### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON January 8, 2002 Session STATE OF TENNESSEE v. LARRY AMMONS Direct Appeal from the Circuit Court for Lauderdale County Nos. 5889, 6112 Joseph H. Walker, Judge

No. W2001-00834-CCA-R3-CD - Filed March 18, 2002

The defenda

nt was co nvicted i n 1993 of th ree coun ts of aggravated burglary, and the trial court imposed three concurrent three-yea r sentences. In 1995, the defendant was convicted of one count of burglary and five counts of aggravated burgla ry. The trial court imposed a four-year sentence f or the burglary count and six-year concurre ntsentences for each of the aggravated bur glary counts. The de fendant’s latter se

ntenceswere to b e serve d consecutively to h is previous three -year s ente nce, wit h probation granted

as to all sentences. Subsequently, a petition to revoke the defendant’s probation was file d, allegi ng that the defenda nt had fa iled to re port to his probation officer and failed to pay restitution as ordered. Following a hearing, the court revoked the probation, an d t he defendant timely appealed. On

appeal, the defendant

claims tha

t there w as insuff

icient ev idence t o revoke his probation, that his due process rights were violated, and tha t h e received ineffective assistanc e of counsel during his probation revocation hearing. After a thorough review of the record, we affirm the judgment of the trial court but remand for entry of a corr ected order revoking probation only as to Docket No. 6112. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med and Remanded for Entry of Corrected Order
A LAN E

. G LENN , J., delivered the opinion of the court, in which J OE G. R ILEY and J OHN E VERETT W ILL IAMS , JJ., joined. Gregory C. Krog, Jr., Memphis, Tennessee (on appeal); Gary F. Antrican, District

Public Defender; and JulieK. Pillow, Assistant District Public Defender (at trial), for the appellant, Larry Ammons.
Paul G. Summers, Attorney Generaland Repor ter; P. Robin Dixon, Jr ., Assista nt Attorne

y Gener al; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.
OPINION
On September 8, 1993, the defendant, Larry Ammons, was convicte d of three counts of aggravated

burglary, a Class C felony, under Docket No. 5889. The court imposed three concurrent1 Since the ap plicab le judg me nt she et wa s not in clud ed in the r ecord, we are unabl e to de ter mine whether the defe nda nt’s co nvic tion fo r bu rglary und er D ock et No . 611 2 w as a C lass D or C lass E f elon y.

2 At the time the trialcourt is sued the April11, 1995, ord er allow ing th e def end ant to serve his sen tence s with the Syn ergy Fou nda tion P rog ram , the de fend ant h ad p end ing c harg es in D yer C oun ty an d G ibson Co unty

. The cou rt stat ed that i ts order

would be contingent on Dyer County and Gibson County allowing the def endant to se r ve thos e sentences with the Sy nerg y Fo und ation as w ell. Th e def end ant su bseq uen tly com pleted his senten ce in G ibson Co unty and wa s gran ted p rob ation for h is senten ce in D yer C oun ty. -2- sentences of three years each. On April 10, 1995, the de fendant w as convicted of one count of burglary 1 and five counts of aggravated burglary, a Class C felony, under Do cket No . 6112. The court imposed a four-year sentence for the burglary count

and six-year concurrent sentence s for each of the five counts of aggravated burglary. This effective six-year sentenc e was to run consecu tively to the sentences imposed under Docket No. 5889.
On October 22, 1993, the defendant was granted probation for the balance of his sentences under Docket No. 5889. In September of 1994, the State filed a petition to revoke his probation, but the court denied it. In February 1995, the State filed another petition to revoke the de fendant’s probation. On April 11, 1995, the cou rt denied th is second petition a

nd allowe d the def

endant to serve his sentences under Docket Nos. 5889 and 6112 with the Synergy Foundation Program instead of the count y jail. 2 The cour

t later a llowed the

defenda nt to transfer the balance

of his sentence from the Syn ergy Foundation to the Serenity House Program. In December of 1996, the State filed a third petition for revocation, and the court denied the petition. After the de fendant completed the Serenity House drug treatment program, thecourt suspended the defendant’s sentences a nd placed him on supervised probation. On February 27, 1997, the t rial court issued an order waiving the defendant’s probation fees and imposing a minimum payment of $50 per month toward restitution. In this order, the court noted that the defendant was still under probation for Docket No. 6112 and had consented to a two-year extension of his probation for Docket No. 5889. On October 12, 2000, the defendant’s probation officer filed a probation violation report, citing that the defendant had not contacted her in over a year

and had not paid the restitution. The State then filed the instant petition to revoke probation. On January 22, 2001, the trial court revoked the defendant’s probation after a hearing.
The defendant and his probation officer testified at the re vocation hea

ring. The probation office r testified that the

defenda nt had fa iled to re port to he r in over a

year and had failed to make court-ordered

payments of $50 a month toward restitution. The defendant testified th at he was unable to make res titution pay ments because he had financial problems afte r starting his own business. The def

endant st ated tha t h e did no t make restitution payments for several months and then made a payment of $700 or $800 for t

he Docke t No. 5889 s entence . He also testified that when the re stitution was due under Docket No. 6112, he was unable to pay it and had suffe red a ba c k injury. The defendant admitted that he would not be at the hearing if he had reporte d to his probation officer and made the restitution paymen ts as ordered. On cross-examination, the defenda nt admitted that he was being sued by a finance company over a loan he had gotten to purc hase a truck.-3-

After hearing the evidence, the trial court noted that the defendan t had bee

n allowed to particip ate in two prog

rams that enabled him to avoid

incarceration. The court emphasized that the defend an thad no contact with his probation officer for a per iod exceeding one year and did not regular ly pay his restitution. The court also noted that while

the defe ndant wa s able to p ay or com e up with a $ 20,000 bond for his probation violation, he was unable to pay his restitution according to schedule. Based

on the evidence, the trial court found that the defenda nt violated his probation and determined that revocation was proper.
The defendant filed a motion for an evidentiary hear ing and a motion for correction and/or modification of sentence, and the trial court denied both these motions. On May 10, 2001, this court granted the defendant a delayed filing of a ppeal.
ANALYSIS
I. Suffici ency of t

he Evidence

at Probat

ion Revoc

ation Hear

ing A trial court is granted broad authority to revoke a suspended se ntence and to reinstate the original sentence if it finds by the preponderance of the evidence that the defendant has violated the terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§ 40-35-310 and 40-35- 311 (1997). T

he revoc ation of p

robation lies within

the sound discretion of the trial court. State v. Harkins , 811 S.W.2d

79, 82 (Te

nn. 1991) ; State v. Stu

bblefield , 953 S.W.2d 223, 226 ( Tenn. Crim. App. 1997) ; State v. Mitchell , 810 S.W.2d 7 33, 735 (Tenn. Crim. App. 1991). A trial court’s revocation of proba

tion will no t be reve

rsed on a ppeal unl ess the c ourt abused it s discretion. Harkins , 811 S.W.2d at 82 (citing State v. Williamson , 619 S.W.2d 145, 146 (Tenn. Crim. Ap p . 1981)). To show an abuse of discretion in a probation revocation ca se, “ a defendant must demonstrate ‘that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the conditions of probation has occurred.’” State v. W all , 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting State v. Delp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). The p roof of a probation violation need not be established beyond a rea sonable doubt, but it i s sufficient if it allows the trial court to make a conscientious and intelligent judgment. Harkins , 811 S.W.2d at 82 (citing State v. Milton , 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)). We review this issue, therefore, for an abuse of discre tion.
Th e defen dant claims the State offered “conclusory” e vidence in establishing the defendant’s failure to repor

t and fai lure to pa

y his cour t-order ed restit u t ion. The defendant argues in his brief that he “specifically

testifie d that he c ontacte d [his p robation officer] on multiple occasions.” Actually, his explanation on direct examinationas to meetings with his probation officer is lengthy but unclear: [The probation officer] knew w h ere I was working and how

I was working and things. AndI’d contact her, and she had to ld me to repor t in ever y three m onths. We

had moved

up to that s tatus.-4- I think there was something that happened with the probation time there, back during that domestic violence thing. I contacted [the probation office

r], and s he said th at someone else ha d gotten the case or wha te ver and s aid that th ey were going to tr

ansfer me back t

o Jackson. I told

her that I really didn’t want to transfer to Jackson, that I wanted to stay the

re, that , you know , if

needbe I would just move back to Laude rdale County because I didn’t want that embarrassment and humiliatio n to keep following me everywhere I went, the things that I had done, you know, that I’m not proud of.
On cross-examination, h owever , he resp onded re garding t he infrequency o f repor

ting to Bridget Jump, his probation officer:

Q. Since December of

1999, over a year, you

have not met with her, and you know that the Court ordered you to meet with this lady, and you haven’t done either one, have you?
A. Yes, ma’am, I did up until the point – Q. Since December of

1999, over a year, you

have not met with her, and you kn ow that the

Court orde

red you to

do it?
A. Yes, ma’ am. He also admitted that, as to Docket No. 6112, he had paid no restitution: Q. Okay. But on this case that you’re being revoked on, 6112, Ms. Jump said you ha

ven’t pa id anythin g on this ca se, the f ive burgl aries.
A. Right. We conclude that, taking the record as a w hole, there was “substantial evidence to support the con clusion of the trial judge.” Wall , 909 S.W.2d at 10 . The defendant’s probation off ice r testified that he ha

d not repo rted to he r in the year preceding the filing of the petition for revocation of probatio n; and he a

dmitted tha

t he had not. Thus, the

evidenc e that th e d efendant had violated his probation was not just “substantial”; the violation was admitted. Therefore, we conclude that the trial court did not abuse its discretion in revoking the defendant’s probation. II. Defendant’s Due Process Rights
The defendant argues that the trial court’s revocation of his probation is without evidentiary support and violates his due process rights. In Black v. Romano , 471 U.S. 606, 613, 105 S. Ct. 2254, 2258, 85 L. Ed. 2d 636, 643-44 (1985), the United States Supreme Court reiterated that the due-5-

processrights given in a probation revocation proceeding are not as expans ive as tho se rights aff ordedto defendants in criminal trials. The Court stated, “[O]ur prec edents have sough t t o preservethe flexible, informal nature of the revocation hea ring, which does no t require the full p anoply of procedural safeguards associa ted with a criminal trial.” Id. (citations omitted). I n Gagnon v. Scarp elli , 411 U.S. 778, 782, 93 S. Ct. 1756, 1760, 36 L. Ed. 2d 656, 662 (1973), the Suprem e Court set out the “minimum r

equirem ents of du e proce ss” for f inal rev ocation h

earings : “(a) written notice of the claimed violations of [probation or] parole; (b) disc losure to

the [pro bationer or] par olee of e vidence against h im; (c) opportunity to be heard in p erson an d to present witnesses and documentary evidence; (d) the right to confront and cross-e xamine a dverse witnesses (

unless the hearing of

ficer specifically finds a good cause for not allowing confrontation); (e) a ‘neutral and

detached’ hear

ing body su ch as a

tradition al parol e board, members of which need not be judicial officers or la wyers; and (f) a written statement by the factfinders as to the evidence re lied on and reasons for revoking [probation or] par ole.”
Id. at 786, 92

S. Ct. at 1761-62, 36 L. Ed. 2d at 664 ( alterat ions in orig inal) (quoting Morrissey v. Brewer , 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 499 (1972)). The defendant argues that his due process rights we re violated when thetrial court did not differe ntiate betwee n his expir

ed and unexpired

probatio nary ter

ms when re

voking his p

robation

. At the time the trial court revoked his probation, the defendant’s sentenc e under Docket No. 5889 had expired . We ther

efore r emand thi s case to

the trial court for entry of a corrected order revoking probation only as to Docket No. 6112.
The defenda

nt argue s also tha

t his due pr

ocess ri ghts were vio late d when the trial court revoked his probation withoutconsidering his ability to pay the restitution. In Bearde n v. Geor gia , 461 U.S. 660, 672, 103 S. Ct. 2064 , 2073, 7 6 L. Ed. 22 1, 233 (19 83), the U nited State s Supreme Courtheld that during a revocation hearing for failure to pay a fine or

restitutio n, a tria

l court mus t “inquire into the reasons for the failure to pay.”
In view of th

e defendant’s a

bility to pos ta $20,000 bond and purchase a new truck during the pe r iod that he made no restitution payments as to the convictions resulting from Docket No. 6112, it is not dif

ficult to see why the trial court concluded that the defenda ntdecided

to spend hi s funds on himself

rather than the victims of his burglaries. However, because the c ourt had sufficient-6-

reason to revoke the defendant’s probation as a re s ult of his admitted f ailure to report to his probation officer, it is unnecessary for us to resolve the c laim regarding the adequacy of the proof as to his ability to pay restitution.
III. Ineffective Assistance of Counsel
In Richar d Kiser v. State , Nos. 01C01-9503-CC-00071, 01C01-9503-CC-00082, 1995 Tenn

. Crim. App. LEXIS 953, at *11 (Tenn. Crim. App. Dec. 6, 1995), this court explai ned how an ineffe ctive as sistance

of counse

l claim re lates to a revoca tion hear ing: [T]he right to counsel at a revocation or proba tion hearing is not guaranteed

by either the Con stitution of the United States or the Constitution of the State of Tennessee. Th us, th e effectiveness of counsel at a revocation

hearing is not a co nstitutiona

l issue, except in those cases where the performanc e of counsel is so defec ti ve that another right which is constitutionally guaranteed at a revocation hearing is violated.
Id.
As for

his claim that his counsel at the revocation hearing provided ineffe ctive assistance, the defenda

nt asser ts that “ counsel’s representation was so inadequate that it did not assist Mr. Ammons in either contesting the fact of violation o

r prese nting the s ubstantia

l reason s that woul d have excused any failure on his part.” The def endant’s options, especially with regard to his failure to report to

his proba

tion offic er, wer

e very c ircumscr

ibed. His pro bation officer testified at the revocation hearing held on January 22, 2001, that the defendant had failed to repor t to her since December 1999. The defendant admitted that this was true , although, apparently, he attempted to explain some subsequent agreement with the probatio n office

r regar ding the r eporting require ment. As to the failure to report

violation, there is no explanation of what an effective counsel would have done that his own counsel did not. The probation officer testified that he had not reported to her in a year, a nd he admi

tted that h e had not. Accordingly, we conclude that this claim is without merit.
CONCLUSION
We affirm the judgment of the trial court revoking the defendant’s probation but remand for entry of a corrected order revoking probation only as to Docket No. 6112.

___________________________________ ALAN E. GLENN, JUDGE