# FILED
August 13, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1999 SESSION

STATE OF TENNESSEE, * No. 02C01-9802-CR-00041 Appellee, * SHELBY COU NTY VS. * Hon. Joseph B. Da iley, Judge CLIFFORD W. JACKSON, * (Probation Revocation) Appellant. *

For Appellant : For Appellee : Marvin E. Ballin, Esq. John Knox Walkup Mark A. Mesler, Esq. Attorney General and Repor ter Ballin, Ballin & Fishman, P.C. 200 Jefferson Avenue, Suite 1250 J. Ross Dyer Memphis, TN 38103 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Lee V. Coffee Assistant District A

ttorney General Criminal Justice Center, Third Floor 201 Poplar Avenue Memphis, TN 38103

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Clifford W. Jackson, pled guilty to unlawful possession of marijuana with the intent to sell or deliver, a Class D felony. The trial court imposed a Range I sentence of tw o years. The sentence was suspended and the defendant was granted a probationary term of three years. Approximately six months later, the trial cour t revoked probation.
In this appeal of right, the de fendant presents the following issues for review: (I) whether lack of proper noti ce of probation

revocation deprived the defendant of due process; and (II) whether the trial cour t erred by revoki ng probation based solely on the defendant's lack of candor. We affirm the judgment of the trial court.
At the initial sentencing hearing, the defendant testif ied that he and his co-defendant, Terry Lewis , decided to visit friend s at Kentucky State Univ ersity. The defendant, who drove his v ehicle, stated that he was aware that Lewis had packed "something" in the car but cl aimed that he did not learn the subs tance was marijuana until well into the trip. Lewis was driving w hen a Memphis police officer stopped them for speeding. When the officer noticed that t he Lewis was nerv ous and did not make eye contact, he asked to search the vehicle. Lewis refused the officer's request but a trai ned police dog alerted the officer to the presence of illegal drugs. Subsequently , the officers discovered ov er twelve pounds of marij uana. At the sentencing hearing, the defendant testified that he was embar rassed about the incident, that he had used poor j udgment, and that a felony conv iction would be detrimental to his career in social work. On cross-examination, the defendant3 denied telling the inv

estigating officers that he and Lewis had purchased the marijuana for $500.00 per pound and planne d to sell it in Kentucky

for a profit. The defendant contended that he h ad not actually discussed with Lewis how much profit he might realize but had estimated some $2,000.00.

The defendant, a Texas resident, had attend ed Rice University on an athletic scholarship and, after graduating in 1993, had obtained work as a mental health, mental retardation aide for the State of Texas. He liv ed alone and supported himself. He admitted that he had been pr eviously charged with credit card fraud but claimed that the charge had been dismissed.

Although the co-defendant Lewi s failed to appear at the sentencin g hearing, the trial cour

t chose to sentence the defendant at that t ime: I have some real concerns with [the defendant's] testimony today. I don't think he's been as forthcoming with the truth as he could have been. When you were first questioning him he seemed to indicate ... that he had no idea what was in the car, when it got in there, where he was goin g, anythin g at all abo ut this ac tivity. And only during cross-examination did it slowly begin to come out that, wel l, yes, he did know what was in there, he did know it was mari juana, he did

have some general idea of how much money he was going to make on it. *** But as far as actually admitting to participating in this enterprise, he did as much as he could to deny it.

... He denied everything. So he only admitted to as much as he had to given the factual circumstances under which he was arrested. So I'm not really impressed with his testimo ny today. *** I will, reluctantl

y and against my better judgment, but because of your employment, educa tional background, lack of criminal history , grant the request for pr obation....
In September 1997, the trial cour t conducted the sentencing hear ing for Lewis. After Lewis

testified, the proceedings w ere continued due to the trial4 judge's concern over

discrepancies in the test imony of the two men regar ding the extent of the defendant's involv ement in the offense. At that point, the atto rney who had represented both the defendant and Lew is filed a motion to withdr aw due to the likely conflict of inter

est. The trial court order ed the defendant and Lewis to appear for a second hearing, each w ith substitute counsel.
While the pleadings are not in the recor d, the state apparently filed a petition to revoke the defendant' s suspended sentence. At the Januar y 12, 1998, revocation hearing, Lewis testified that he and the defenda nt had each invested in six pounds of marijuana and had planned to sell it for a prof it in Kentucky. Lewis claimed that he had personally obtained the marijuana f rom a woman in Texas. He stated that he acquired his share on credit and that the def endant paid roughly $2,000.00 for the other six pounds.

The defendant revealed that at his i nitial sentencing heari ng he had tried to minimize his r

ole in the offense and that some of his earl ier testimony may have been misleading to the extent of his involv ement. While conceding that he had not been entirely forthcoming as to the level of his participation, he neverthele ss maintained that he had truthfully answered the questions asked of him. Upon further questioning by

the trial judge, the defendant ul timately acknowledg ed that he had not been tr

uthful about ho

w the marij uana was obt ained, when

he became aware of its presence in h is car, or what plans the two men had about selling it.
The trial court revoked probation, ruling as follows: [T]here is no question that [the defendant] left the impression and intended to leave the impression that it was Mr. Lewis from start to finish ... and that it was all a big surpr ise to him. And it wasn't until M r. Lewis came in a month l ater for his hearing and he testified as he did that the other5 side of the coin was rev ealed.... *** ... [H]e knew full well what was going on. He was in this venture as fully as Mr. Lewis was. And he was just unwilling ... to t

ell the truth with r

egard to his participat ion and what was going

on. And it is tragic becaus

e he has a good job, educated at ... one of the finest schools in the country, a lot of potential. But, doggone it, you've got to tell the truth. That's the bottom line and that's the first step.... It was apparent to me at the [i nitial sentencing hearing] that every

one ... was interested i n finding out what the truth was. And he was dancing around it all day. And I expressed at that time real reserv

ations about his honesty and his candor . But for all the other reasons I ... reluctantly put hi m on probation. But I'm sure not going to today. He' s going to serve this ... two-year sentence at t he penal farm.

I The defendant contends that the trial cour t failed to follow the proper procedures in revoking his probation. In particular, he complains that the trial court failed to provide adequate not ice and thus deprived the defendant of due process. See Practy v. State , 525 S.W.2d 677 (Tenn. Crim. App. 1974). The state ass erts that the trial judge's o rder allowing the defendant's initial trial c ounsel to withdraw served as written notice to the defendant. W hile conceding that the trial court did not follow the procedure set forth in Tenn. Code Ann. § 40-35-311( a), the state contends tha t the defend ant had adequa te notice of th e revocation hea ring.

Following its r

uling, the trial cour

t addressed defense counsel regarding the adequacy of the notice: Trial Court: I will state this so that the record is clear if

this does go up. ... Your client was on notice with regard to the purpose of this hearing. Counsel: Oh, I don't doubt that, Your Honor.
*** Trial Court: [The de fendan t] made o ne or two

appearances in Memphis after the September hearing involv ing the co-6 defendant for purposes of allowing him to retain separate counsel. And it's been reset a couple of times until to day. So that he has had ample time, I believ e, to prepare for today's hearing. And certainly no request was made for additional time to prepare. ... I ordered copie s of the transcripts of both hearing s so that everyone had access to the transcripts to review for today. And no objection was ever lodged at any of the previous hea rings or today with reg ard to the procedures that were being followed with regard to reopening the issue of probation and the appropriateness of probation.
The statutes governing revocation procedures pr ovide, in pertinent part, as follows:

Revocation of su spension of se ntence.--The trial judge shall possess the power, at any time within the maximum time which was dir

ected and ordered by the cour t for such suspension, after proceedin g as provided in § 40-35-311, to revoke and annul such suspension.... Tenn. Code Ann. § 40-35-310.

Procedure to revoke suspension of sentence or probation.--(a) Whenever it comes to the attention of the trial judge that any defendant who has been released upon suspension of sentence, has been g uilty of any breach of the laws of this stat e or has violated the conditions of probation, the tri al judge shall have th e power to cause to be issued under such trial judge's hand a warrant for the arre st of such defendant as in any other criminal case.... Tenn. Code Ann. § 40-35-311.

A defendant who is granted probation has a liberty interest and is entitled to due process before any revocation. Practy, 525 S.W.2d at 682. Certain procedural requirements must be met. See Gagnon v. Scarpelli , 411 U.S. 778 (1973); State v. Wade , 863 S.W.2d 406, 408 (Tenn. 1993). These include: (1) written notice of the clai med violation of probation; ( 2) disclosure to the probationer7 of the evidence against him; (3) opportunity to be hear d in person, to present witnesses, and to intro duce documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a "neutral and detached" tribunal; and (6) a written statement by the finder of fact as to the evidence r elied on and the reasons for revocation. Strict

rules of evidence do not apply; reliable hearsay may be permitted. Practy , 525 S.W.2d at 680.

The defendant asserts that he was deprived of prop er notice because the trial court failed to foll ow the procedures in Tenn. C ode Ann. § 40-35-311(a). This court has ruled that actual notice satisfies the constitu tional due process requirements for revoca tion of probation. State v. Peck , 719 S.W.2d 553, 556-57 (Tenn. Crim. App. 1986); State v. Carden , 653 S.W.2d 753, 754- 55 (Tenn. Cri m. App. 1983); Stamps v. State , 614 S.W.2d 71, 73-74 (Tenn. Crim. App. 1980). The record demonstrates that althoug h no warrant was i ssued for the arrest of the defendant, he was aware that the hearing had been scheduled and that the grounds for the hearing arose from disc repancies between his testimony and that of codefendant Lewis. Those discrepancies resulted in the withdrawal of def ense counsel. Transcripts of their testimony were made av ailable. In a writte n order provided to the de fendan t, the tri al court p ermitte d defen se counse l to withdra w, required the defendant to appear, and advised him to retain new counsel. The defendant traveled to Tennessee on tw o occasions thereafter to secur e counsel and attend proceedings. At the c onclusion of the revocation h earing, defense counsel conceded that the defendant had understood the nature of the proceedings. Fr om all of this, we must concl ude that the notice provided, while not in accord w ith the procedu res set

forth in Tenn. Co

de Ann. §

40-35-3 11(a), was suf ficient to sati sfy any due process concerns.8 II Next, the defendant contends that the trial court did not hav e grounds to revoke his probation. The state, of course, takes a contr ary position.

The trial court is authori zed to revoke probatio n upon notice of any breach of the laws of the state. Tenn. Code Ann. § 40-35-311(a). Under this statute, the authority to revoke the suspended sentence arises when the trial cou rt becomes aware of the defendant's cri minal conduct. State v. Stubblefield , 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997). A trial court may revoke pr

obation on the basis of criminal acts that a defendant committed before being plac ed on probation if the trial court was unaware of the acts at the time the sentence was imposed. Id. A judgment of revocation cannot be disturbed unless the trial court abuses its discretionary authority. State v. Williamson , 619 S.W.2d 145, 147 (Tenn. Crim. App. 1981). Here, th e trial court revok ed probation because the defendant had provided untruthful testi mony during the sentencing hearing and again at the revocatio n hearing . A false s tatemen t made un der oath with inten t to dece ive constitutes perjury an d is a breach of the laws of thi s state. Tenn. Code Ann. § 39- 16-701. Although the defendant has not been charged with perjury, the law clearly requires a defendant to tell the truth at a sentencing hear ing. While doubtful of the truthfulness of the defendant's testimony at the conclusion of the initi al sentencing hearing, the trial cour

t was uncertain that the t estimony was false untilthe codefendant Lewis testified some time later. W hen confronted, the defenda nt finally acknowledged his dis honesty. Thus, the trial c ourt was warranted in revoking probation upon the determination that the defendant had committed a criminal act by testif ying untru thfully.

The statute also authorizes revocation of a suspended sentenc e upon9 a finding that a probationer v iolated a condition of probation. Tenn. Code Ann. § 40- 35-311(a). Because conditio ns of probation are not establis hed prior to its grant, due process prin ciples would genera lly prevent a trial cou rt from revoking a suspended sentence due to conduct cons tituting a violati on of the conditions of probation which occurr ed prior to imposition of the s entence. See Stubblefield , 953 S.W.2d at 225.

However, revoking probation based upon criminal acts a defendant committed before being placed on pr obation does not implicate these due proc ess concerns because, unlike other conditions of pro bation that may be imposed, the defendant is deemed to have notice that his or her conduct must conform to the requir ements of the law from the time of the law's enactment. Id. In consequence, the trial court was also authorized to revoke the defendant's probation on the basis that he v iolated a condition of probation.

In our view, the defendant, b y lying under oath to the trial court in an apparent attempt to receive a more lenient sentence, committed bot h a breach of the laws of this state and of the conditions of probation. The tri al court did not determine conclusively that the defendant had bee n untruthful until hearing Lewis' testimony approximately one month after sentencing the defendant. In consequence, revocation of the suspended sentence was w arranted.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge10 CONCUR:

________________________________ Joseph M. Tipto n, Judge

________________________________ Thomas T. W oodall, Judge