### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A pril 10, 20 02

STATE OF TENNESSEE v. EDWARD LUCAS

Direct Appeal from the Circuit Court for Montgomery County Nos. 34574 and 40046B John H. Gasaway, III, Judge

No. M2001-01989-CCA-R3-CD - Filed July 18, 2002

The appella

nt, Edward Lucas, was convicte d in the Mon tgomery Co

unty Circu

it Court of two count s of selling cocaine and one count of possession of marijuana with the intent to sell. The trial court imposed an effective

sentence of six years incarceration in the Tennessee Depa rtment of Correction, sixty days of which were to be served in confinement with the remainder to be served on probation. Subs equently, the trial court found the appellant guilty of violating his probation and ordered th e appellant to serve his sente nce in co nfineme

nt. The appella

nt raisesthe following issues on appea l: ( 1) whethe r the allegation set forth in the violation of probation warrant states a violation of the conditions of probation; (2) whether the allegation set fort h in the viol ation of probation warrant complies with due process requirements of the United States and Tennessee Constitutions; and (3) whether the evidence is sufficient to support the probation revocation. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.
Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t is Affir med.

N ORMA M C G EE O GLE , J., deliver ed the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined.

Roger E. N

ell, Clar ksville, T ennesse e, for the appell ant, Edwa rd Luca s.

Paul G. Summers , Attorne y Gener al and Re porter; C hristine M . Lapps, A ssistant A ttorney G eneral ; John W. Carney, Jr., District Attorney General; and C. Dan Brollier, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

I. Factua

l Background At the beginning of the appellant’s probation revocation hearing, the trial court summarized the events leading to the hearing in the following manner:

In case number 34574, [the appellant] was convicted upon his plea of guilty to sale of coc ai ne as all eged in Count one of the indic tment,-2- which is a Class C Felony and he was also convicted upon his plea of guilty to Count three to the sale of cocaine , Class C Fel ony. First offense, count one was alleged to have occurred on A pril 19, 1994, and Count [three] was alleged to hav e occurre d on April 21, 1994. He was sentenced to a term of three yea rs on eac h count. The sentences were to be served consecutively.

In case number 40046, [the appellant] entere d a plea of guilty on January 14, 1999, . . . to t he sale of over a half ounce of mar ijuana which is a Class E Felony. He was sentenced to a term of one year. This sentence was probated. . . . But he was later accused of violating these probated sentences. . . .

The State proceeded on a warrant which alleg ed that the appellant violated the conditions of his probation by violating rule number one, which rule states
, “I will obey the laws of the United States as well as any municipal ordinances.” Specifically, the wa rr ant pr ovided tha

t, “[o]n or about 2/7/00 offender was arrested on Federal Charges of Distribution of Cocaine Base.”
At the probation revocation hearing, Lewis Spencer was the only witness to testify for the State . Spence

r testified that, wh

ile working with the Drug Enforcement Agency (DEA) and the Clarksville Poli c e Depar tment, he purchas ed one ou

nce of c rack co caine f

rom the a ppellant

. Spence r testifie d that the

purchas e took pla

ce on De cember

14, 1999, a

t approximately 2:3 0 p.m. The salewas monitored by DEA and the Clarksville Police through a body wire which was placed on him.

The trial c ourt fo und that the evidence presented by the State proved, by a preponderance

of the evidence, that the appellant had violated his probation. Acc ordingly, the trial court revoked the appellant’s probation and ordered him to serve his sentence in confinement. The appella nt now app eals.
II. Analysis

A. Probation Revocation Warrant In his fir st

two issues on appeal, the appellant contests the adequacy of the warrant accusing him of violating his probation. The appellant argues that the warrant (1) failed to state a violation of the te

rms of his p

robation, an d (2) failed to adequately notify him of the violation charged, in violatio n of his rig ht to due process. In addressing the appellant’s first complaint, we notethat the probation revocation warrant alleged that the a p pellant violated

the condi

tion of his probation which mandates that the appellant “will obey the laws of the United States as well as any municipal ordinances.” Specifically, the warrant pr ovided that, ‘[o]n or

about 2/7/00 offender was arrested on Federal Charges of Distribution of Cocaine Base.” The appe llantmoved to dismiss the warrant ar guing th at the mer

e stateme nt that the

appella nt had bee

n arres ted does n ot suffic iently allege a violation of prob ation, i.e., being arrested is not a violation. In response, the trial court stated:-3- [The appellant] was correct when he said that the literal language is

a mere recitation that [the appellant] was ar rested which in an d o f itself, is just an allegation. But [the State] is right that if you look at the co mpl ete sentence, which was on or about Februar y 7 th , 2000, offender was arrested

on Fe deral charges of distribution of cocaine base. So–if it

has just said that he was arrested of possessing cocaine, I would gra

nt your mot

i on and t hrow it out, but because it says “a rrested for the d istributio n of coca

ine[,”] it puts him on

notic e o f what he is accused of, distributing cocaine. We agree with the trial court. We recogniz e that the distribution of the cocaine is the actual violation of probation, not the arrest itself. However, the warrant essentially alleges noncompliance with the appellant’s probatio nary ter ms by his distribution of cocaine. See State v. Walter Lee Ellison, Jr.
, No. 01C01-9708-CR-00361, 1998 Tenn. Crim. App. LEXIS 575, at *6 (Nashville, May 29, 1998). Accordingly, the warrant adequately stated a probation violation.

The United States Supreme Court has observed

that “[p]robationers have an obvious intere st in retaining their conditional liberty, and the State also has an interest in assuring that revocation procee dings are based on accura te findings of fact and, where appropriate, the informed exerci se of discretion.” Black v. Romano , 471 U.S. 606, 611, 105 S. Ct. 2254, 2257 (1985); see also Statev. Jackie D. Ozier , No. W199 9-01478- CCA-R3-CD , 2000 Ten n. Crim. App. LEXIS 294, at *6 (Jackson, April 4, 2000) (stating “a defe ndant who

is grante d probati on has a li bertyinterest and is entitled t

o due proces s before any revocation”). To ensur e the “minimum requirements of due process ” necessary prior

to a probation revocation hearing, the following

require ments must b e met: “(a) written notice of

the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] par olee of e vidence against h im; (c) opportun ity to be heard in person and to present witnesses and documentary evidence; (d) the right

to confr ont and cr oss-exa mine adve

rse witnesse s (unless the hearing

office r specif ically finds g ood ca use for not allowing confrontation); (e) a ‘neutral and detache d’ hearing body . . . ; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] par ole.” Gagnon v. Scarpel li , 4 11 U.S. 778, 786, 93 S. Ct. 1756, 1761-62 (1973) (quoting Morrissey v. Brewer , 408 U.S. 471, 489, 92 S. Ct. 2593, 2604 (1972)).

In re gard to p robation revocations, Tenn. Code Ann. § 40-35-311(e) (Supp. 2001) provides : If

the t rial judge should find that the [appellant] has violated the conditions of probation and suspension by a pr ep onderance of the evidence, the trial

judge sh all have t he right . . . to revoke the probation and suspension of sentence and cause the [a p pella nt] to commence the execution of the judgment as originally entered . . . .1 The recor d before us cl earl y refl ects that the a ppell ant was st il l on pr obati on at t he ti me of the vi olation.

-4- Generally, if a trial court finds by a preponderance of the evidence that an appellant has violated the conditions of his probation, the trial court may thereupon revoke

that appellant’s probation. Tenn. Code Ann. § 40-35-311(e). Such revocation “rest[s] in the sound discretion of the trial judge.” State

v. Leach , 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). Thus, thi s court wi ll not disturb the judgmentof the trial court unless there has been an abuse of that discr etion. Id. at 107. In order to find an abuse of discretion, the record mus t contain no substantial evidence to support the trial court’s determination that the appellant has violated a condition of his probation. State v. Harkins
, 811 S.W.2d 79, 82 (Tenn. 1991).

In addressing the appellant’s second complaint, we conclude that the language of the warrant sufficiently apprised the appellant of the charges against him, thereby complying with the require ments of due process. Based upon t he warr ant, the a ppellant was awa re that he neede d to defend himself against allegations that he delivered cocaine in violation of

his proba tion, the s ame activity underlying feder

al char ges. The warran t alleged the date of the ar rest and the spec ific number of the co nditi on of proba tion the a ppellant violated . We conclude tha t this langu age is sufficient to notify the appellant of the pending charges in the probation revocation proceeding. See Statev. Richar

d McAdam s , No. 01C01 -9604-CC- 00134, 199 7 Tenn. Cr im. App. LEXIS 971, at *7 (Nashville, September 30, 1997). This issue is without merit.
B. Sufficiency of the Evidence The appella

nt also contends that

the evidence produced against him at the probation revocation hearing was insufficient to warrant the revoc ation of his probation. S pecific all y, the appellant complain s that “the

State did n ot offer

evidenc e to suggest that

appellant was on probation at the time of the alleged drug transaction. Neither did the State offe r evidenceas to the particular term of probation that appellant was alleged to have violated.”

Prior to the calling of wi tnesses, the trial court specifically noted the case number, the nature of the appella

nt’s conviction, and the sentences imposed, concluding that the appellant

was serving probated sentences, the conditions of which he was c urrently accused

of violating. In
essence, the trial court was taking judicial notice of the rec ord b efore it in connection with the appe llant’s case. 1 Tenn. R. E vid. 201(b )(2); see also Pruitt v. Sta te , 460 S.W.2d 385, 395 (Tenn

. Crim. App. 1970). Dur ing the hearing , the appellant did not dispute the accuracy of the court’s recitation regarding the conviction and will not now be allowed to do so before this court. See State v. Nunley , 22 S.W.3d 282, 288 (Tenn. Crim. App. 1999). Additionally, the appellant’s complaint that the State failed to “offer evidence a s to the particular [condition] of probation that appellant was allegedto have violated” is simply not plausible . The pro

bation re vocation warran t clearl y refle cts that the appellant failed to comply with the laws of the United States and the State o f Tennessee during the term of his probationary sentence. Moreover, even without the State explicitly providing the probatio n agree

ment to the

court, it i s axiomati c that “c omplianc e with our state law s is a n-5-

automatic condition of

a suspended sentence.” State v. Stu bblefield , 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997); see also Tenn. Code Ann. § 40-35-311(a).

As we earlier noted, a probation violation need only be proven by a preponderanc e of t he evide nce. At th

e revoc ation hea

ring, Spen

cer tes tified tha

t the appe llant sold h

im cocaine

. The trial court accredited this testimony, finding that the appellant was on probation at the time he “engaged in an illegal transaction of Schedule IIsubstanc e.” This i ssue is like wise witho

ut merit.

III. Conclusion Based upon the foregoing, we affirm the judgment of the trial cour t.

___________________________________ NORMA McGEE OGLE, JUDGE