# FILED
October 31, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9901-CC-00018 Appellee, ) ) MADISON COUNTY VS. ) ) HON. FRANKLIN MURCHISON, PHILLIP DAVID HOWELL, ) JUDGE ) Appellant. ) (Revocation of Judicial Diversion)

FOR THE APPELLANT : MIKE MOSIER 204 West Baltimore P.O. Box 1623 Jackson, TN 38302-1623 (On Appeal) STE VE B EAL 22 Monroe Avenue Lexington, TN 38351-2135 (At Hearing) FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter R. STEPHEN JOBE Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JAMES G. (JERRY) WOODALL District Attorney General LAWRENCE E. (NICK) NICOLA Assistant

District Attorney

General 225 Marti n Luther King Drive P.O. Box 2825 Jackson, TN 38302-2825

OPINION FI LED:

REVERSED AND

REMANDED

JOE G. RILEY, JUDGE2 OPINION

Pu rsuantto a negotiated agreement, defendant pled guilty to agg ravated criminal trespass and assault, Class A misdemeanors, and the trial court placed him
on judicial diversi on pursuan t to Tenn . Code Ann . § 40-35- 313. Sub sequentl y, the trial court found defendant in violation of his probation, revoked j udicial diversion, and imposed sentence. In this dir ect appeal, defendant

challenges

the revocation. After a careful review

of the record, we REVERSE the decision of the trial cour t and REMAND

for further proceedings.

I. FACTS

The victim of the underlyi ng offenses (aggravated criminal trespass and assault) was the wife of the defendant. At the time of the plea, divorce proceedings were pending in the

Chancery Court. In Se ptember 1997, defendant entered into
a negotiated plea agreement w hich provided for

his placement on judicial diversion pursuantto Tenn. Code Ann. § 40-35-313. The div ersion plan included the following special condition of probation : “abide by all prese nt and future orders of this Court and of the Chancery Court of this district. ”

The agreement was signed by the assistant district attorney, defense counsel, and defendant. At the time of this plea’s entry, defendant was under a ChanceryCourt order which r equired payment

of $1,000 per month in pendente lite alimony to his wife. It is undi sputed that these payments wer e not made. Defendant contends there is no proof th at his failure to pay was willful.

The trial court determined that defendant’s failure to pay alimony operated
as a violation of the Chancery Court’s o rder, which in turn vio lated his terms of probation (“abide by all . . .or ders . . . of the Chancery Court.” ) Hence, the trial1 The trial court conducted two revocation hearings in this matter, May 1998 a nd August 1998. The trial court also conducted two sentencing hearings, September 1998 and December 1998. 3 court revoked judicial di version and eventually sentenced hi m for each conviction. 1

II. CONDITION OF PROBATION

Defendant challenges the reasonablenes s of the condition of probation requiringhim to abide by orders of the Chancery Court. The st ate maint ains that defendant waived this complai nt since theterms of his diversion w ere the result of a negotiated plea agreement.

A trial court placing an offender on probation has the authority to impose special conditionsupon that probation. Tenn. Code Ann. § 40- 35-303(d). Special conditionsmay include a requir ement that the o ffender meet his or her family obligations. Tenn. Code Ann. § 40-35-303(d)(1).

Since the record in this case does not contain a transcript of the guilty

plea, we must assume that the state is corr ect in itsargument that defendant agreed to the challenged condition of probation. On its face that provi sion states that defendant will abide by al l orders of the Chancery Court. At the time he pled gu ilty, there existed a Chancery Court order that, a mong ot her things, require d the payment of temporary alimony to his wife.

III. PROBATIO N REVOCATION4 A trial cour t may revo ke probation and order the impos ition of the original sentence upon a findin g, by a preponderance of the evidence, that the person has violated a condition of prob ation. Tenn. Code Ann. §§ 40-35-310, 311. The decision to revoke probation res ts within the sound discretion of the trial co urt. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revo cation of probation is subject to an abuse of discreti on standard of review, r ather than a de
novo standard. St ate v. Harkins , 811 S.W.2d 79, 82 (T enn. 1991). Discretion is abused only if therecord contains no substanti al evidence to support the conc lusion of the trial court that a violation of probation hasoccurred. Id. ; State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). These same sta ndards apply in determ ining a judicial diversi on revocation based upon an all eged violation o f probation.

Defendant cont ends that the record does not reflect that his failure to pay alimony was wil lful. The findings of the trial court regarding the basis for revoking defendant’s probation are somewha t confu sing. At the August 1998 r evocation proceeding, the trial court found that defendant fail ed to make alimony payment s as ordered by the Chancery Court. But, when pressed to determine whether such non-payment

was willful, the court stated, “I don’t think I have to find him in wil lful contempt. I just have to find that he hasn’t followed -- he hasn’t held up his end of the bargain. And he knew about this alimony.”

In the September

199 8 proceeding, the trial court seemed to indicate that perhaps defendant could not pay the alimony , but that such inability was irrelevant: TRIAL COURT: [Defendanthad ] a chance to get out of

this without a criminal

record, and he blew that. Perha ps he couldn’t help -- I shouldn’t say

“blew it,” because maybe he couldn’t pay. If you can’ t pay, you can’t pay. But that’s passed. Shortly after, in the same pr oceeding, the following exchange occurred: DISTRICT ATTORNEY: We ha ve shown that his2 We note that the trial judge who originally conducted these procee dings is now retired. Thus, it w

ould not appear f

easible to simply

remand for findi

ngs. 5 noncomplia n ce with [the ChanceryCourt’s] orde ris willful. TRIAL COURT: I have already found that. Our review of the record does not indicate a prior specific finding of wil lful non
compliance. Furtherm ore, there is no written order of revocation from which to clarify the remarks of the t rial court.

The trial court re voked defendant’s probation for failure to pay alimony as ordered by the Chancery Cour t. In this particular

situation, we respectful ly disagree with the trial court’s stat ement thatit did not have to find defendant in wi llful noncompliance with the Chancery Court ord er so as to justify the r evocation of probation.

The mere existence of an alimony ord e r does not signify an ability to pay. If, in fact, defendant was financiall y unable to make alimony pay ments, then he would not be in wi llful no n-compl iance with the Chan cery C our t’s order, and probation cannotbe revoked for that reason. See generally Bearden v. Georgia , 461 U.S. 660, 672-73, 103 S.Ct. 2064,2073, 76 L.Ed.2d 221 (1983); State v. Dye , 715 S.W.2d 38, 40 (T enn. 1986).
Although there was some proof concerning defendant’s bank account from which the trial court might have found willful non-compl iance, we are una ble to determine whether the trial court actually found willful non-compliance. Since such
a finding is necessary, we must reverse defendant’s revocation and remand for a new revocation hea ring. 2

IV. RECOMMENDATION UPON REMAND6 In its bri ef, the state ci tes to this Court’s deci sion in State v. Dominic Jude Amari , C.C.A. No. 01C01-9703-CR-00077, Tenn. Cri m. App. 1998 LEXIS 682, (Tenn. Crim. App. filedJune 30, 1998, at Nashville) in support of its argument that revocation based upon violation of another cour t’s order is proper. In that case, the defendant entered into a judicial di version agreement which req uired him to“abide byall orders of any co urt with do mestic jurisdiction.” The circuit court with civil jurisdiction found defendant in criminal contempt for discussing divorce matters in the presence of his minor son. At a later date, the cri minal court revoked defendant’s probation on the b asis that he “violated the order of the circuit court respecting his domestic case.” This Court upheld th e probation revo cation, statin g, “the evidence of appellant’s conte mpt order was sufficient to support the trial court’s decision to revoke his probation.” Dominic Jude Amari , 1998 LEXIS 682, at *3. We note, however, that unlik e the case a t bar, in Amari the criminal court had a pr ior finding of criminal contempt by the civil courtu pon which to base it’s p robation revocation.

We cannot help but note that it appears questionable whether the trial court and defense counsel sharedthe state’s understanding of the challenged provision’s effect. It is apparent from the recor d t hat the language of the provisi on was included by the prosecutor for the pr imar y purpose of enforcing the Chancery Court’s alimony order. The assis tant district attorney

(ADA) stated at the May 1998 revocation proceedings, “as far as . . . the [Chancery C ourt’s] order [requi ring defendant] to make alimony payments . . . the State w as aware of

this situation, and that is w hy we put in the order s ‘to abide by all future and present orders of th e Chancery Court.’”

The victim testified at the Aug ust 1998 revocation proceedi ng that she and the ADA thoroughlydiscussed the challenged condition of probatio n in the co ntext of her desire to receive alimony payments:7 DEFENSE COUNSEL: [the ADA] advised you at that t im e that

you couldn’t put in there that [defendant] would have to pay alimony as a part of this [plea] agreement? VICTIM: He said that we could put in there that he had to obey all other Court orders . . . or any . . . order in Chanc ery Court. DEFENSE COUNSEL: Now, mainly what you w ere speaking about was concerning the sta ying away from you -- VICTIM: No, sir. My big c oncern was

the alimony.
In both the August and September heari ngs, the ADA confirmed that enforcement of the alimony order w as the intent of the provisi on.

A t the September 1998 sentencing pr oceeding, the ADA discuss ed th e state’s desire that defendant be pl aced “under the gun” of the cr iminal court: “[T]he State ofTennessee doesn’t have [defendant] under the gun in ChanceryCourt. The State of Tenn essee is in here hop ing to have him under the gun in this court. We can only have hi m under the gun in the criminal case, and that’ s what we are aski ng Your Honor to do -- is to keep him under the gun also in the criminal case.
However, defense counsel made various statements evidencing a different understanding of the provision’s e ffect. At the May 1998 proceeding, defense counsel stated: “Itwa s our understanding . . . that w e were to abide by the po rtions

. . . [rel ated to]

the sit uation t

o stay a way fr om her -- the Order of Protection and the Restraining Orders. . . I did not advise him . . . that this order involved hi m having to pay alimony payments as part of his plea agreement on this cri minal charge.”

. . . “When [the ADA] and I were negotiat ing t his . . . [the ADA] was interested . . . concerning the Res training Orders and

. . . keeping [the parties] separated . . . that’s whatwe understood [to be] the gist of it

. . . I was pretty much flabbergasted by what was being brought up in the Court. I had no idea that [the alimony or der] would be

relevant.” Defense counsel also madesimilar statements at both the August and September proceedings.8 Similarly, the tri al court stated at the May 1998 proceeding: “[Defendant] m ay not have understood that he had that [o bligation]. Okay. . . . You know -- this is kindof - - maybe a tough situation for [defendant] b ecause y ou start crisscrossi ng a divorce case w ith a criminal case like this, and it can be pre tty difficul

t and cause so me problems. It has in his cas e.” At the August 1998 proceeding the trial court stated: “This is somethin g unusual -- a broad sta tement sayi ng that my probation is based upo n [defen dant] follow ing some ru les of some other Court. . . . The Chancery Court has got the ir business, and we’ve g ot our busi ness. . . . Here -- somebody got this thing in here about the Chancery Court and . . . everybody agreed to it, and that’s the way it went do

wn.” The trial court’s frustration is particularly apparent in itsstatement at the September 1998 sentencing: “I’ll be hones t wi th you . . . if I had thought more, I probably would never have approved this in t he first place . . . . ” (Emphasis added.) In fact, the trial court in s entencing defendant after the rev ocation dec lined to impose this same requirement as a condition of probation.

That is not to say that a criminal court cannot make compliance with another court’s orders a condition of probation. However, in cases w here ci vil divorce matters and criminal matters become entw ined, we suggest it isfar preferable that the civil courtbe given an opportunity to adjudicate it’s own contempt matters before the crimin al cour

t uses v iolati on of the c

ivil c ourt or der as a basis fo rprobation revocation. See generally Dominic Jude Amari , supra .

We share the frustration of the t rial ju dge who found himself conducting several proceedings relating to the non-pay ment of alimony as ordered by the ChanceryCourt. The underlying charges in criminal court were aggravat ed criminal trespass and assault. We also understand the frustration of the victim who was unable to receive the alimony as ordered by the Chancery Court. Nevertheless, it does not appear to be in the interest of justice to put a defendant “under the gun” of the criminal court to adj udicate any and all iss ues relating to civil litigation in another court. At the very

least, the criminal cour t, under these circumstances, has9

discretion as to whether to proceed with a revocation hearin g prior t o an adjudication by the civil court. However, since all probationers ar e required to abide bythe law, a finding of

criminal contempt by the civil court can certainly be used as a basis for revocation.

V. CONCLUSION

Bas ed upon the foregoing, we REVERSE the probation revocation an d termination of judicial div ersion and REMAND

for further proceedings.

____________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ DAVID G. HA

YES, JUDGE

____________________________ THOMAS T. WOOD

ALL, JUDGE