IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 6, 2015

STATE OF TENNESSEE v. JASPER CLAYTON

Appeal from the Criminal Court for Shelby County

No. 09-07601 Paula Skahan, Judge

No. W2014-00517-CCA-R3-CD - Filed February 5, 2015

Appellant, Jasper Clayton, pleaded guilty to facilitation of aggravated robbery. The trial

court granted him judicial diversion for a three-year period. The State petitioned the court

to revoke appellant’s judicial diversion, and after a hearing, the trial court granted the State’s

request, revoking appellant’s judicial diversion and sentencing him to three years’

incarceration. On appeal, appellant contends that the State failed to comply with due process

notice requirements and that the trial court abused its discretion by revoking his diversion.

Following our review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which ALAN E. GLENN and

CAMILLE R. MCMULLEN, JJ., joined.

Edward Perry Bronston, Memphis, Tennessee, for the appellant, Jasper Clayton.

Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy

P. Weirich, District Attorney General; and Pamela Stark, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Facts

The sparse record before this court indicates that appellant was indicted by a Shelby

County grand jury for facilitation of aggravated robbery. He pleaded guilty to the offense

on February 23, 2010, and the trial court granted his application for judicial diversion. The

diversionary period was for three years, to end on February 25, 2013.
Included in the appellate record, inter alia, are three documents from the district

attorney general’s office styled “Petition for Revocation of Suspension of Sentence,” one

order dismissing a petition to terminate judicial diversion, and one order terminating

diversion. The first petition in the record was filed on October 5, 2011, and the basis listed

for termination was that appellant had been arrested on June 2, 2011, for firearm and drug

charges. The court’s order dismissing the first petition to terminate judicial diversion was

entered on December 2, 2011. The second petition to terminate judicial diversion was filed

on February 25, 2013, and alleged that appellant owed $7,694.50 in court costs and $395 in

probation fees. The second petition also alleged that appellant had been arrested on January

13, 2011, for an aggravated burglary that occurred on November 20, 2010. The second

petition set forth that appellant’sfingerprints had been found on an exterior bedroom window

at the burglarized residence. The final petition to terminate judicial diversion was filed on

February 12, 2014, and alleged that appellant was cited for misdemeanor possession of a

controlled substance on April 20, 2012, that he failed to appear in General Sessions Court

on June 18, 2012, and that he resisted official detention on July 1, 2013, when officers

attempted to arrest him on the basis of several warrants. Included in the record as exhibits

to the revocation hearing are certified judgment sheets for resisting official detention and

possession of a controlled substance. The trial court treated the final petition as an

amendment to the February 25, 2013 petition. See State v. Shaffer, 45 S.W.3d 553, 555-56

(Tenn. 2001) (holding that a trial court did not abuse its discretion when it revoked a

defendant’s probation based on allegations in an amended warrant).

The trial court held a hearing on the State’s petitions to terminate diversion on

February 12 and 13, 2014. At the hearing, counsel for appellant argued that appellant did not

have notice of the allegations against him because the revocation warrant only listed the

arrest on January 13, 2011, for aggravated burglary but that the general sessions court had

dismissed the aggravated burglary case for lack of probable cause.

Andrew Bradford, appellant’s probation officer, testified at the hearing that appellant

had not complied with the terms of his supervised release. Mr. Bradford said that he initially

filed a petition to revoke appellant’s judicial diversion in 2011 for an aggravated burglary

that allegedly occurred on January 13, 2010. Mr. Bradford testified that a warrant was

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issued in 2011 with regard to that violation. Mr. Bradford stated that he filed another petition

on January 21, 2011. The trial court at that point in Mr. Bradford’s testimony stated that it

had dismissed that petition. Mr. Bradford said that he filed yet another petition on July 12,

2011, alleging that appellant had been arrested for possession of a firearm as a dangerous

The aggravated burglary that Mr. Bradford stated occurred on January 13, 2010, is listed in other 1

documents as having occurred on November 20, 2010, for which appellant was arrested on January 13, 2011.

We note that the petitions filed by Mr. Bradford are not in the appellate record.

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felon, possession of marijuana with intent to sell, and possession of drug paraphernalia. No

warrant was issued in connection with the July 12 petition. Mr. Bradford subsequently filed

a petition on August 21, 2012, alleging that appellant failed to report as ordered. Mr.

Bradford testified that the last warrant in his file was issued February 25, 2013, and included

allegations regarding the aggravated burglary.

On cross-examination, Mr. Bradford stated that appellant was already in custody when

Mr. Bradford applied for the warrant that issued on February 25, 2013. Mr. Bradford

testified that he filed for warrants twice, once on January 21, 2011, and again on February

25, 2013. He assumed that the first one “was lost.” He stated that the purpose of the

February 2013 warrant was to keep appellant in custody. Through additional questioning by

the assistant district attorney general and the court, Mr. Bradford testified that appellant

received misdemeanor citations in 2012.

The trial court ultimately terminated appellant’sjudicial diversion, finding that he had

“clearly been convicted of other offenses that occurred during the original three[-]year term

of diversion.” The court entered a written order terminating diversion on February 13, 2014.

It is from this order that appellant now appeals.

II. Analysis

“Judicial diversion is legislative largess whereby a defendant adjudicated guilty may,

upon successful completion of a diversion program, receive an expungement from all

‘official records’ any recordation relating to ‘arrest, indictment or information, trial, finding

of guilty, and dismissal and discharge’ pursuant to the diversion statute.” State v. Schindler,

986 S.W.2d 209, 211 (Tenn. 1999) (quoting Tenn. Code. Ann. § 40-35-313(b)). The State

may seek to revoke a defendant’s judicial diversion if the defendant violates the terms of his

or her probation. See Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App. 2002). “[T]he

trial court should follow the same procedures as those used for ordinary probation

revocations” when addressing allegations that a defendant violated the terms of judicial

diversion. Id. “If the trial court determines by a preponderance of the evidence that the

defendant has violated probation,” the trial court may terminate judicial diversion and

proceed to sentence the defendant. See State v. Johnson, 15 S.W.3d 515, 519 (Tenn. Crim.

App. 1999).

A. Due Process

Appellant contends that he was not afforded constitutional notice of the allegations

against him because (1) the State filed multiple petitions; (2) one of the petitions included

allegations of a new arrest that had already been dismissed by the trial court on December

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2, 2011; and (3) he did not receive notice of the allegations until the day of the revocation

hearing. In addition, he also claims that the State did not disclose adverse evidence, did not

provide an opportunity for counsel to cross-examine witnesses, and attempted to rely on

allegations not included in any petition. Finally, he contends that the trial court did not issue

a written statement regarding its ruling.

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In matters of probation revocation, defendants are not entitled to “‘the full panoply

of procedural safeguards associated with criminal trial’” but nonetheless “must be afforded

due process in the revocation proceeding.” State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993)

(quoting Black v. Romano, 471 U.S. 606, 613 (1985)). The United States Supreme Court set

forth the minimum due processrequirementsfor probation revocation proceedingsin Gagnon

v. Scarpelli and include (1) written notice of the allegations; (2) disclosure of adverse

evidence; (3) an opportunity to be heard and present witnesses; (4) a conditional opportunity

to cross-examine witnesses; (5) “an independent decisionmaker”; and (6) a written statement

from the decision maker regarding evidence relied upon and reasons for revocation. 411

U.S. 778, 786 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).

In this case, appellant received written notice of the allegations against him in the

form of the petitions to revoke his judicial diversion and in the warrant that included his

arrest for aggravated burglary. Because one of the petitions was filed on the day of the

hearing, the trial court indicated that it would give appellant more time to prepare his defense

if necessary, and the assistant district attorney general repeatedly stated that she would not

oppose a resetting of the hearing to give counsel time to prepare against the additional

allegations.

Moreover, it is clear from the record that the State provided to appellant the certified

judgments that served as adverse evidence against him and that counsel had an opportunity

to cross-examine the only witness present at the hearing. Regarding appellant’s contention

that the State attempted to rely on allegations not included in any of the petitions, the

transcript of the hearing shows that the parties discussed the fact that appellant had been

indicted for aggravated robbery. However, the assistant district attorney general indicated

that the State was not including this new charge as a violation of appellant’s judicial

diversion specifically because the new charge had not been included in any petition, and the

trial court explicitly stated that it would not consider that new charge. In addition, while

appellant maintains that the State included in its February 25, 2013 petition an allegation that

had been disposed of by the court on December 2, 2011, the record belies this contention.

Appellant included this last argument in the section of his brief addressing whether the trial court 2

abused its discretion in revoking his diversion, but in our view it is more appropriately addressed in

connection with his due process argument. 

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The petition disposed of by the trial court on December 2, 2011, included an allegation that

appellant had been arrested for drug and firearm charges, and the State did not include this

arrest in its subsequent petitions nor did the trial court rely on that arrest in revoking

appellant’s judicial diversion.

Finally, the trial court clearly stated its reasons for revoking appellant’s judicial

diversion in its oral ruling, which it incorporated into its written order and which were

recorded in the hearing transcript. This was sufficient to satisfy the written findings

requirement. See State v. Leiderman, 86 S.W.3d 584, 589-91 (Tenn. Crim. App. 2002)

(holding that oral findings recorded in a transcript satisfied the “written statement” due

process requirement in probation revocation matters). Therefore, we conclude that appellant

was afforded due process.

B. Revocation of Judicial Diversion

Appellant contends that the trial court abused its discretion in revoking appellant’s

judicial diversion because the trial court did not conduct a hearing within a reasonable time

and because the trial court’s ruling was ambiguous. The State respondsthat appellant waived

his argument regarding the time frame because it was not addressed in the trial court and that

the trial court’s ruling was not ambiguous. We agree with the State.

We review a trial court’s revocation of judicial diversion for abuse of discretion.

Johnson, 15 S.W.3d at 517-18. An abuse of discretion will be found only if there is “no

substantial evidence to support the conclusion of the trial judge.” State v. Harkins, 811

S.W.2d 79, 82 (Tenn. 1991) (citations omitted). “The proof of a probation violation need not

be established beyond a reasonable doubt, but it is sufficient if it allows the trial judge to

make a conscientious and intelligent judgment.” Id. (citing State v. Milton, 673 S.W.2d 555,

557 (Tenn. Crim. App. 1984)).

Regarding appellant’s assertion that the trial court abused its discretion by failing to

conduct a hearing within a reasonable time, we note that there was a period of nearly one

year between the date that would have ended appellant’s diversion and the revocation

hearing. Also, included in the record is a letter from appellant to the trial court asking for

a hearing to be set. However, appellant did not address the delay at the revocation hearing.

Thus, we must conclude that he waived the argument. See Tenn. R. App. P. 36(a) (“Nothing

in this rule shall be construed as requiring relief be granted to a party responsible for an error

or who failed to take whatever action was reasonably available to prevent or nullify the

harmful effect of an error.”). Moreover, the record indicates that appellant was incarcerated

for other charges at least part of the time during the delay. Waiver notwithstanding, we

cannot determine based on the record before us whether the hearing was or was not

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conducted “at the earliest time practicable” asrequired by Tennessee Code Annotated section

40-35-311(b).

Appellant’s next argument is that the trial court’s ruling was insufficient because it

was ambiguous and because the court did not address all of the State’s allegations. However,

our review of the record indicates that the trial court’s ruling was clear and succinct. The

trial court relied on appellant’s convictions for new charges, which was sufficient to revoke

appellant’s judicial diversion. Therefore, we conclude that appellant is without relief.

CONCLUSION

Based on the record, the briefs of the parties, and the applicable law, we affirm the

judgment of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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