State of Tennessee v. Steven Thacker ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville December 13, 2011
STATE OF TENNESSEE v. STEVEN THACKER
Direct Appeal from the Circuit Court for Sequatchie County
No. 4894-G-PR J. Curtis Smith, Judge
No. M2011-01061-CCA-R3-CD - Filed March 28, 2012
Appellant, Steven Thacker, appeals the revocation of his probation, claiming that the trial
court abused its discretion by revoking his probation and ordering execution of the original
sentence. Finding no error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J. and
J OHN E VERETT W ILLIAMS, J., joined.
Vanessa King and B. Jeffery Harmon, Jasper, Tennessee, for the appellant, Steven Thacker.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant
District Attorney, for the appellee, State of Tennessee.
OPINION
As a result of plea negotiations, appellant pled guilty to theft of property more than
$10,000 on March 26, 2008 and received a split sentence of four years, with 28 days to be
served in confinement and the remainder on probation. Appellant’s probation officer filed
a probation violation report on May 30, 2008, alleging that appellant had violated the terms
of his probation by absconding; failing to report to his probation officer; failing to pay
supervision fees; failing to provide a DNA sample; and failing to perform court-ordered
community service work.
At the February 28, 2011 probation revocation hearing, the State offered information
based on Probation Officer Vanessa Raulston’s report. On March 26, 2008, the probation
officer instructed appellant to report for his initial consultation on April 2, 2008. After
failing to report as instructed on April 2, appellant called his probation officer and reported
the following day, April 3, 2008. Officer Raulston told him to report on May 6, 2008, and
to notify her of any change in residence. Appellant failed to report as scheduled on May 6,
2008. According to Officer Raulston’s report, she called appellant’s residence and spoke with
Mary Sharp, who had not seen appellant since April 3, 2008. Appellant was subsequently
arrested in Illinois.
In his testimony, appellant acknowledged that he failed to report in May. He
contended that the court should excuse some of his behavior because he suffered from
bipolar disorder. He stated that on the day he was to report to community service, he
awakened too late to keep the appointment. He testified that he feared his probation would
be revoked, causing him to flee to Chicago, Illinois, where he lived under a bridge. In
Illinois, authorities arrested appellant for theft of a bicycle/theft of mislaid property, a charge
that was later dismissed. He waived extradition in October, 2010, and authorities returned
him to Tennessee. Appellant stated that if he were released to finish his sentence on
probation, he would live with his father. The trial court set forth in its revocation order that
appellant failed to respond to his probation officer and ordered that appellant serve his
sentence in confinement.
In this appeal, appellant contends that the trial court abused its discretion by revoking
his probation and ordering execution of the sentence. After a thorough review of the record,
we affirm the trial court’s order of probation revocation and order of incarceration.
The revocation of a suspended sentence rests in the sound discretion of the trial judge.
State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995) (citing State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991)). In determining whether to revoke probation, it
is not necessary that the trial judge find that a violation of the terms of the probation has
occurred beyond a reasonable doubt. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If
the trial court finds by a preponderance of the evidence that the defendant has violated the
conditions of probation, the court is granted the authority to revoke the probation and
suspension of sentence. Tenn. Code Ann. § 40–35–311(e)(1)(2010). The appellate standard
of review of a probation revocation is abuse of discretion. See State v. Shaffer, 45 S.W.3d
553, 554 (Tenn. 2001); see also State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App.
2007). Generally, “[a] trial court abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment
of the proof, or applies reasoning that causes an injustice to the complaining party.” State v.
Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).
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Appellant argues that he should have been given written notice of the claimed
violation of probation. This court has long acknowledged that the granting of probation
confers upon the defendant an interest in liberty that is entitled to due process protection.
State v. Merriweather, 34 S.W.3d 881, 884 (Tenn. Crim. App. 2000); State v. Stubblefield,
953 S.W.2d 223, 225 (Tenn. Crim. App. 1997). The United States Supreme Court has
construed “due process protection” to include the right to written notice of the alleged
violations of probation; disclosure of evidence against him; an opportunity for a hearing,
including the right to be heard in person and to present testimonial and documentary
evidence; a neutral decision maker; and a written statement by the finder of fact as to the
evidence relied upon and the reasons for revoking probation. Black v. Romano, 471 U.S.
606, 611-12 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). Moreover, Tennessee’s
legislatively defined procedures for revocation of probation have been determined by this
court to comply with the federal constitutional standards outlined in Gagnon by the United
States Supreme Court. Merriweather, 34 S.W.3d at 884.
The record reflects that police executed the revocation warrant on December 2, 2010.
The warrant contained the facts upon which the probation officer relied in signing the
affidavit in support of the warrant. It indicated that appellant moved from his address of
record without notifying his probation officer and that he failed to report to his probation
appointments on two separate occasions, April 2 and May 6, 2008. Appellant had ample
notice of the probation revocation proceedings and the grounds alleged in support of the
revocation well in advance of the February, 2011 hearing. We conclude that the notice
required by due process was satisfied.
Appellant further asserts that he was entitled to a written statement by the trial court
setting forth the evidence upon which it relied and the reasons for which it revoked
probation. This issue has been raised and addressed by this court in a prior case. Pursuant
to State v. Liederman, 86 S.W.3d 584, 589 (Tenn. Crim. App. 2002), we again hold that
where the transcript indicates that the trial court made oral findings at the conclusion of the
probation revocation hearing regarding both the grounds for revocation and the reasons for
the court’s finding, the requirement of a “written statement” is satisfied. Here, at the
conclusion of the probation revocation hearing, the trial court made a brief statement on the
record regarding appellant’s failure to comply with the terms of probation and his failure to
cope with his bipolar disorder as the bases for revoking appellant’s probation. In this case,
insufficiencies in the trial court’s findings, if any, are rendered harmless in light of the
probation revocation order, the appellant’s admission of not reporting to his probation
officer, appellant’s garnering a new arrest, and the specifications of the charges. See State
v. Phillips, No. E2001-00987- CCA-R3-CD, 2002 WL 256736, at *5 (Tenn. Crim. App. Feb.
22, 2002) (finding harmless error when failure to report arrests as required, which was
charged and proven, would be sufficient to justify defendant’s probation revocation). We
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hold that any error involving a substantial right did not affect the judgment or result in
prejudice to the judicial process. Tenn. R. App. P. 36(b). Thus, no due process violation
occurred in this case.
Finally, appellant maintains that the trial court erred in failing to consider the
sentencing principles as required by Tennessee Code Annotated Section 40-35-210(b)(3).
Appellant’s argument is not applicable in the context of a probation revocation hearing. This
court has previously held that a defendant is not subject to resentencing under the sentencing
guidelines as a result of a probation violation. State v. Calvin Reeves, No. M2002-02976-
CCA-R3-CD, 2004 WL 1488570, at *2 (Tenn. Crim. App. July 2, 2004). We reasoned that
in a probation revocation hearing, the trial court lacks authority to impose a new sentence or
to increase the length of the original sentence. Reeves at *2 (citing State v. Taylor, 992
S.W.2d 941, 945 (Tenn. 1999)). Because the trial court’s authority is limited by the nature
of the proceedings, it follows that the trial court is not obligated to consider the sentencing
statute in a probation revocation hearing. The trial court did not err in this regard.
In this case, the record supports the trial court’s order of probation revocation based
on appellant’s failing to report and absconding. Appellant acknowledged that he failed to
report to his scheduled appointments and that he absconded to the Chicago area. The facts
established at the probation revocation hearing prove that appellant not only absconded, he
fled the area and remained outside the state for years.
Therefore, we conclude that the trial court did not abuse its discretion by revoking the
appellant’s probation and ordering that he serve his sentence in confinement.
Accordingly, the judgment of the trial court is affirmed.
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ROGER A. PAGE, JUDGE
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