### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs A ugus t 26 , 200 8
ST A TE OF TE N N ES SE E v

. M A R C U S N IG EL D A V IS

Direc t Appeal from the Cr iminal Cou rt f or Knox County No. 84932 Kenneth F. Irvine, Jr., Judge

No. E2007-02882-CC A-R3- CD - Filed Oct ober 23, 2008

Th e de fe nd a nt, Ma

rc us Ni ge l D a vis , a

pp e a ls f ro m th e jud gme nt o f the Kn ox Cou nty Cr imi na l Co urt, revoking his probation and reinstating his original sentenc e of six yea rs. Following our revie w, we a ff ir m th e jud gme nt o f the c ou rt

. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J. C. M C L IN , J., delivere d the opinion of the court, in which J OHN E VERET T W I L L I AMS and R O BERT W. W EDEMEYER , JJ., joined.
Mark E. Stephe ns, District Publi c De fende r and Chris t y M u rr ay, Assis tant Public Defe nder, Kn ox vil le , T e nn e sse e , f

or the app e lla nt, Ma

rc us Ni ge l D a vis

. Robert E. Cooper, Jr ., Attorney Gene ral a nd Reporter ; Jennifer L. Bledsoe, Assistant Attorney Gene ral; Randall E. Nic hols, District Attorney Gene ral; and Phi llip H. Morton, Assist ant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.
OP IN ION

In the instant ca se, the rec ord ref lects that the defe ndant was indicte d on three counts of ra pe. Ho we ve r, pu rs ua nt to a ple a a gr e e me nt, the de fe nd a nt wa s all ow e d to ple a d guil ty t o th re e c ou nts of sexua l battery, Class E f elonies, on August 22, 2007. As a r esult, he wa s sentence d to six years with one y ear to be ser ved in conf inement and the r emaining balanc e to be se rved on e nhance d probation. Subsequently, on Octobe r 22, 2007, a pr obation violation warrant was i s s ued alleging that the def

endant violated the terms of h i s p ro b ation as follows: the def endant wa s arr ested for domestic assault; the def

endant f ailed to ab i d e by his curf ew; the de fenda nt failed to abide by the elec tronic monitoring rules and r egulations; and the de fenda nt failed t o abide by the Boa rd of Probation and Parole Sex O ffe nder D irec tives. There afte r, a probation re vocation hea ring was he ld.
At the hearing, Bernice Phill ips, the defendant’s probation office r, t estified that she began supervising the def

endant in August of 2007. The defe ndant i nitially reported as instructe d, but he
was une mployed and wa s having difficulty finding hous ing. In Octobe r of 2007, the de fenda nt went-2-

to work at Kentucky Frie d Chicken. Around the same time, Off icer Phill ips had the def

endant elec tronically monitored, using a brace let and PTU box with global position satellit e (G PS) tracking capa bility. Officer

Phill ips stated that she expla ined t o t h e defe ndant the rule s and re gulations rega rding elec tronic monitoring, how to car ry the GPS tracking br ace let and b o x , and how the defe ndant would be monitored.

Offic er Phillips testi fied that on October 17, 2007, around 3:30 p.m., she r ece ived a c all from the m onitoring cente r i n Nashville, i ndicating that the def endant ha d remove d his tracking devic e. Offic er Phillips was unable to r eac h the defe ndant by phone so she dr ove over to his house around 5:00 p.m. When she rea ched the defe ndant’s house, she encounte red the defe ndant sitting i n a ca r with his wife. The de fenda nt told her that he lef t the PTU box in the house. He the n sear ched f or the box in the ca

r and in the house but could not find it. The def endant sa id he might have lef t the box in an ar ea wh er e he had bee n fishing. He then pr omised to find the box and bring it by the pr ob a tio n o ff

ic e late r i n th e e ve nin g w he n h e re po rt e d f or his se x o ff

e nd e r t re a tme nt c la ss.
Offic er Phillips testi fied that she r eturne d to th ep r o bation office around 7:00 p.m. on Oc tober 17, 2007, wher eupon, she le arne d that the def endant ha d failed to report for his sex offe nder treatment class. Offic er Phillips reca lled that she wa ited for a bout 20 minutes then drove bac k to the defe ndant’s house, however , the def endant wa s not home. Later , around 11:30 p.m., Off icer Phill ips
rec eived a

phone ca ll from the def

endant’ s wife, advising Offic er Phi llips that the pol ice ha d been called. A t 12:30 a.m., Office r Philli ps d ro v e b ac k o v er to the defendant’s house and he was not ho me . O ff

ic e r P hil lip s e xp la ine d th a t th e de fe nd a nt’ s a bs e nce w as in vio la tio n o f h is 9 :00 p. m. c urf ew. Offi cer Ph ill ips sa id that sh e la te r l e arn e d th a t th e de fe nd a nt w a s a rr e ste d f or do me sti c assault. Off

icer Phill ips noted that the defe ndant neve r re ported the a rre st to her and she did not see the def endant a gain. Offic er Phill ips te stified that the PTU box, worth $1,400, wa s never rec overe d.

On cr oss-exa mination, Office r P hillips explained that the defe ndant’s GPS tracking de vice
was c omprised of two c omponents: an ank l e b ra ce let, which wa s not removable and a PTU box which f a s te n e d a r o und the def

endant’ s waist and wa s removable . Offic er Phillips acknowledge d that the de fe nd a nt w a s h ome le ss w hen he was fi rs t r e le a se d o n p ro batio n, bu t he fo un d a pp ro pr ia te housing and empl oyment within a few months. Office r Philli ps further acknow ledged that the defe ndant had f

ai t h fu l ly reporte d and attende d his treatment cla sses up until October 17, 2007. Offic er Phillips reca lled that the def endant h ad m ad e one payment on his court costs while on probation betwe en August and O ctober

. At the conclusion of the revoc ation hearing, the court re quested the de fenda nt’s prese ntence report in order to re view the de fenda nt’s prior criminal hist ory. At this time, the de fense objected arguing that re view of the defe ndant’s criminal hist ory wa s immaterial to the court’s determination of whe ther or not the d ef

endant violated his probation. The court ove rruled the objection stating, “I think it is a

ppropriate for me to know some history and as much information as I ca n about [the defe ndant] in m aking t his decision.” After revie wing the report, the court revoke d the def endant’ s pr ob a tio n a ndor de re d h im t o s e rv e his e nti re six -y e ar se nte nc e in c on fi ne me nt wi th c re dit fo r t ime alre ady ser ved. In so doing, the c ourt stated the f ollowing:-3- As fa r as the a lle gatio n h e re tod a y, the Cou rt wi ll f indthat Mr . D a vis wa s in violation of the rules of his probation in that he . . . l o s t t h i s P T U d evice , and they
wer e unable to track him for a period of time. He a lso did mi ss curfe w on the night of

. . . O c tob e r 1 7tha ndhe mis se d c la ss that ni gh t.
[De fense Counsel] corr ectly points out that he did a number of things that he was supposed to do, though. He did get appropriate housing. He did get a job. And he wa s attending all his classes and me eting with his probation office r, exc ept the one he missed the night all this problem occur red.
Quite fran k l y , under diff ere nt circumstanc es, I think that would ca rry a tremendous a mount of weight. . . .
I disagre e with [de fense counsel] a bout the appropriateness of me looking at [Mr. Da vis’s] entire history and all the information that I have a vailable. And alth o u g h [ d e f

e n s e c o u n s e l] is c o rr e c t th a t th e r e is s o med u p li c a ti o n in th e p r ior history that’s in the prese ntence report .

. . even discounting the duplication, there a re a number of convictions. Ther e ar e fe lony convictions, there a re misdemeanor c on vic tio ns . I t c ov e rs nu me rous pag es. Th e re are a lot of mis de me a no r a ssa

ult
c on vic tio ns . T he re are so me fe lon y d ru g c a se s.
The Gene ral has pointed out on a number of occa sions [where ] probation has been r evoked in the past. That also ca ught my attention. . . . [I]t . . . shows a se rious problem of c omplying with t he terms of rele ase in that situation.

. . . . . . . [W] hile these a

re not the most serious violations, Mr. Davis, your history is part of what I have to consider. A nd you’ve be en in the system. You know how the system works. It is your obl i g at i o n to comply with all the conditions, and you faile d to do that.

I am no t go ing to c on sid e r the a lle gatio n o f the do me sti c a ssa ult . I t’ s ju st a char ge. . . . That’s not a fa ctor in my consider ation, but I do find seve ral violations
a s f ar a s th a t yo u d id n ot c omp ly w ith the c on dit ion s o f y ou r re le a se

. . . . [ T] his is a sex off ense. It’s a very serious off ense. Bec ause of

that, this syst em has be en cr eate d so people c an be tr acke d. . . .

And based on your failure t o do that and your violation of curfew , not going to your class, I’ m g o i ng to find you are in violation and revoke you and orde r that you serve this sentence.

So the rec ord is c lear , I have, as part of that consideratio n , p l ac e h eavy emphasis on what I found in this report. The history I think is significant, both the-4-

nature of the off

enses that he ’s bee n convicted of in the past and his poor re cord of compliance with various terms of r elea se.

I thin k th e c a se do e s sp e ak to the fa c t th at th is wa s sp lit c on fi ne me nt. If

it had bee n something that had been prese nted to me for a decision, I’m not sure that it w ou ld have be e n s pli t c on fi ne me nt, I’ m no t su re that it wo uldha ve be e n s pli t confine me n t in th e f

ir s t p la c e , b a s e d o n M r

. D a v is ’ s h is to r y

. H e may w ell have qualified a s something other than a Range I, Standard O ffe nder . . . .

So c on sid e ri ng a ll of thi s tog e the r, the Cou rt fi nd s, Mr . D a vis , th a t yo u’ re in violation of your probation. You did not comply wi t h it. That based on your violation, your history, a nd your inability in t he past to comply with terms of r elea se, you’re going to be revoke d and you be or dere d to s er v e y o u r sentence in the Tenne ssee De partment of Corr ection.

AN AL YSI S
On appe al, the def

endant c ontends that the trial court erre d in considering his prior c riminal his tory w he n re vo kin g his pr ob a tio n a nd re ins ta tin g his origi na l se nte nc e

. Th e de fe nd a nt s ub mit s that the re cord shows that the trial court ha d kno wl ed g e o f the de fenda nt’s prior criminal hist ory befor e imposing the original sentenc e; there fore , the court should not have r elied on the sa me history to punish the defendant and revoke his pr obation. In rebuttal, the state conce des that “a trial court should not revoke a defe ndant’s probation based on prior cr iminal acts that wer e known to the c ourt
a t th e tim e it i mpo se d th e su sp e nd e d s e nte nc e .” Ho we ve r, the state su bmi ts that th e tr ia l c ou rt did not abuse its discretion bec ause it did not solely rely on the de fenda nt’s criminal history in revoking his probation.

In Tenne ssee, the pr ocedur e for revoc ation of probation is covered in Te nnessee Code Annotated se ction 40-35-311. Th e statut e pr ov ide s a s f oll ow s:
Whenever

it comes to the attent i o n o f t he trial judg e that any defe ndant, who has been r elea sed upon suspension of sentenc e, has be en guilty of any brea ch of the laws of this State or has violated the conditions of probation, the trial judg e shall have the power to cause to be issued under such trial judg e’s ha

nd a wa rra nt for the arr est of such def endant a s in any

other criminal case

. Reg ardle ss of whether the def endant i s o n p r o b a t i o n f

o r a m i s d e m e an o r o r a f

e l o n y, o r w h e t h e r t h e w ar r an ti s i s s u e d

b y a g ener al sessions court judg e or the judge of a court of rec ord, such war rant may be executed by

a probation officer o r any peac e off

icer of the c ounty

in which the probationer

is found.
Tenn. Code Ann. § 40- 35-311(a )

. The e ssential question fac ing the trial court in a pr obation revoc ation proce eding is whether the court’s determination will subserve the ends of justice and the be st interest of both the public and-5-

the probationer. Se e Ho op e r v . S tat e , 297 S.W.2d 78, 81 (Tenn. 1956)

. T h e d ec i s i o n to revoke probation lies in the sound discretion of the trial court. State v. Leach , 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). Th e t ri al court may revoke pr obation upon finding by a pre pondera nce of the evidenc e that the defenda nt has vi olated the conditions of his or her probation. See Tenn. Code Ann. §§ 40 -3 5- 31 0, 31 1( e ); State v. Hark ins , 811 S.W.2d 79, 82 (Tenn. 1991). The judgment of the trial court to re voke probation will be upheld on ap p ea l u nless there has bee n an abuse of discre tion. Harkins , 811 S.W.2d at 82. If the trial court has exer cised “conscientious j udgment in making the decision rather than acting arbitra rily,” then there is no abuse of discretion. Leach , 914 S.W.2d at 107. Discre tion is abused only if t h e re co rd contains no substantial evidenc e to support the trial court’s conclusion that a violation ha s occur red. Harkins , 8 11 S.W .2 d a t 82 ; Sta te v . G re go ry , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997)

. Initially, we note that a trial court’s relianc e on a def endant’ s past criminal history in making a probation violation determin at i o n can be problematic. To be gin, our sentenc ing statutes contemplate a

rationale wher e the re vocation of pr obation must be predicated upon a sh o wi n g of conduct which occur s subsequent to the g rant of probation. See State v. Shannon Lee Be ckne r , No. 923, 1991 WL 43545 at *4 (Te nn. Crim. A p p

. , at Knoxvi lle, April 2, 1991). As expre ssed in our statutes, the aim of the se ntencing court is to acquire and assess all the releva nt information about the de fe nd a nt i nc lud ing his c ha ra c te r andc ri minal hi st ory p ri or to d e te rm ini ng the app ro pr ia te sentenc e and the m anner in which that sentenc e is to be satisfied. See e .g. , Tenn. Code Ann. § 40- 35-103; -210. The court’s sentencing dete rmination should encompass the unf avora ble information,
a s w e ll a s th e fa vo ra

ble , a ndfe w thin gs are a s r e le va nt as the de fe nd a nt’ s p ri or c ri min a l c on du c t. See id. There fore , if a de fenda nt’s criminal conduct was known befor e probation was grante d, there is a presumption that the def endant’ s criminal conduc t was part of the earlier sentencing equation, and the criminal conduct should not be used for a subsequent re vocation. Our decision in State v. Sh an no n Le e Be c k

ne r is o f g u id a n c e o n w h e th e r

c o n d u c t o c c u rr in g o u ts id e th e p r o b a ti o n ar y term can be considere d in making probation violation determinations. The c ourt noted the following:
This Court has previously held that a suspe nded sente nce, a lrea dy imposed, but not yet in effec t , may b e re vo ke d b e c a us e of a de fe nd a nt’ s new viola t i o n of the law

. Likewise, it has he ld that prior crim i n al ac t s , committed betwee n the time of the original o ffe nse and the date pr obation was granted, ca n result in revoc ation when they were not reve aled to the trial court at the time of the probation hearing.

Howeve r, if a trial court, with know ledge of the prior criminal act, chooses to gra nt pr ob a tio n, it s ho uldno t be al low e d to ba se a la te r r e vo c a tio n u po n th a t c ri min a l a c t. See e .g., Swope v. Musse r , 223 Kan. 133, 573 P.2d 587 (1 9 7 7 ). Under such
c ir c ums ta nc e s, ou r pro bation a ndre vo c a tio n s ta tut e s c le arl y c on te mpl a te that a probationer

is entitled to retain his liberty as long as he o r s h e ab i d es by t he conditions upon which the probation was granted, including obeying t he laws of our state. Although trial courts maintain continuing j urisdiction over fe lony probationers, see T. C

. A. § § 40-35-212, - 303 through -311, ther e is a fina lity that attaches to a tria l-6-

court’s se ntencing dete rmination, wh i ch i n cludes probation. For instance, a dir ect appea l as of right lies from such a determination in the s ame way one lies for other criminal ca ses. T.C.A. § 40-35-401( a) a nd -402(a ); T.R.A.P. 3(b ). F u rt h er, once probation is grante d, a def enda n t has a liberty inter est, which is protec ted by due proce ss befor e re vocation may oc cur, Pr ac ty v . S tat e , 52 5 S.W .2 d 67 7 (T e nn . Crim. Ap p. 19 74 ), a ndthe tr ia l c ou rt is, lik e wi se , li mit e d as to what c on du c t it c a n u se to change the manner

of the service of

a sente nce, inc luding revocation, to one more onerous than that originally imposed. T.C.A. §§ 40-35-308(b) and -311.

Bec kner , No. 923, 1991 WL43545, at *5 (interna l footnotes omitted and emphasis adde d). Acc ordingly, it is not permissible for a court to r evoke probation based on criminal acts known at the time the probation was originally grante d. Se e id. Se e als o S tat e v . B e ar d , 189 S.W.3d 730, 737 (Tenn. Crim. App. 2005)

. Additionally, as a prac tical m atter, probation is intended to serve as an opportunity for re habilitation and operates as a de terre nt to future antisocia l conduct. The ref ore, w e fail to see the eff

icac y of re voking a def

endant’ s proba t i o n b as ed on known c riminal conduct committed prior to being sentenc ed as suc h action def eats the r ehabilitative purpose for whic h pr ob a tio n w a s in iti a lly gr a nte d. W ith that sai d, we no w turn to a dd re ss w he the r the c ou rt abu se d it s discretion in re voking the defe ndant’s probation.

In the instant ca se, the re cord c ontains substantial evidence t o s u p p o rt the trial court’s findings that the defe ndant violated the c onditions of his probation by mis sing hi s curf ew, not attending his sex offe nder tre atment class, a nd losing his P TU devic e which thwa rted the state ’s ability to moni tor his movements. Furthermore , it is our vi ew that the trial court did not revoke the defe ndant’s probation on the basis of his pa st c riminal conduct. Rather, the trial court review ed the defe ndant’s past criminal history in or der to de termine whe ther the be nefic ial aspec ts of probation
wer e being se rved. The court took a t o t al i t y o f t he cir cumstance s approa ch in orde r to dec ide whether t h e defe ndant’s probation violations merited inca rce ration or a nother opportunity for
re ha bil itatio n. Af

te r d oin g s o, the c ou rt

de te rm ine d th a t th e de fe nd a nt w a s not a me na ble to continued p ro b ati on. Acc ordingly, because the trial c ourt nee d only exer cise “ conscie ntious judgment” in making its decision, we per ceive no abuse of discretion by the court in revoking the de fe nd a nt’ s p ro batio n a nd or de ri ng him to se rv e his origi na l si x- ye ar s e nte nc e in c on fi ne me nt w ith
cre dit for time alre ady ser ved.

As a n a sid e , th e de fe nd a nt a rg ue s th a t th e tr ia l c ou rt e rr e d b y o rd e ri ng him to s e rv e his original six year

sentenc e in conf

inement upon re voking his probation. Howeve r, our sentencing statut e c le arl y s ta te s a s f

oll ow s:
If the trial judge should find that the def endant ha s violated the conditions of pr ob a tio n a ndsu sp e ns ion by a pr e po nd e ranc e of

the e vid e nc e , the tria l ju dg e sh a ll have the ri g h t b y order

duly entere d upon the minutes of the court, to revoke the probation and suspe nsion of sentenc e and c ause the defe ndant to commence the
exec ution of the judgment as originally enter ed . . . .
Tenn. Code Ann. § 40- 35-311(e ). The de fenda nt is without relief on this iss ue.-7- CO NC LU SION

Ba se d u po n th e fo re go i n g a uth oriti e s a ndre a so nin g, we a ff ir m th e jud gme nt o f the tr ia l c ou rt

.

___________________________________ J.C. McLIN, JUDG E