.
We affirm the trial court’s determination that the defendant violated the
terms of his probation. We vacate the order of confinement in the TDOC and
remand the case to the trial court for determination and imposition of the violation
of probation remedy.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
______________________________
DAVID H. WELLES, JUDGE
______________________________
JERRY L. SMITH, JUDGE
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