### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A ugust 6, 2002
STATE OF TENN ESSEE v. OPAL GA USE
Direct Appeal from the Circuit Court for Haywood County Nos. 4504 and 4560 Clayburn L. Peeples, Judge

No. W2002-01225-CCA-R3-CD - Filed Nove mber 14, 2002

Defend ant, Opal Gause, entered a guilty plea to two counts of aggrava ted assau lt . The trial court sentenced Defendant to two consecutive three-y ear terms, for an effective

sentence of six year s. The sentences were su spended , and Def endant w as place d on proba tio n for the length of his original sentenc es. A violation warrant was subsequently issued alleging Defendant had f ailed to meet the conditions of his probation. Follo wing a hearing, Defendant’s proba tion was revoked, and he was ordered to serve his original sentence with credit for time served pre-trial. Defendant now cha llenges the revocation of his probation. Following a review of the record, we affirm the decision of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

. T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OSEPH M. T IPTON , and J OHN E VERE TT W IL LI AMS , JJ., joined.
Tom W. Crider, District Public Defende r; and Joyce Diane B lount, Assistant Public Defender, Tenton, Tennessee, for the appellant, Opal Ga use. Paul G. Summers, Attorney Gene ral and Reporter; John H. Bledsoe, As sistant Att orney Genera l; Garry G. Brow n, District Attorne y General ; and Larry Hard ister, As sistant Dis trict Atto rney Genera l, for the appellee, State of Tennessee.
OPINION I. Background
Three days afte

r Defendant was placed on probation on March 1, 2001, he was arrested for public into xication and sentenced to serve ten day s. On March 16, 2001, Defendant was arre sted again for harassment, but

the charges were subseque ntly dismissed. I

n July, Defendant’s probation officer filed a prob a tion violation report alleging that Defendant wa s three months in arrears on-2-

payment of his supervisory fees. Two month s later, D efenda nt was ar rested f or assault, but thes e charges were also dismissed.
In September, Defendant’s probation officer received a call from Defe nd ant’s sister concerning threats he had made to his mother, Hattie Gause. As a re sult, a board discipl inary meeting was held with Defendant on September 19. At this time, Defendant was instructed to move from his mother's house, and enroll in counseling at Pathwa

ys f or menta l health a nd substance abuse treatme nt. Defend ant was a

lso order ed to abstain from

any further drug or alcohol u se, and r

efrain from driv ing witho ut a licen se. I

n addition , he was t

old to cat ch up on pa

yme nt of his fees.
On October

10, 2001, D efenda

nt was ag ain arr

ested, th is time for

simple ass ault and p

ublic intoxication, found guilty

and sente nced to eleven months, twenty-nine days, all suspended but

thirty day s. A second arrest for public intoxication occurred on October 13, 2001, resulting in another conviction and a thirty day sentence.
A secondprobation violation report was filed on November 9, 2001 alleging that Defendant had failed to (1) obey the laws, ( 2) follow his parole officer's rules of supe rvision, (3) abstain from excessive use of

intoxicants, and (4) pay supervisory fees, all in direct

violation o f the ter

ms of his probation. Based on Defendant’s actions since his probation commenced, probationrevocation was recommended.
At the revocation hearing, Defe ndant’s probation officer testified that Defendant had not complied with any

of the conditions of his probation other than checking in as required a nd reporting his arrests. Between the time Defe ndant was placed on prob ation and th e filing of the second probatio n violation

report, he had been arre sted five times, and

convicte d on three

of the ch arges
. Mr. Hughes, Defendant’s counselor a t Pathways, testified

that he had known Defendant for approxima

tely fifteen years. During that time, Defendant periodically attended counseling sessions for a few weeks, then disappeared f or extended periods of times, often for years. After a me eting withDefendant

on October 1, Mr. Hughes thought D efenda nt had a g ood chance at suc ceeding in the treatment program, and that he would benef it from Pathways'

intensive outpatient

cou nseling progra m. Mr. Hughes testified, however, that Defendant missed his next scheduled meeting because he was in jail.
Hattie Gause, D efenda

nt’s mothe

r, testif ie d that her son h ad neve

r assaul ted her, and he c ould come live with her if his probation were not revoked.
Defendant

testifie d that he i nadvertently pa id his supervisory fee s to the General Sessions Court instead of the Circuit Cou rt, and di d not disco ver his mis take unti l the di scipl inary meet ing. Defendant

also denied that he had an alcohol p roblem. He claimed that his problems resulted instead from his bouts with d epression a nd his temper. Defendant testified that he visited the Lighthouse

Ministries in Memphis, Tennessee, to see what treatment progra ms were offere d. However, the patients at the facility a ppeared to be mostly dr

ug addicts and al cohol ics an d he "di dn't-3-

want to be around that." Defendant testified that he next tried to enroll in the reha bilitation program at Buffalo Valley , but the center would not take him because he was on medication for depre ssion. Fi na ll y, Defend ant state d that he r eturned to his form

er Pathw ay s counsel or, Calvin Hughes

. Defendant

said he attended one meeting in October, but missed t he next sch

eduled vi sit

because he was in jail at the time. Defendant testified that he would attend Pathway s' outpa tient counseling program in the future if his probation was not revoked.
Defendant

admitted that he hadbeen co nvicted t hree time s since the commencement o f his probation, but alleged at the hearing that the a rrests either had no grounds or onlyinsubstantial ground s. He did

admit he ha d been drinking on one of the public intoxication charges, but maintained that he hadnot been d rinking when the other ar rest occ urred. D efenda

nt also testified that the police misunderstood the events leading up to his assault conviction. However, he did not appeal a ny o f his convictions.
At the conclusion of the testimony, the trial court revoked Defendant’s probation and orde red Defendant

to serve his two consecutive sentences in the Tennessee Departm ent of Cor rection with credit f or time al ready spent in the county

jail.
On appeal, Defendant

claims that the trial court abused it s discre

tion and vi olated hi s rights of due process when the trial court (1) revoked Defendant’s proba tion without considering al ternatives other than incarceration, (2) failed to state the reasons upon which it based it s determination to revoke Defendant’s pr obation, a nd (3) fa iled to allow Defendant’s counsel to make a stat ement on hi s beha lf bef ore th e tria l cour t iss ued it s ruli ng.
II. Du e Proces s Clai ms Defendant

alleges that the trial court abused its discretion and violated De fendant’s due processrights w

hen the c ourt fail ed to make specific finding s as to the

basis f or the revocation of probation, and failed to allow Defendant’s counsel to make a statement on behalf of the Defendant before ruling on this matter.
A defendant who has been granted a suspended se ntence and probation

has a libe rty interest , altho ugh conditional, that is protected by due process of law. State v. M erriweath er, 34 S.W.3d 881, 884 (Tenn. Cr

im. App. 20 00); State v. Stubblefield, 953 S.W.2d 22 3, 225 (Te nn. Crim. App. 1997); Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974) cert. denied (Tenn. 1975). Therefore, the termination of the defendant’s probation req uires some form of orderly procedure. Id. at 482 citing Morrissey v. Brewer , 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972 ). While notafforded the full array of procedural protections attached to a cr iminal proceeding, a defenda nt facing revoca tion of pr obation is entitled t

o the follo wing minimum due pr ocess requireme

nts: (a) written notice of the claimed violations of [probation or] parole; (b) disclosur

e to the [pr

obatione r or] paro lee of evidence

agains t him;-4-

(c) opportuni

ty to be heard in person

and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesse s (unless the hearing officer specifically

finds good cause for not allowing conf rontation); (e) a ‘neutral and

d etached’ hearing body

such as a traditional parole board, members of which need not be judicial officers or la wyers; and (f) a written statement by the fa ctfinders as to the evidence relied on and reasons for revoking [probation or] parole. Gagnon v. Scarp elli , 411 U.S. 7 78, 7 86, 93 S.Ct.1756, 1761-1762, 36 L.Ed.2d 656 (1973) citing Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604.
The hearing process envisioned in Gagnon provides the defendant with notice as to th e violatio ns alleged and the opportunity to present evidence and witnesses on disputed facts and insures that contested issues are resolved. Morrissey , 408 U.S. at 484, 92 S.Ct. at 260 2. The pr ocess also assure s the defendant that the trial court has before it suffic ient facts upon which to m ake a conscientious and informed decision. State v. H arkins, 811 S.W.2d 79, 82 (Tenn. 1991).
Our state legislature has vested the trial judge with the sole authority to revoke a defendant’s probation whenever the trialjudge learns that a defendant has e ither (1) been guilty

of the breach of any law or (2) violated the conditions of his probation. Tenn. Code Ann. § 40-35-311(a). Following a defenda nt’s arr est for a violatio n of prob ation, the trial judge must inquire as to the charges a nd determine if a violation has occurre d. Tenn. Code Ann. § 40-35-311(b). The defendant must be p resent at the inq

uiry , is entitle d to repr

esentat ion by counsel, and may

present testim ony on hi s behalf. Id. If the trial judge de termines that a violation has occurred by the prepo nde rance of the evidence, he m ay

revoke t h e defendant’s probation and suspension of sentence a nd order the defendant to serve the judgment as originally entered. Tenn. Code Ann. § 40-35-311(c). The defendant has the right to appeal any revocation of probation. Id.
This Court has determined that the statutory pr ocedures for the revocation of probation set forth in Tenn. Code Ann. § 40-35-311 comply with the minimum due process standa rds required for revocation hearings under Gagnon

. See Practy, 525 S.W.2d a t 682; Merriwea th er , 34 S.W.3d at 884. As part of this procedural framework, the tria l court must issue a statem ent setting forth the evidence and factors relied upon in making the determination to revoke probation. State v. Delp, 614 S.W.2d 395, 397 (Tenn. Crim. App. 1980) perm. to appeal denied (Tenn. 1981). Although the trial court’s findings may

be written or oral, a statement in some form must be made. Id.
At the conclusion of Defenda nt’s revoc ation hearing in this matter, the following dialog occurred:
MS. B LO UNT [d

efen se counse l]: That’s all the proof we’re g oi ng to present ,

Your Honor.-5-

THE COURT: Any rebutta l, Gener al?
GENERAL

HARDI STER: No, Your Honor.
THE COURT Any comments?
GENERAL

HARDI STER: We’ll submit the matter without a statemen t, You r

Honor.
THE COURT: Mr. Gause, your probation in each case is revoked.
The trial court’s order stated that Defendant’s suspended sentence wa s revoked “for failure to abide by

their [the State of Tennessee Department of Correction, Division of Probation] rules and regulations.” Clearly, the transc ript of the hearing and

the trial court’s order revoking the suspended sentence gave Defendant

only scant notice of the

evidence and

factor s reli ed upo n by the tr ial j udge in reaching his determination that revocation was pr oper. Delp, 614 S.W.2d at 397

. The trial court ’s wri tten o r oral findi ngs are an integral and indispensable pa rt of the hearing processwhen the revocation involves disputed facts and contested issues. See Id. However, Defendant’s revocation was based, at least in part, on convictions by a court of competent jurisdiction. Although Defendant disputes some of the factors surrounding his arrests, he admits that he was charged and convicte d for offenses committed while he was on probation. A revocation of probation can be based on only one violation, and, in this case, Defendant has admitted to at leas t three vi olations.
The tr ial judge has broad discretion in formulating the c onditions of the defen dant’ s probation, so that the punishment meet s both the interests of society a nd the interests of the defenda nt. Tenn. Cod

e Ann. § 40 -35-303( 9)(d); State v. B urdin , 924 S.W.2d 82, 85 (Tenn. 1996); Practy , 525 S.W.2d at 681. Therefore, these co nditions mus t be clea rly relay ed to the d

efenda nt in order that he may have

reasonable noticeof the prohibited conduct and the opportunity to conform his actions to the restrictions placed against his liberty

. Stubblefield, 953 S. W. 2d at 225 , citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed.2d 989 (1954). However, revoking a defendant’s probation based on the commission of criminal offenses does not implicate the same due process requirements since the de fen dant , as a mat

ter of la w, “is deemed to have notice that his or her conduct must conform to the requirem ents of the law” the moment he or she is placed on probation. Stubblefield, 953 S.W.2d a t 225; State v. Stone , 88 0 S.W.2d 746, 749 (Tenn. Crim. App. 1994). The commission of a cri me alone justifies the issuance of a warrant for Defendant’ s arrest for violation of probation. Tenn. Code An n.§ 40-35 -311(a). When a defendant plea

ds guilty and is convicted of a crime while on probation, there are no disputed facts or contested issues that warrant due process protec tion. S tone , 880 S.W.2d at 749. See M orrissey, 408 U.S. at 490, 92 S.Ct. at 2605 (“If it is determined that petitioners admitted parol e [probation] violations to the Parole Board, as responde nts contend, and if those violations are found-6-

to be reas onable g

rounds fo r revoking par

ole [probation ] under sta

te standards, that would end the matter.”) Further, the recor d of a conviction does not depend on an evaluation of the credibility of witnesses which is be st left to th e trial c ourt. State v. M

itchell , 810 S.W.2d 7 33, 735 (T enn. Crim. App. 1991).
Defendant’s convictions constitute a n ind ependent basis for revocation of probation. See Tenn. Code Ann. § 40-3 5-311 (a); State v. Robinson, 2000 WL 546209 (Tenn. Crim. App. 2000). Therefore, it is unnec essary to addressthe issue s surrounding the other alleged p

robation violations

. The only question t

hat rema ins is whet

her the t rial c ourt abused its discretion when it revoked Defendant’s probation on the basis of his con

victions. This cour

t has previously

determined that a crime committed during probation constitutes substantial evidence that a violation of probation has occurred. State v. Gabel , 914 S.W.2d 562, 564 (Tenn. Cr im. App. 19 95); see Stone , 880 S.W.2d at 749 (Revocation was warranted even whe n the offenses were committed prior to the commencement of the defe ndant’s p robation ary

period) ; Delp, 614 S.W.2d at 398 (Revocation may be prope r even when the defe

ndant is later acquitted

of the cr ime). The

refore , we conc lude that

the trial court did notabuse its discreti on in revo king Defendant ’s proba

tio n. St ubblefie ld , 953 S.W.2d a t 226; see Harkins, 811 S .W. 2d at 82. We note, however, if the revocation in this matter did not include a charge that Defendant

had breached the laws of this state, we might be c ompelled to reach a different result.
Defendant

also alleges tha

t the tria l court vio lated his d

ue proce ss right s when his counsel was not pe rmitted tomake a st atement o n his beha

lf befor e the tria l court iss ued its ruling. As a result, Defendant argues that he wa s denied the opportunity to ask for intensive probation as an alternative to incarceration.
The record

does not clearly

indicate that Defendant’s counsel was prohibited from making a statem ent, especially sinc e counsel did not notify the trial cour t of any desire

to argue. Th e transcript merely shows that the tria l judge asked for statements, the state replied neg atively, and Defendant’s counsel was silent.
A revocation hearing is not a criminal proceeding but rather a n informal hearing which does notinclude “the full panoply of rights and procedural

safeguards.” State v. Wade, 863 S.W.2d 406, 407-408, (Tenn. 1993) ; State v. Milton , 673 S.W.2d 5 55, 557 (T enn. Crim. App. 1984 ); Barker v. State, 483 S.W.2d 586, 589 (Tenn. Crim. App. 1972), cert. denied (Tenn.1 972); Morrissey , 408 U.S. at 480, 92 S.Ct. at 2600. The procedure under which revocation hearings are c onducted is governed by statute, and, as noted a bove, the statutory

framew ork fully

protect s the def

endant’ s due proc ess rights. Tenn. Code Ann. § 40-35-311; Practy, 525 S.W.2d at 682. Durin g the rev ocati on hea ring, the defendant has the right to be present, the right to counsel, and theright to present testimony on his behalf. In this matter, Mr. Hughes, Defendant’s counselor at Pathways, testified that he be lieved Defendant

would benefit from an inten sive outpatient alcohol abuse treatment program. De fendant’s counsel then askedDefend ant if he wou ld be w illi ng to go into this program if he were given a nother chance at probation, and Defendant answered a ffirmatively. De

fendant, therefore, ha

d sufficient opportuni ty during t he hear ing proc ess to pre sent evid ence tha t he would

be a suita ble cand idate for-7-

alternative sentencing should the trial court revoke his probation. Defendant is not entitled to relief on this issue. III. Impo sition of Sent

encing
Defendant

allege s that the t

rial cou rt violate d his due pr

ocess rights when it ordered that the balance of his sentence be served in the Tennessee Department of Correction without considering whether Defendant

was a suitable candidate for intensive probation. Defendant argued in the tria l court that his participation in Pathway’s outpatient substanc e abuse t

reatmen t progr am would r

esult in his succe ssful reh abilitatio n. Mr. Hug hes also t

estified that he f

elt Defe ndant wa s at last committed to seeking help for his problem, and that a successful completion of the program would provide Defendant with the chance to rema in sober.
Once a defendant’s probation has been rev oked, the trial judge is granted broa d discretion in determining the defendant’s sentence

. See Tenn. Code Ann. §§ 40-35-311(e), 40-35-310, and 40- 35-308(c). The trial court may orde r the defendant’s incarceration, cause execution of the original judgmen t, or mo di fy t he defendant’s probationary period, including extending the defendant’s probation for no more than two y ears. Id. ; State v. Hunter , 1 S.W.3d 643 (Tenn. 1999).
Defendant

initia lly pled g uilty to two counts of agg ravated assault. In the nine months Defendant

was on probation, he was arrested two times for assault, once for harassment and twice for public intoxication. Th e ha rassmen t charg e and one

of the as sault cha

rges w ere subs equently dismissed. Defendant pled guilty to the other charges, and serve d the sentences imposed b y th e court. Both Defendant’s probation officer a nd his counselor at Pathw ays testified that Defe ndant had a problem w ith alcoh ol, and tha t alcohol was ge nerally the root o f his crim

inal offe nses. Defend ant, however, denied that he had an alcohol problem, admitting only that he “might drink a little bit too much.” Defendant made one effort to inquire about the treatment program at Lig hthouse Ministries, buthe decided not

to stay since the patients looked like dr ug and alcohol addicts, and he did not feel he wa s i n t he sa me ca te go ry. Defendant’s counselor testified that he had counse led Defendant for approximately fifteen ye ars. During that time, Defendant would come in for a f ew weeks, then disappear, sometimes for ye ars. The coun selor sta ted that it was his understanding that Defendant primarily came in for counseling when he w as under pressur e to do so by

some cour

t. The counse lor sa w Defendant in October and testified that he saw signs of a sincere de sire for rehabilitation in D efenda

nt. Defe ndant, however, missed the next scheduled meeting because he was in jail for public intoxication.
Based on a review of the record, it is appare nt that Defendant has made little effort t o assist in his rehab ilitation. During his probation, Defendant continued to commit the same ty pes of offenses that led to his initial convictions. He made some minimal effort to seek counseling during his probation, but over the past fifteen y ears has shown little

progre ss in dealing with

his proble

ms. In fact, De

fendant denied he even ha d a proble m with alcohol a buse desp ite his counselor’s guidance and recommendations. The repeated unsucce ssful efforts towards rehabilitation indicat e th at-8-

Defendant

has little potential for success during another probationary pe

riod. Defendant urged

the court not to interrupt his efforts at rehabilitation, y et the only indication that Defe ndant received counseling during his probation was one meeting in October with Mr. Hughes. Mr. Hughes testified he was optimi stic afte

r this sessi on, bu t, du ring th e two w eeks fo llow ing th e meet ing, Defendant was arrested once for simple assault and public intoxication and on ce for public intoxication. Defendant’s actions g

ive little a ssuranc e that a

n intensi ve proba

tion will me et with an

y mo re succ ess. Given these facts, we cannot say that the trial court abused its discretion in ordering Defendant

to serve his sentenc e in the Tennessee Department of Correction. De fendant is not entitled to relief on this issue.
CONCLUSION For the foregoing r

easons, the judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE