D iffe re n t p o rtio n s o f th e r e c o rd u til iz e d iffe re n t sp e lli n g s o f M r. In sc o ’s n a m e . A s is th e p o licy o f th is c o u rt, 1

w e u til iz e th e sp e lli n g in th e in d ic tm e n t. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT KNOXVI LLE Fe br ua ry 24, 200 9 S es sio n

STA TE OF TEN NES SEE v. RIC HAR D D . B AKE R

Appeal from t he Criminal Court for Sul livan Cou nty No. S50,593 Jon Kerry Blackwood, Seni or Judge

No. E2008-01382-CC A-R3- CD - Filed June 5, 2009

The de fenda nt, Richard D. Bake r, appe als the re vocation of his six-yea r probationary sentenc e. He contends that the trial court erre d by revoking his proba tion before the commenc ement of the probationary term and by or dering inca rce ration. Disce rning no err or, we a ffirm the judgment of the
tr ia l c ou rt

. Tenn. R. App . P. 3; Judgment of the C riminal Court Aff irme d

J A M ES C UR W OOD W I TT , J R ., J., delivere d the opinion of the court, in w hich N OR MA M C G EE O GLE and D. K EL LY T HOMAS , J R ., JJ., joined.

Wade V. Davie s, Knoxville, Tennesse e, for the appe llant, Richard D. Bake r.

Rob e rt E. Coo pe r, Jr
., At torne y Ge ne ra l and Re po rt e r; De sh e a Du la ny , A ssi sta nt A tto rn e y G e ne ra l; H. Gr ee l ey Wells, District Attorney G ener al; and Barry P. St aubus, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

In April 2005, a Sullivan County grand jury c harge d t h e d ef endant with one c ount of assault, one count of a ggravated burglary, one count o f e s p e c ia lly aggravated kidnapping, and f our counts of aggr avate d assault. The c harge s stemmed from the de fenda nt’s De ce mber 29, 2004 uninvited entry into the reside nce of his ex-wife , Olivia Baker, where in he st ruck Ms. Bake r in the fac e, thre atene d the lives of Billy Ray Insco and Charle s Nelson Wright with a handgun, and force d 1 Mr . I ns c o f

ro m th e ho me a t gunp oin t. On Ja nu ary 31 , 200 6, the de fe nd a nt en te re d p le a s o f g uil ty to assault, aggra vated bur glary, kidnapping, a nd two counts o f ag gravated assault. The fac ts, as

su mma ri z e d b y th e Sta te a t th e ple a su bmi ssi on he ari ng , a

re a s f oll ow s:-2- If there had been a trial in this case the Sta t e’ s p roof would be that this offe nse occurre d on Dec ember the 29th, 2004[,] at 3736 Arrow head Trail, which is loc ated in Kingspor t , S ullivan County. The State’s proof, again if there had been [a] trial, would be that of Olivia Baker , who was the ex-w ife of the d ef en d an t. She resided at that addre ss . . . it was her home. She ha d hired a Bill y Ray In s co [] and Nelson Wright to do security work at her home. H er te sti mon y w ou ld b e the de fe nd a nt c a me to the do or , sh e tol d h im t o leave , she advised that she went outside and that the defe ndant stated he ha d a ke y that he wa nte d to tr y. He r te sti mon y wo uldbe sh e tol d him that he could not come in the house and that he pushed her out of the way and he went int o the hous e and that he went upstairs a nd then sh e we nt u ps ta ir s a nda t tha t poin t the de fe nd a nt ca me in c on ta c t w ith Bill y Insco[ ], one of

the sec urity worke rs

. Her testimony would be that Doctor Bake r gra

bbed her by the hair in he r bedr oom and hit her, punched he r in the eye. And then he turned ar ound and af ter hitting her he went downstairs a nd went outside and w ent next door.

No w the Sta te ’s pr oo f w ou ld b e that he re turne d w ith

a we apo n a ndMr . I ns c o[ ] a dv ise d th a t th e de fe nd ant , an d h e wo uld testify to this, t hat the def endant c ame ba ck w i t h a g un and starte d asking who he w as and w hat he wa s doing t h er e. Mr. Insco[ ]’s testimony would be tha t the defe ndant pointed a gun at him and stated, “I ’ll kill you,” and then hit him twice in t h e h ea d wi th the

wea pon and drug him into the house. And Ne lson W right would say during this time that the defe ndant also pointed the gun in a thr e a te nin g ma nn e r t ow ardhim , a dead ly we apo n, a ndthat O liv ia Baker’ s testimony would be during this ti me that s h e observed that he also pointed a wea

pon at her. That would be the State’s proof, . . . if there had bee n a trial in this case

. Pursuant to a plea a gree ment with the State, the def endant r ec ei v ed an effe ctive
sentenc e of twe lve yea

rs to be ser ved as six yea rs’ inca rce ration in the De partment of Corr ection (“TD OC”) followed by six ye ars’ supervised probation. As a condition of probation and a s a spec ial condition of eac h judgment, the trial court order ed the defe ndant to have no c ontact with any of the vic tim s.

On Ap ri l 18 , 2 00 8, wh ile the de fe nd a nt w a s se rv ing his TD OC se nte nc e , th e Sta te fi le d a “ Mo tio n for Vi olatio n of Pro ba tio n, ” a lle gin g tha t the de fe nd a nt ha d viol a te d the te rm s of h is pr ob a tio n b y w ri tin g to Ms. Bake r o n th re e se pa rate oc c asi on s. Th e de fe nd a nt f ile d a re sp on se to the Sta te ’s mot ion , ar gu ing that the tr ia l cou rt wa s with ou t autho ri ty to re vo ke his pr ob a tio n b e c a us e his probationary te rm had not ye t commence d, that the State had “ engage d in unrea sonable de lay” in filing the m otion, that the defe ndant had a lrea dy been punishe d via a de nial of par ole for w riting the letters, a nd that the trial court should consider “le ss onerous alternativ es t o re vocation.” T heO t her por t i ons of t he r ec or d e s t abl i s h t hat t he def enda nt s uf f er s f

r om s eve r e di abe t es r equi r i ng t hat he be 2

p la c e d in a “ sp e c ia l n e e d s” fa c ili ty w ith in T D O C . T h e re c o rd a lso e sta b lish e s th a t t h e d e fe n d a n t w a s d e n ie d p a ro le

s ubs eque nt t o t he r evoc at i on he ar i ng.

-3- defe ndant admitted writing the letters and stated that no other letter s had bee n written since Ja nuary 2007.

Neither

party pre sented testimony at the May 12, 2008 he arin g on the re vocation motion, choosing inst ead to r ely upon the ar guments of counse l and the letters written to Ms. B aker

. At the conc lusion of the hearing, the trial court revoke d the defe ndant’s probation, finding first that “he [ was] subje ct to probation and that

. . . he [wa s] subject to the conditions of the probation in the second se ntence .” The court also found t hat t he revoca tion was “ timely filed and that as f ar ba ck as January[] 2007 the S tate gave not ice of these letter s or their intention to file a pr obation revoc ation

as a r esult of these c onditions.” The trial court noted that “the most imp ortant consider ation of probation in this plea ar

range ment was that he have no c ontact with any of the victims in thi s case ” and conc luded that “ba sed upon these le tters and [ the def endant’ s] own admission that from . . . October 2006 through January of 2007 that he w rote thre e letter s . . . they ar e cle ar violations of the terms of probation.” The c ourt det er m i n ed that “the State ha s proved by a preponde ranc e of the evidenc e that [the defe ndant] ha s v i o l at ed the terms not only of his probation but the terms of the plea a rra ngement as w ell.”

The trial c ourt noted that it was particularly conc erne d t h at t h e def endant ha d “not taken any res p o n s ib il it y f o r h is a c ti o n s a n d s ti ll c o n s id e r s th a t h is p li g h t i s a r e s u lt o f e ith e r the manipulations of the Sullivan Count y Judicial System, the District Attorney’ s Of fi ce and law enfor ceme nt or the manipulations and allegations made by his ex-w ife and . . . the two men that we re there .” The court observe d that the defe ndant’s role in the offe nses was c lear and conc luded that the defend ant “def

ini te ly p os e s a

thr e a t to so c ie ty u nti l he ge ts a grip o n h is r e sp on sib ili ty f or his conduct in this case .” The trial court did not orde r that the e ntirety of the second six-year sentenc e be ser ved in conf

inement but instead orde red the d efendant to serve an additional yea r of incar cer ation to be followed by supe rvised probation with global posi tioni n g s y s t em (“ GPS”)

mon ito ri ng . T he c ou rt

sp e c if ie d th a t th e de fe nd a nt w a s to c omm e nc e se rv ic e of the 12 mon ths ’ incar cer ation immediately upon his r elea se on parole
, which the parties believed to be imminent, and order ed that the se ntence be ser ved in TDOC “simply bec ause of the medica l issue.” 2

Th e de fe nd a nt f

ile d a tim e ly n oti c e of

app e a l f rom the re vo c a tio n o rd e r. In thi s appea l, the defe ndant first conte nds that the trial court was without authority to revoke his probation beca use the probationary sentence had not yet commenced when he wr ote the letter s to Ms. Baker. He a lso contends that “a llowi n g re vocation of pr obation at this point would rewrite the ple a

a gr e e me nt a ft e r the fa c t a ndre nd e r the ple a inv olu nta

ry .” He a sse rt s th a t th e tr ia l c ou rt abu se d it s discretion by re voking his probation because he ha s alrea dy been punishe d, via a de nial of par ole, fo r w ri tin g th e le tte rs , b e c a us e he ha s n ot c on ta c te d th e vi cti m si nc e Ja nu ary 20 07 , a ndbe c a us e

“ the re are a de qu a te sa fe gu ard s inpla c e to i ns ur e the sa fe ty o f the c ommun ity .” Fin a lly , in re sp on se to the Sta te ’s su gg e sti on that th e tr ia l c ou rt c ou ld n ot h a ve orderedthat th e a dd iti on a l 12 mon ths ’ inc arc e ratio n b e se rv e d in TD OC , th e de fe nd a nt c on te nd s th a t the a me nd me nt o f the jud gme nt “ to-4-

ref lect a jail se ntence rathe r than” a TDOC sentenc e would be “c lear ly contrary to the intent of the trial court.” He asks that should we find re vocation appr opriate but a TDOC sentenc e improper , we should remand the c ase for the trial court to r econside r the reme dy portion of the re vocation orde r.

I. Trial C ourt’s Authority to Revoke Probation

The de fenda

nt co n t en d s t h at t h e t ri al co u rt erre d b y re v o k i n g h i s s i x -yea r proba tionary
sentenc e bef

ore the probationary term had a ctually commenced. The S tate asserts that the trial court possessed the authority to revoke the de fenda nt’s probation at any time following the e ntry of the judgment. We a gree with the State.

Although the defe ndant cor rec tly asserts that his six-year probationary sentenc e had not yet begun whe n he wr ote the letter s to Ms. Bake r, this c ourt has re peate dly held that “fr om the date of the entry of

a judgment . . . a tria l court has the authority to revokeprobation if a de fenda nt commits another crime afte r entry of t he judgm ent, but befor e the pr obationary te rm begins.” Sta te v. Stone , 8 80 S .W. 2d 74 6, 74 8 ( Te nn . Crim. Ap p. 19 94 ); see also, e.g.
, Sta te v . S tub ble fie ld , 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997). In Stone , we r uled that neither

the language in Code section 40-35-310 providing for r evocation “at any time within the maximum time that was direc ted and o rd er ed b y the court for the suspension,” see T. C.A . § 40 -3 5- 31 0 ( 20 06 ), no r the la ng ua ge in section 40-35- 311 appl y i n g revoc ation proce dures to a de fenda nt “who has be en re lease d upon suspension of sentenc e,” see id. § 40-35-311, “ purport[s] to limi t to such a circ umstance the trial court’s authority to act.” Stone
, 880 S.W.2d at 748. Late r, in Sta te v . Smi th , 909 S.W.2d 471 (Tenn. Crim. App. 1995), this court re iterate d Stone’s holding that “the pr ocedur al statutes d[o] not pur port to limit the trial court’s power to revoke ” and held “that from the date of entry of the judgment of conviction
, a

tria l c o u r t h a s th e a u th o r it y to r e v o k e p r o b a ti o n f o r th e v io lati o n o f

a p r o b a tiona ry condition whose application the defe ndant was ma de aw are , even if the proba tionary term ha s not yet begun.” Id. at 473.

In Sm ith , Sm ith ple a de d g uil ty t o th e a ssa ult a ndsta lki ng of

the vict im . His

consec utive 11-month and 29-day sentenc es were init ially diverted with the “rele vant” c ondition of his relea se being: “‘ Stay away a bsolutely from victi m an d h er fa mily, their homes, places of employment, children’ s schools. There shall be no conta ct, whethe r by mail, message, tele phone, th ir d p ar ty , o r in p e r s o n.’” Id. at 472. Smit h violated this condition, and the trial court revoke d div e rs ion a nd or de re d the de fe nd a nt to se rv e the fi rs t of the tw o s e nte nc e s in the W e akle y Co un ty Ja il a ndthese c on d o n p ro ba tio n fol lo wi ng hi s re le a se fr om j a il. W hil e he wa s in ja il, Smith telephoned the victim, dedicated a song to her on the r adio, and ha d his sist er c ontact the victim. The trial court r evoked Smith’s probation on the sec ond sentenc e as a result of the c ontact. This court aff irmed t he revoca tion, finding that the principles iter ated in Stone we re app lic able to Smith’ s c a se “eve n though [Smit h’s] c onduct might be viewed to violate a court-order ed condition of probation and not a criminal statute.” Id. at 473. Because Smith was “advised in ope n court” of the no-c ontact condition, we re asoned, “ even though his probationary term ha d not begu n , [Smith] was given

su ff ic ie nt n oti c e to c omp ly w ith du e pr oc e ss that hi s vio la tio n of the no c on ta c t or de r w ou ld r e su lt in revoc ation.” Id.-5- The re levant fa cts in Sm ith are indisti nguishable fr om those in this case. From the

commence ment of proc eedings in this c ase, the trial court r epeatedly admonished the de fenda nt that he wa s to have no c ontact with any of the victims in thi s case . Indee d
, the def endant’ s bond was revoke d on the basis of hi s continued conta ct with Ms. Baker. At the ple a submission hearing, the trial court emphasized the importance of t he defenda nt’s having no contac t with Ms. Baker and the provision was included a s a “spe cial condition” on ea ch of the judgment forms. Notwithstanding the ora l and written a dmonitions of the trial co u rt, the def endant r efuse d to comply with the nocontac t provision.

W e are a lso un pe rs ua de d by the de fe nd a nt’ s arg ume nt that the ple a a gr e e me nt in this

c a se wa s ina ny way “ un iqu e ” or that it dis ti nguis he s th is c a se fr om Stone or Sm ith or, for that matter, a ny of the other

myriad ca ses al l o wi n g re vocation prior to the c ommenceme nt of the probationary t erm. Although the de fenda nt repe atedly posits that the fac t that the defe ndant’s “probation was not to start” until he had f ully served his first sente nce w as an e xtraordina ry sentenc e alignment, such an a lignment was exa ctly the ca se in Sm ith an d is, indeed, a r outine sentenc ing

a lig nme nt i n th is s ta te . G ive n th e de fe nd a nt’ s obv iou s a wa re ne ss o f the no -c on ta c t c on dit ion , th is court’s pr evious holdings that probation may be re voked p ri o r t o the commenc ement of the pr ob a tio na

ry te rm , a ndthe fa c t th a t th e de fe nd a nt’ s c a se is i nd ist ing uis ha ble fr om o ur

e arl ie r c a se s,

we c a nn ot sa y t h a tt h e tr i a l c o u r tl a c k e d t h e a u t h o r i t y t o r e v o k e t h e d e f e n d a n t ’ s p r o b a t i o n i n t his

case

. II. Voluntariness of the Guilty Pleas

Th e de fe nd a nt c on te nd s th a t “ a llo wi ng re vo c a tio n o f pro bation a t th is p oin t w ou ld

rew rite the plea

agre ement af

ter the f act a nd rende r the plea

involuntary.” He argue s that “[t]he plea would not ha ve been knowing and voluntary if it is later determined that Dr. Baker wa s t o b e on pr ob a tio n f

or tw e lve ye ars .” W e ne e d n ot b e la bo r this arg ume nt b e c a us e it is pre se nte d for the fi rs t time on appea l and there fore waived. See Te nn

. R. Ap p. P. 3 6; State v. Johnson , 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“I ssues raise d for the f irst time on appea l are considere d waived.” ).

III . Propriety of Rev ocation

The de fenda nt claims that the trial court erre d by revo k i n g probation and or dering inc arc e ratio n in thi s c a se be c a us e he “ ha s a lr e a dy be e n s e ve re ly p un ish e d f or writi ng the let ters” beca use “the Parole Boar d denied pa role spec ifically bec ause D r. Baker contac ted the victim.” The State submits t hat the trial c ourt ac ted prope rly. We agre e with the State.

A trial court may revoke a sentenc e of probation upon a finding by a pr eponder ance of the e vidence that the def endant has violated t he conditions of hi s rele ase. T.C.A. § 40-35-311( e) (2 00 6) ; Sta mp s v . S tat e , 6 14 S.W .2 d 71, 73 (T e nn . Crim . App . 198 0)

. A re vo c a tio n will be up he ld absent a showing that the trial court abused its discretion. S ta te v

. H a rkins
, 8 1 1 S

. W. 2d 79, 82 (T e nn . 1 99 1) . I n o rd e r t o e sta bli sh that the tr ia l c ou rt ha s abu se d it s d isc re tio n, the de fe nd a nt mus t show that there is no substantial e vidence to support the determination that he violated his probation. Id. (citing State v. Gre ar , 568 S.W .2 d 2 85 , 2 86 (T e nn . 1 97 8) ; Sta te v . D e lp
, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). Relief will be grante d only when “‘ the trial court’s logic and re asoning-6-

was im p ro p er wh en viewed in light of the fa ctual cir cumstance s and re levant lega l principles involved.’” State v. Shaffer
, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting Sta te v . M oo re , 6 S.W.3d 23 5

, 2 4 2 ( T e n n

. 1 9 9 9 ) )

. U p o n f in d in g a v io lati o n , th e tria l c o u r t may “ r e v o k e th e probation and

s u s p en s ion of sentenc e and c ause the defe ndant to commence the exe cution of the judgment as originally entere d.” T.C.A. § 40-35- 311(e) . Furthermore , when pr obation is revoked, “ the original judgmen t s o r e n d e r e d b y th e tria l ju d g e s h a ll b e in f u ll f o r c e a n d e f

f e c t f r o m th e date of

the

revoc ation of t he suspension.” Id. § 4 0- 35 -3 10 . T he tr ia l ju dg e re ta ins the dis c re tio na ry a uth or ity
to or der the defe ndant to se rve the original sentenc e. See State v . Duke , 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

Her e, the de fenda nt admits that he committed the violation alleged but argue s that the tr ia l c ou rt

e rr e d b y o rd e ri ng inc arc e ratio n b e c a us e he ha d alr e a dy be e n de nie d paro le on the ba sis of the sa me c on du c t. T he “ No tic e of Boa rdAc tio n” inc lu ded in the re c or d in dic a te s th a t a t le a st three of the pa

role boa rd member s cited the de fe n dant’s conta ct with the victim as a ba sis for the denial of pa

role. All of the sign i n g b o ard me mbers cited a desire to r efr ain from de prec iating the seriousness of the offe nses as a rea son for de nying parole.

The de fenda nt has cited no authority in support o f h i s argument, a nd we c an find none. The defe ndant’s situation is not unli ke the pr o b ationer w ho violates his probation by committing another crime a nd later rece ives both a probation revocation and a sepa rate conviction and sente nce f

or the violative c onduct. Surely the de fenda n t d oes not intend to suggest that

revoc ation in such ana logous circumstanc es wou ld b ein a p p r o p ria te

. T h at the defe ndant’s par ole was denied, at least in part, on the basis of his writing the letters to the vic tim does not im pact the trial court’s discr etion to revoke his probation.

W e a gr e e wi th the tr ia l c ou rt that th e de fe nd a nt’ s c on ti nu ed ef fo rt s to c on ta c t w ith Ms. Baker de monstrate an unw illingness to abide by the conditions of his probation or ac cept responsibility for his conduct. Moreove r, we are unmoved by the defe ndant’s assertion that he has
not contacte d the victim since Janua ry 2007. The defenda nt’s newf ound desire to comply with the conditions of his sen t en ce d o es not alter the f act that he blatantly violated the most para mount condition of the plea

agre ement. The trial court did not err by revoking the de fenda nt’s probation and orde ring that he ser ve an a dditional 12 months of inca rce ration.

IV. Location of Service of Incarce ration

In a f ootnote in its brief, the State “ac knowledges tha t the trial court did not have the authority to sentence the def endant to ser ve 12 months in TDOC and that the court can only orde r split co n fi nement to the county jail.” I n response , the def endant state s that “suggesting that the jud gme nt s ho uldbe a me nd e d to r e fl e c t a ja il s e nte nc e rathe r tha n h a ve Dr . Ba ke r s e rv e the tim e in

a De pa rt me nt o f Cor

re c tio n f a c ili ty a s o rd e re d .

. . is c le arl y c on tr ary to the int e nt o f the tr ia l c ou rt ” and suggests that, if the State’ s ass ertion is corr ect, the c ase should be r emande d so that the trial
court c an fa shion the appropriate re medy.

W e no te si m p l y t h a tt h e S t a t e ’ s g e n e r a l i z e d a s s e r t i o n i s i n c o rr e c t , o r a tl e a st incomplete. Although it is gener ally true that “if the sentenc e is eight (8) years or less and combined-7-

with periodic or split conf inement not to exce ed one (1) year , the court shall designate the place of confine ment as a loc al jail or workhouse ,” T.C.A. § 40-35-314( a) ( 2006), the trial c ourt possesses the authority to “tra nsfer the def endant to” T DOC in the eve nt the defe ndant “de velops medica l problems that the loca l jail or workhouse is not equipped to tre at,” id. § 40-35-314( e). I n this case, the re cord e stablishes that the defe ndant’s m ed i cal condition necessitates a TDOC sentenc e. In conseque nce, the trial court c ommitt ed no er ror by or dering the defe ndant to se rve the additional 12

mon ths ’ i nc arc e ra

tio n in TD OC

.

V. Conclusion

In lig ht o f the fo re go ing a na lys is, we a ff ir m th e jud gme nt o f the tr ia l c ou rt

.

___________________________________ JAMES CURWOOD WI TT, JR., JUDGE