### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs D

ecember 13,

2000

STATE OF TENNESSEE v. KENNETH ENGLAND

Appeal from the Criminal Court for Campbell County No. 10,145 R. Shayne Sexton, Judge

No. E2000-00535-CCA-R3-CD January 10, 2001

The defendant appeals the revocation of his commun ity corre ctions sentence. Finding a lack of justiciable, substantial evidence to support the revocation, we reverse.

Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court Revers

ed.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID G. H AYES and N ORMA M CGEE O GLE , JJ., joined.

Charles Herman, Assistant Public Defender, Julie A. Rice, for the Appellant, Kenneth England.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney

General; William Paul Phillips, District Attorney General; Mike Ripley and Todd L ongmire, Assistant District Attorneys General, for the Appellee, State of Tennessee

OPINION

The de fend ant, Kenneth England, appeals the Campbell County Criminal Court’s revocationof his community corrections sentence. On November 29, 1999, that cour t place d the defendant on c ommunity corrections following his guilty plea a nd conviction of three counts of felony retaliation for past action and the imposition of an effective four-year, Range I sentence. See Tenn. Code Ann. § 39-16-510 (1997) (proscribing retaliation for past action, a Class E felony). On December

1, 1999, the defendant signed a “Behavior Contract and Conditions” for his community corrections sentence. In it, he agreed to various standard conditions and agreed to a void contact with the female victims of the conviction offen ses. After the defen

dant violated seve

ral halfway

house rules, the community corrections officer obtained a revocation warrant, a nd after a hearing on February 15, 2000, the trial c

ourt revoked the

defendant’s co

mmunity corr

ections sente

nce. I t ordered him to serve his sente

nce in the Department of Correction, with credit for 78 days that the defe ndant served in the community program. On appeal, the defendant c laims that the trial court erred in revoking the community corrections sentence. After a r eview of the record, the briefs, and the applicable la

w, we reverse th

e trial court’s ju

dgment.-2- At the revocation hearing, the state presented evi den ce t hat dur ing g rou p da ytreatment sessions at the Kress Center, the defendant made racially inflammatory remar ks that led to confrontations with black group members, made “general” threats such as “I’ll cut s

omebody if they f— with me,” exhibited “intimidati ng” body language, followed one of the female group members “around thecenter,” was disruptive in group sessions, and “refused to participate in any of the daily living skills activities on more than one occasion.” Also, the Cavender Hall Recovery House, a halfway

house in which the defendant re sided during the

latter part of his

brief community corrections experience, discharged the defendant on Janua

ry 11, 2000 be

cause he violate

d “house rules” by missing c

urfew on one occ

asion by two h

ours and on anothe

r occasion by

eight hours, carrying an open pocket knife o n December 31, 1999 and steak knife on January 6, 2000, making racial slurs betw

een January

2 and 11, 2000, maki

ng threats of bodily harm to a house member on January 11, 2000, and committing “[p]hysical violence” on January 11, 2000 by being “assaultive to fellow house member.”

The defendant testified at the revocation hearing that he pe r formed all of the requirements

of Kress center, the day treatment provider. He said, “[T]hey was wanting everybody to hug, and I didn’t want to hug nobody, . . .[but] I done everything they told me to do, everything.” He admitted violating curfew at the halfway house but claimed extenuating c ircumstances. He testified that the second curfew v iolation resulted f

rom his being late

due to his having t

o walk a long distance to return from a v isit to a hospital and

a drugstore. He

protested that, de

spitehis call to

the halfwa y house duri ng t he journey and the assuranc

e of someone at the

house that his call

and his inability to travel faster

would absolve him from a curfew violation, he was charged with a curfew infraction nevertheless. He admitted carrying the knivesbut posited that he needed a means of selfdefense due to his small stature and his presenc e on the streets in crime-ridden areas. He did not know that carry

ing the knives vio

lated the terms

of his community program; in fact, on one occasion, the police stopped him,

took the pocket kni

fe, and returne

d it to him before re

leasing him. He d

id not recall making racial slurs and denied committing any threa ts or assaults.

After the evidence was presented and the case was argued, the trial court found that “there is sufficient evidence to support the allegations that have been made by the Corrections Program [, although i]t is a very sad situation, it does appear to be a very technical violation.” The court revoked the community corrections placement, awarded 78 day s credit on the d efendant’s sentence, and ordered him to serve the balance of the sentence in the Department of Corr ection.

On appeal, the defendant argues that there was a lack of proof that “he ignor ed hi s responsibility

for attending th

e day trea

tment p rogram a

nd . . . that he had su

fficient time to complete any program, much less fail to complete it.”

He essentially

complains t

hat the pr oof tha t he was dis char ged f rom his hal fwayhouse residence is insu

fficient to suppor

t a finding that he

violated rule 17 of

his community corrections agreement. The violation warrant alleged onlythat the defendant violated rule 17 in

that “the client failedto participate and complete treatment.” Rule 17 requires the defendant to “su

bmit to alcohol/drug a

ssessment/treatme

nt/evalu ation and follow recomme ndations.” He cor

rectly poin

ts-3-

outthat he had neither

been terminated from, nor had he withdrawn from, his day-treatment program at the Kress Cent er a nd that the Kress Center has no connection to the Cavender Hall Recovery House, the half-way house where he resided. He is also cor r e ct that it was his discharge from the half-way house which prompted the filing of the violation warrant, even though the warrant didnot al lege this discharge or the defendant’s behavior at the half-way house as grounds for revocation.

The evidence is more equivocal about whether his community corrections office r required him to reside at Cave nder Hall and whether the d

efendant’s res

idence there wa

s in some way a part of or requ

isite to his receiving treatment at Kress. When the state elicited testimony from the community correctionsofficer that the defendant had committed house infractions at Cavender Hall, the defendant objected. In its response to the objection, the state argued that it could pursue the questioning upon the pr emis e that “Cavender Hall is the halfwa

y house that t

he defendant is required to live in and is required to live by those rules . Part of tho se rules are the day treatment program.” The prosecutor t hen stated to the c

ourt, “That is part and parcel one . . . with the other.” The trial court overr

uled the defenda

nt’s obje ction. T hen, directing a question to the witness, the prosecutor

asked, “Am I not

corr ect?” to which the witness responded, “Yes.” However, the court had received no evidence prior to this exchange that community corre ctions personnel required

the defendant to reside at Cavender Hall or that his residence there was an integral part of the “re quired” treatment program at Kress Center, an unrelated facility

.

Later in the h

earing, the co

mmunity corr

ections officer

testified as follo

ws:
Q Does one have to be a resident of Cavender Hall . . . to be involved i

n treatme nt and cou

nseling a t [Kress Ce

nter]? A No. Q So, if he had a problem at the halfway house, he could have been, say transferred to another halfway house and he could have continued his trea

tment? A As far as I know. [Kress] Center has not stated otherwise.

The d ecision to revoke a community corrections sentence rests within the sou n d discretion of the trial court and will not be disturbed on appeal unless there is no substantial evidence to support the trial court’s conclusion that a violation has occurred. State v. Harkins
, 811 S.W.2d 79, 82 (Tenn. 1991). In reviewing the trial court’s finding, it is our obligation to examine the record and determine whether the trial court has exercised a conscientious judgment rather than an arbitrary

one. State v. Mitchell

, 810 S.W.2d 733, 7 35 (Te nn. Cr im. Ap p. 199 1). Ifthe evidence is su fficient, the trial court may, within its di scret ionary authority, revoke the community corrections sentence and require the defendan t t o serve his sentence in confinement. Tenn. Code Ann. § 40-36-196(e)(3) (Supp. 1998).

At

the o utset, w e must state that we have concerns about the Cavender Hall and “weap on” violations that are different from those the defendant raises in his complaint relat ive t o suf fic ien cy. To the extentthat the trial court may have relied upon the events at Cavender Hall and-4-

the knife possession that led to the defendant’s discharge from that facility – or may have relied upon the discharge itse

lf – as bases for re

voking the commun

ity placement, the defendant was not afforded due pro cess not ice of t hes e gro und s fo r rev ocat ion . Es sen tia lly a probationer is entitled to notice of the bases upon which the state seeks to revoke probation, and he or

she is entitled to a hearing. See Gagnon v. Scarpelli , 422 U.S. 778, 781-8 2, 93 S. Ct. 1756, 1759-60 (1973); State v. Stubblefie ld
, 953 S.W.2d 223 , 225 ( Tenn. Crim. App. 1997); Tenn. Code Ann. § 40-35-311 (1997). The requirement

of notice applies in a community corrections revoc atio n proceeding ju st as it does in probation revocations. Bentley v. State , 928 S.W.2d 706, 714 (Tenn. Crim. App. 1996).

In t he pre sent case, the sta te alleged only

that the defenda

nt violated rule 17

with respect to the treatment

requirement.The evidence of the defendant’s

misbehavior at Cav

ender Hall may have supported

violations of commun

ity correc tions rules 7 (with r

espect to the possession of dangerous weapons), 12 (wi th respect to obey

ing state laws),

and perhaps 21 (w

ith respect to attending and participatin g in programs r

equired by

his case office r, “i.e. support groups, therapy groups”); however, the defendant rec eiv ed no notice that vi olations of these r

ules would serve t

o justify the revocation of his community placement sought by

the warrant. Thus, had the trial court reliedupon the events at

Cavender Hall as

independent commu

nity correctionrules infractions, the revocation would

be constitutionally

and statutorily

infirm.

On the other hand, we

do not discern that

the trial court uti

lized this evidence in this

manner. The trial judge o

verruled the def

endant’s objecti

on to the introduction of the Cavender Hall evidence after the state

argued that the

house-rule infractions and discharge at Cavender Hall were “part and parcel”

of the Kress Center treatment program that was mandated pursuant to rule 17. As such, the trial court considered the Cavender Hall evidence to implicate a violation of rule 17, rather than supplying independent grounds for revocation. Thus, the issue become s whether the evidence supports the trial court’s discretionary use of the Cavender Hall evidence as a basis for finding that the defendant failed to submit to treatment or follow treatment recommendations.

With all due respect for the trial court’s ambit of discretion in the matter, we cannot conclude that substantial evidence supports a conclusion tha t the defen dant’s continued billet at Cavender House was a requ

irement of communi

ty correc tions or was a cond

ition of the da ytreatment program. Furthermore, we cannot conclude, apart from the Cavender Hall evidence, that

no substantial evidence was presented that the defenda nt fail ed to comply w

ith community corrections rule 17 that he “submit” to treatment or “follow recommendations.”

To be sure, the community corrections officer answered a ffirmatively during her testimonywhen the prosecu tor apparently

asked her if

he was correct that the defendant was required by community correct

ions to r eside at Cavender Hall and the halfway house billet was “part a nd parcel” with the day treatment. However, before the question was asked and answered, the trial court accepted the state’s “part and parcel” argument, even though no evidence suppor ted it. The remainder

of the officer’s testimony can only be understood to belie the impression that community corrections required the defendant to live at Cavender Hall or that the Cavender

Hall residence was integral to t he day trea

tm ent at Kress Center. In short, no substantial evidence exists to support-5-

eithe r of these propositions. We conclude that the evidence of the defendant’s Caven der Hal l deportment canno

t be brought into th

e case under the

rubric allege

d in the violation wa

rrant.

The remaining question is whether the defendant’s de

portment at Kress

Center alone supports the decision to revoke the community placement. Again, substantial evidence is lacking

on the issue of whether the defendant fai led to submit to treatment or failed to follow treatment recommendations

. We believe the pauci ty of evidence was mirrored in the trial court’s comment that the alleged violations appeared to be “very technic al.” We cons true the tri al judge’s fi ndings to mean that he relied upon bo th th e Kress Center report and the Cavender Hall report to justify revocation. We do not believe that the Kress Center report in itself justifies revocation, nor do we believe that the trial court would have held otherwise h ad i t realized that the Cavender Hall information was not justiciable.

Finding no substantial evidence to support the revocation, we reverse the trial court and vacate the judgment. Although the present violation warrant must be dismissed, we point out that the state is apparently free to initiate a new warr a nt that alleges a

ppropriate commu

nity corrections rule violations that emanate from the defendant’s misconduct, eithe r at Cavender Ha

ll or while on the street in the possession of a weapon.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE