State v. Michael Gerard Coppola ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
OCTOBER 1999 SESSION March 3, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * No. W1999-01975-CCA-R3-CD
Appellee * BENTON COUNTY
VS. * Hon. Julian P. Guinn, Judge
MICHAEL GERARD COPPOLA, * (Probation Revocation)
Appellant. *
For the Appellant For the Appellee
Vicki S. Snyder Paul G. Summers
Assistant Public Defender Attorney General and Reporter
117 North Forrest Avenue
Camden, TN 38320 R. Stephen Jobe
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
Robert “Gus” Radford
District Attorney General
Beth Boswell
Assistant District Attorney General
P.O. Box 503
Camden, TN 38320
OPINION FILED:
REVERSED AND REMANDED
NORMA MCGEE OGLE, JUDGE
OPINION
On April 28, 1997, the appellant, Michael Gerard Coppola, pled guilty in the
Benton County Circuit Court to an array of offenses. The plea agreement provided
for an effective six-year sentence with the Tennessee Department of Correction
(T.D.O.C.) and payment of $3,363.10 of restitution to various victims. In March
1998, appellant completed boot camp and T.D.O.C. released him to probation, the
terms of which required payment of the previously ordered restitution. The sole
issue on appeal is the trial court’s revocation of probation for failure to pay
restitution. Based upon our conclusion that no probation violation occurred, we
REVERSE and REMAND to the trial court.
I. Factual Background
On April 28, 1997, appellant pled guilty to nine offenses including aggravated
burglary, burglary, several thefts, fraudulent use of a credit card and contributing to
the delinquency of a minor. The plea agreement provided for an effective sentence
of six years in the T.D.O.C. and payment of court-ordered restitution in the following
amounts:
1. $ 909.06 to Farmer’s Insurance Company
2. $ 250.00 to Sam Dodd
3. $ 394.79 to Factory Jewelry
4. $1,327.85 to G.M. Card
5. $ 481.40 to Bobby Spoon
On March 18, 1998, upon appellant’s completion of boot camp, T.D.O.C.
placed him on probation pursuant to Tenn. Code Ann. § 40-20-206 and imposed
eleven conditions of release which included:
2. I will obey the laws of the United States, or any State in
which I may be, as well as any municipal ordinances.
...
10. I will pay restitution/fines as determined by the court.
On February 17, 1999, a probation violation report issued which alleged
violation of rules two and ten. An amendment to that report alleged further violation
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of rule two based upon a new charge of evading arrest in conjunction with law
enforcement’s attempt to serve the violation warrant.
On March 19, 1999, the trial court conducted a probation violation hearing
in which no sworn testimony was received. It properly declined to revoke probation
based upon arrests alone.1 See State v. Mark Crites, C.C.A. No.
01C01-9711-CR-00512, Sumner County (Tenn. Crim. App. filed February 9, 1999,
at Nashville). However, based upon the unsworn dialogue with appellant, the trial
court determined that appellant failed to pay the court-ordered restitution despite an
ability to do so. The appellant contended his probation had been transferred to
South Carolina, and the probation officer there refused to accept his proffered
restitution payments. The trial court revoked probation, stating:
“[W]hat I’m looking at is the man’s admission that he
could have made some payments but in fact he has
made absolutely no payments. Now, there’s the
problem that you’ve got. And that’s what the Court
finds to be sufficient grounds for revocation.”
II. Analysis
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; 40-20-206.
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).
1
The trial court’s probation revocation order indicates it also considered appellant’s
new arrests as a basis for revocation. However, where there are discrepancies between the
transcript and the written record, the transcript controls. See State v. Zyla, 628 S.W.2d 39,
42 (Tenn. Crim. App. 1981) (where transcript and court minutes conflict, transcript controls).
3
In order to revoke probation based upon an alleged failure to pay restitution,
the trial court must find on the record that (1) the failure to pay was willful; and (2)
alternatives to imprisonment are inadequate to meet the State’s interests in
punishment, deterrence and insuring victims’ restitution. State v. Dye, 715 S.W.2d
36, 41 (Tenn. 1986). Where the trial court fails to make these findings,
“fundamental fairness requires that [appellant] remain on probation.” Bearden v.
Georgia, 461 U.S. 660, 674, 103 S. Ct. 2064, 2074, 76 L. Ed. 2d 221, 234 (1983).
With regard to the restitution due in this case, the T.D.O.C. certificate
establishing the terms of appellant’s probation reads, “I will pay restitution/fines as
determined by the court.” The trial court sentenced appellant on April 28, 1997, to
six years in the T.D.O.C., and understandably did not establish a specific payment
schedule. Appellant then served part of his sentence in a special alternative
incarceration unit (boot camp) from which he was released to probation on March
18, 1998, for the balance of his sentence. See Tenn. Code Ann. § 40-20-206.
Nevertheless, without an established time frame for payment of restitution, we
conclude that appellant was not in violation of probation at the time of the revocation
hearing. See State v. Sherry Jenno, C.C.A. No. 01C01-9811-CC-00437, Marion
County (Tenn. Crim. App. filed June 2, 1999, at Nashville).
Furthermore, it is clear from the probation revocation hearing transcript that
the trial court failed to follow the dictates of Dye in deciding to revoke appellant’s
probation for failure to pay restitution. Although the trial court implied that
appellant’s failure to pay was willful, the court failed to specifically find that
alternatives to imprisonment were inadequate to meet the state’s interests in
punishment, deterrence and insuring victims’ restitution. Dye, 715 S.W.2d at 41.
We conclude, under the facts of this case, appellant’s failure to pay
restitution was not a proper basis for revocation of his probation. However, it would
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appear the appellant, victims or district attorney may now petition the trial court to
set a schedule of payments. See Tenn. Code Ann. § 40-35-304(f).
III. Conclusion
Based upon the foregoing, we reverse the revocation and remand to the trial
court to reinstate probation2 and conduct such other proceedings as may be
appropriate.3
___________________________
Norma McGee Ogle, Judge
CONCUR:
____________________________
John H. Peay, Judge
____________________________
Alan E. Glenn, Judge
2
Upon remand, the trial court may wish to consider whether any of the orders of
restitution are improper under State v. Alford, 970 S.W.2d 944 (Tenn. 1998).
3
As previously noted, the trial court acted properly when it declined to revoke
probation based solely upon new arrests where the state presented no proof regarding the
pending charges. We acknowledge the possibility that those charges may serve as legitimate
bases for revocation provided the state presents testimony as to the underlying facts, or there
were subsequent convictions entered on the charges.
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