1 We note that the only t ime the tr ial court may suspend the sent ence of an i ndivi dual c onvict ed of a vi olation of § 55- 10- 616 is upo n the findin g of an em erge ncy . Ten n. Co de A nn. § 55- 10- 616 (c). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on

Briefs M arch 19, 2002

LESTER JOHNSON v. S TATE OF TENNES SEE

Appeal from the Criminal Court for Sevier County No. 2000-404 O. Duane Slone, Judge

No. E2 001-0 0019- CCA-R3 -PC July 11, 2002

The petitione

r, Le ster Johnso n, appea

ls th e trial court's denial of his petition for post-conviction relief. In this appeal, the petitioner contends (1) that he was denied the effective as s istance of counsel and (2) that the trial judge who presided over the revocation hearing wa s notimpartial. The judgment is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID H. W ELLES and R OBERT W. W EDEMEYER , JJ., joined.

Julie Waroway, Sevier

ville, Tennessee (at trial), and Robert M. Burts, Rutledg e, Tennessee (on appeal), for the appellant, L ester Johnson.

Paul G. Summers, Attorne y General & Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; and Charles E. Atchley , Jr., Assistant District Attorney General, f or the appellee, State of Tennessee.

OPINION

On September 7, 1999, the petitioner, Lester Johnson, who had been previously declared a Motor Vehicle Habitual Offender, entered a plea of guilt to driving in violation of Tennessee Code Annotated§ 55-10-616, a Class E felony. The trial judge imposed a sentence of two y ears and, after

a 30-day jail term, granted supervised probation. 1 Officers claimed that they found marijuana in the petit ioner 's shoe whe

n he repo rted to ja il to beg in service of

his sentence. The petitioner was charg ed withintroduc ing con

traband into a pen al facil

ity . A probation violation warrant based upon the contraband

charge and a failed drug scr een issued in March 2000. At the probation revocation hearin g, the petiti oner, who had ente red a not guilty plea tothe contraband charge, c onceded that he had violated the terms of his probation by f ailing the drug screen. The trial judge re voked the-2-

petitioner's probation. The petitioner did not appeal the revocation order, but instead filed a p ostconviction petit ion cl aimi ng that the Ho norab le Rex Henry Ogle, the tr ial j udge who accept ed his plea of guilt in 1999 and revoked his probation, was not impartial. The petitioner also complained that he had been deprived the effec tive assistance of counsel at his probation revocation hearing

. Approximat

ely one yea r later, the Honorable O. Duane Slone conducte d an evidentiary hearing on the post-conviction petition. The petitione r testified that Judge Ogle, who had been a high school cl assmate, made impr oper sta tements a t the rev ocation h

earing . He cla

imed that b ecause he had hired and then terminated Judge Ogle a s his attorney some y ears earlier while Judge Ogle was still engag ed in the p

ractice of law, he was not

impartia l. The pe

titioner a ls o test ified tha

t his defense counsel a t the rev ocation h

earing , Dennis Campbell, had been ine ffectiv e for several r easons. According to the peti tioner, Attorney Campbell met with him for only 15 minutes prior to the hearin g, failedto adequa

tely investig ate the c ase, and

incorrectly

predict ed that the trial ju dge wou ld "give[h im] a slap on the wrist, maybe g ive [him] a verbal reprimand, and give [him] some more stringent or stri ct proba tion rules to abide by." The petitioner admitted that he had "a dirty urine sample" while on probation but had informed his counsel that he did not intend to plead guilty to the ch ar ge of in tr od uc in g c on tr ab an d i nt o a pe na l f ac il it y.

It was st ipul ated t hat th e peti tion er's wife, if present at the hearing, would ha ve testified that she had unsuc cessfully a

ttempted t o contac t defens e counse

l to arrange a meeting

with the petitioner.

Defens e counsel, an assistant public defender at the time he represented the petitioner at the revocation hearing, testified that he had been involved

in numerous probation violation cases since being lic ensed as an attorney in 1989. He recalled that the petitioner, who had never be fore complainedabout the lack of impartiality on the part of the trial judge, admitted failing a drug scree n, which was required at regula r interva ls by the termsof his pro

bation. D efense

counsel stated that he had explor

ed an ag reemen t with the s tate, whi ch might have re solved bot

h the probation violation charge and the introduction of contraband charg e, and denied having informed the petitioner that he would receive only

"a slap on the wrist." Defense counsel acknowledged that he anticipated that the petitioner would likely rece

ive jail time for

a period of months r

ather th an a pris on term a s a resul t of the viola tion. He st

ated tha t the petit

ioner ha d never e xpressed a

ny d issatis fac tion with hi s performance prior to filing the post-conviction petition.

At the conclusion of the post-conviction hearing, Judge Slone determined that the petitioner had, in fact, admitted a violation of the term of his proba tion w hich prohibited the use of illegal drugs. Judge Slone also concluded that the violation of probation was based entirely upon the failed drug s creen and determined that defense counsel's strategy

to seek mercy

by display

ing hon est y throu gh the candid acknowledgment of the def enda nt' s having failed a drug scre en was a sound tactical decision. Judge Slone found that the petitioner, who had appeared before Judge Ogle at other times on sever

al other charg es, was treated fairly under all of the circumstances. He determined that the petitioner had not establishedany bias o r prej udice on th e part o f Jud ge Ogle and denied relief based upon a failure to meet the burden of proof.-3- I The state ass erts that

because the petiti oner fa

iled to fil e a timely

notice of appeal, the appeal should be dismissed. Rule 4(a) of the Ten nessee R ules o f Appella

te Proce dure pro vides tha t a notice of a ppe al s hou ld be f il ed w it hi n 30 days aft er t he e nt ry of ju dgm ent . In criminal cases, a notice of appeal is not jurisdictional and may , according to the r ule, "be waived in the interest of justice." Tenn. R. App. P. 4(a).

The trial court conducted the hearing and render

ed its dec ision on Ma

rch 19, 2 001. While the judgmen

t was dated March 1 9, 2001, it w as not ent e red unt il March 29, 2001. The record establishes that the petitioner had prepared a notice of a ppeal dated March 19, 2001, w hic h was actually filed one day late

r, just after the hearing but some nine

day s before

the entr y of judgmen t. The petitione

r then fil ed a doc ument sty led "Ame nded Petit

ion to Appe al as of Ri g ht Notice of Review" on June 25, 2001. The state attacks the June 25 filing as untimely

.

Ini ti al ly, we note that the notice of appeal in this case was filed too early r

ather than too late. A prematu

rely filed noti ce of ap

peal doe s not bar a

n appea l to this cou

rt. Tenne ssee Ru l e of Appellat e Procedu re 4 prov ides that a premature notice should "be treated a s filed after the entry of the judgmen

t . . . and o n the day

thereof ." Tenn . R. App. P. 4(d). Thus, the notice of appeal filed in this case must be treated as timely filed. Moreover, i n State v. Scales , 767 S.W.2d 157, 158 (T enn. 1989), our supre

me court determined that in

regar d to the ap

plication of Rule 4, postconvicti on proce edings a

re criminal in nat

ure, and notice of appeal may

be waive d "in the

interest of justice" as in other criminal ca ses. Thus, e ven if the notice had been untimely filed, this court would have likely consider ed the merits of the appeal in the interest of justice.

II The petitioner argue s that J udge Ogle was not impartial. At the revoc ation hearing, the assistantdistrict a

ttorney gener al announ ced that the petiti o ne r had one "dirty drug screen [while]

on his p robat ion. " After the pe titi oner ad mitt ed fail ing a drug screen, the trial court ruled asfollows:

Mr. Johnson, based upon the fact that you' ve previously bee n violated by this and other courts on numerous occasions; that y ou continue to pick up charges while on probation and you continue to take dru gs and show up on dirty drug screens, the [c]ourt's going to order the sentence e xecuted.

Mr. Johnson has been given every opportunity by

every judg e on the face of the earth to stop his drug problem; to stay employed; to do what

he says he w as going
to do, and Mr . Johnson, y ou've n ot done it. Every

time I turn around, y

ou're setting in court here on something.

Now, I like you, I don't have a thing against y ou, but there's nothing else I can do for you. And so y

ou' re go ing to jail and you' ll serve this sentence until you a re released.-4-

At the conclusion of the imposition of sentence, the petitione r asserted t hat "the re's a question" about the introduction of contraband charge

. The pe titioner explained, "I didn't plead guilty to th at; I pled guilty

to this dirty urine test." He a rgued that the contraband "w as not found [until] twenty-six hours after [he] was [incarcer ated]." After the statement, Judge Ogle c onfirmed that the sentence, as originally imposed, should be served by the petitioner.

Hadthe petitioner appealed the revocation order , that would have been an appropriate issue
to have presented to this court. He did not. That the petitioner did not appeal the orde r of revocation operates as a

waiver of this issue in a post-conviction proceeding. See Tenn. Code Ann. § 40-30- 206(g); House

v. State
, 911 S .W.2 d 705, 714 (T enn. 1 995). Furth er, at t he pos t-con victi on hea ring, Judge Slone found that the p etitioner had bee n unable to establish any bias on the par t of Judge Ogle. The findings of fact made by the post-conviction court are conclusive on appeal unless the evidence preponderates otherwis e. Butler v . State , 789 S.W.2d 898, 899 (Tenn. 1990). Also, questions of credibi lity

of witnes ses and th

e weight and val

ue of the ir testimony should be

resolved by the trie

r
o f f act. Black v . State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Disqualification is not required merely bec ause a trial judge presided in prior proceedings involving the same litigant. See King v. State , 216 Tenn. 215, 391 S.W.2d 637, 642 (Tenn. 1965). In our view, the evidence does
notpreponderate against Judge Slone 's finding that the petitioner failed to establish a lack of impartiality on the part of Judge O gle.

III The state argues that the Post-Conviction Procedure Act does not a

fford a remedy to those deprived of the effective assistance of counsel at a probation revocation hearing

. See Tenn. Code Ann. § 40-30-201. The state points out that the act allowing post-conviction relief is limited and that relief "shall be granted [only ] when the conviction or sentenc e is void or voidable because of the abridgement

of any rig ht guaranteed by

the Constitution of Tennessee or the Constitution of the United States." Tenn. Code Ann. § 40-30-2 03. The state contends that a revocation of probation is not "a c onviction

or sente nce" w ithin the me aning o f the stat ute and submits that when probation is granted, a specific sentenc e has been imposed but execution of all or part of the sentence has been suspended. A revocation proceeding, the state a sserts, simply affords the tria l court the oppor tunity to require execution of a sentence already imposed.

In Massey

v. State , 929 S.W.2d 399 (Tenn. Crim. App. 19 9 6), this court considered the merits of a post-conviction attack based upon allegations of the ineffective assistance of counsel and other constitutional errors committed at a probat ion revoc ation pro ceeding . As the sta te concedes, there are als o severa

l unrepor ted opinio ns from thi s court wh ich consi dered po st-convi ction cla ims basedupon alleged constitutional errors at proba tion revo cation pr

oceedings. See State v. Samuel K. Robinson , No. M1999-00559-CCA-MR3-PC (Tenn. Crim. App., at Nashville, July 25, 2001); RichardJanek v. Charles Jones, Warden, et al. , No. 01C01-9609-CC-00390 (Tenn. Crim. App., at Nashville, Sept. 18, 1997); Richard K izer v. Sta te , No. 01C01-9503-CC-00071 (Tenn. Crim. App.,2 In Bra tton v. S tate , 477 S.W.2d 754, 756 (Tenn. Crim. App. 1971), thi s court determi ned that

all eged consti tut ional vi ola ti ons ari si ng f rom a parole revocation hearing were not cognizable i n a post-convicti on proceeding, holding that "it

is incontes table that the action of the State B oard of Pr oba tion an d P arole s in revo king a p risone r's paro le has noth ing what ever to do wi th h is orig inal convi cti on and s ente nce. " See also Scal f v. State , No. 899 (Ten n. Cri m. Ap p., at Kn oxville, J uly 11 , 199 0) (p arole board's ruli ngs are not wit hin the contemplati on of "judgment and sent ence" langua ge of p ost-co nviction statute.

-5- at Nashville, Dec. 6, 1995)

. 2 None of these cases, however, addr essedthe question of

whether an attack under the Post-Conviction Procedure Act was authorized.

The state also submits that because the petitioner was not entitled und er th e Sixt h Amendment

to the United States Constitution to counsel at the probation revocation proceeding, he could not have been deprived of the effective assistance of counsel. See Gagnon v. Scarp elli , 411 U.S. 778, 789- 90 (1973) . For co mparison , the state points out th at inpost-con viction pr oceedings, where there is a statutory but not constitutional rig ht to counsel, there is no right tothe effective assistance of

counsel. See Coleman v. Thompson , 501 U.S. 7 22, 752 (1 991); House v. State , 911 S.W.2d at 712.

In Gagnon

v. Scarp elli , the United States Supreme Court reaffirmed its holding in Morrissey

v. Brewer , 408 U.S. 4 71 (1972) , and ruled that due processrequired preliminary (or probable cause) and fina l (mor e comprehensive such as to allow for a dec ision) revocation hearings. Morrissey providedthat at

the preliminary he aring, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf,

a condition al righ

t to confr ont adver se witnes s e s, an independent decision maker, and a written reportof the hearing. Morrisey 408 U.S. at 487. The probationer or parolee is entitled to similar benefit s at the final hearing. Id. at 489 . Uti lizi ng Morrissey as the basis of the decision, the Supre me Courtin Gagnon

determined that

"the de cision as to th e n ee d f or co un se l m us t b e m ad e o n a ca se -b ycase basis and the exercise of a sound disc

retion by the state authority charg ed with the

responsi bility for administ ering the probat ion and parol e system." Gagnon , 411 U.S. at 790. The Court held that while "the presence and participation of counsel will probably be both undesirable and constituti onally

unnece ssary

in most rev ocation h

earing s, there will remain certain cases in which fundamental fairne ss–the tou ch stone o f due pro cess–will require that the st ate provide at its expen se counsel for indigent probation ers or parolees." Id. Finally , the Cour t stated th at "con siderab le discretion must be all owed the respo nsible agency in makin g the decision ." Id.

In this instance, the petitioner admitted t hat he had failed a drug screen, thereby acknowledginga violation of the terms of his probation precluding the use of illeg al drugs. He has been unable to

establish any particular def

iciency on the par

t of his tri al counse

l and, mo r e im po rt an tl y, has been unable to establish how any failure in performance adver sely affected the results of the revocation heari ng. Because th e petitioner denie d taking marijuan a into the

jail, argua bly t he more serious of the two charge s, it appears that the trial court may have had a

basi s under the Gagnon v. Scarpe lli ra tionale to appoint counsel. Because the petitioner rec eived the effectiveassistance of counsel and the state prevails on the merits of the claim, it is unnecessary for-6-

this court to determine whether the petitioner was statutorily barred f rom making a post-conviction claim.

Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE