State of Tennessee v. Demarcus O'Shea Walker ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 20, 2005
STATE OF TENNESSEE V. DEMARCUS O’SHEA WALKER
Direct Appeal from the Circuit Court for Maury County
Nos. 8905, 9028, 9127, 9128 Stella Hargrove, Judge
No. M2004-02634-CCA-R3-CD - Filed July 20, 2005
The Defendant, Demarcus O’Shea Walker, pled guilty to various offenses, and the trial court
sentenced him to an effective sentence of ten years, which it ordered the Defendant to serve on
probation. While the Defendant was on probation, a probation violation report was filed and, after
a hearing, the trial court revoked the Defendant’s probation and ordered that the Defendant serve the
remainder of his sentence in prison. On appeal, the Defendant contends that the trial court erred by
revoking his probation. After thoroughly reviewing the record and the applicable authorities, we
affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.
Robin Farber, Columbia, Tennessee, for the Appellant, Demarcus O’Shea Walker.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; T.
Michael Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
I. Facts
In case number 8905, the Defendant pled guilty to one count of the sale of cocaine. The trial
court sentenced the Defendant, as a Range I standard offender, to three years. It ordered that this
sentence run concurrently with the Defendant’s sentences in case numbers 9028, 9127, and 9128,
for an effective sentence of ten years. The trial court ordered that the Defendant serve his sentence
on probation. The Defendant’s probation officer filed a probation violation report, alleging that the
Defendant failed to: (1) report to his probation officer as instructed; (2) pay all required fees; and (3)
comply with all special conditions.
The following evidence was presented at the Defendant’s probation revocation hearing: Jean
Layne, the Defendant’s probation officer, testified that the Defendant was previously sent to boot
camp, and he came out of boot camp on February 12, 2002. She stated that, on June 7, 2004, she
filed a revocation warrant against the Defendant because he had not reported since February 26,
2004, he was not paying his fees, and he was not making payments to the court. Layne testified that,
at that time, the Defendant was on regular probation, not intensive probation. She stated that from
February 26, 2004, until June 7, 2004, she did not receive any communications from the Defendant
to explain his failure to report. Layne testified that she was unaware of any “new” arrests or offenses
that the Defendant had committed. She said that she filed the warrant on June 7, 2004, but the
Defendant was not arrested until sometime in August. Layne stated that she did not hear from the
Defendant during June or July of that year, and she attempted to locate him on several occasions.
She said that it is the probationer’s responsibility to inform her of any address changes, and she did
not receive any notice of a change of address from the Defendant. She testified that letters that she
sent to the Defendant, ordering him to report, were not sent back to her.
On cross-examination, Layne testified that the Defendant was under her supervision from
February 12, 2002, through June 7, 2004, except for when the Defendant was transferred to Memphis
for job training. Layne testified that her office helped facilitate the transfer, and she had proof that
the Defendant was working. She testified that there were no violations filed while the Defendant
was under supervision in Memphis. She said that she received the case upon the Defendant’s return.
Layne testified that, when the Defendant came out of boot camp, he was on intensive probation for
three months, which requires weekly reporting, and, during that time, the Defendant reported to her
and met the obligations of his probation. She testified that, during her supervision of the Defendant,
she administered drug tests to the Defendant, and, in March of 2002, the Defendant tested positive
for a small amount of marijuana. Layne testified that there were “quite a few” times that the
Defendant was working and paying his fees during her supervision. She agreed that she was not
given an explanation about the Defendant’s non-reporting, but she said that the Defendant told her
that he did not have the money to pay his fines and fees.
The Defendant testified that he had previously had his probation revoked, and he was sent
to boot camp. He stated that he was working when he was arrested, and, if he were released, he
would have employment, and he would reside with his mother. He admitted that he did not report
during the times that Layne indicated he had not reported. The Defendant testified that he stopped
reporting because he did not have a job or any money to pay his fines. He stated that he knew that
not reporting was wrong, but, either way, he would have been in violation of his probation by not
paying the fines. He stated that he understood that paying his costs and fines is just one obligation
of his probation.
After hearing the evidence, the trial court stated:
This is his – I think it’s his second revocation. He was revoked in October
of 2000 to serve the ten years. TDOC took steps to send him to boot camp somehow.
He’s out of boot camp on February 12th, 2002. There was one revocation order that
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was put down and then rescinded in 2001 and I don’t know the details of that. He’s
on intensive probation for three months. It looked like he did well. He’s on regular
probation after that. The probation revocation warrant is taken on June 7th, 2004.
The allegations are that he had not reported since February of 2004 and he had not
paid fees since January of 2004, not provided verification of employment.
This court does not understand why [the Defendant] would use the reason that
he didn’t report because he wasn’t able – didn’t have any money for fees. That
doesn’t make a lot of sense to me. [The Defendant] knows better than that. He
knows how the court system works. He’s no stranger to this court system. And even
if the court were analyzing willfully refusal to pay versus inability to pay today, I
cannot reconcile that with the not reporting.
And so, the court revokes [the Defendant] to serve the remainder of his ten
year sentence.
The Defendant appeals the trial court’s order, contending that the trial court erred when it revoked
his probation.
II. Analysis
The Defendant asserts that the trial court erred in revoking his probation. The State counters
that, because the Defendant has failed to cite to the record, this issue is waived. Further, the State
contends that the trial court did not abuse its discretion by revoking the Defendant’s probation.
Initially, we note that the Defendant has waived the issue by failing to reference the appellate
record in his brief to this Court. Under Rule 10(b) of the Rules of the Court of Criminal Appeals,
“Issues which are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.” Accordingly, the Defendant has waived his claim for
relief by failing to provide any references to the record; however, we will nonetheless proceed to
address the Defendant’s claims on their merits.
When a trial court determines by a preponderance of the evidence that a probationer has
violated the conditions of his or her probation, the trial court has the authority to revoke probation.
Tenn. Code Ann. § 40-35-311(e) (2003). At the conclusion of a probation revocation hearing, when
the trial court has determined that a probationer has violated his probation, a trial court can, among
other things, order incarceration. State v. Hunter, 1 S.W.3d 643 (Tenn. 1999). The decision to
revoke probation is in the sound discretion of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735
(Tenn. Crim. App. 1991). The judgment of the trial court to revoke probation will be upheld on
appeal unless there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). To find an abuse of discretion in a probation revocation case, the record must be void of any
substantial evidence that would support the trial court’s decision that a violation of the conditions
of probation occurred. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614
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S.W.2d 395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation is sufficient if it allows
the trial court to make a conscientious and intelligent judgment. State v. Milton, 673 S.W.2d 555,
557 (Tenn. Crim. App. 1984).
We conclude that the trial court did not abuse its discretion when it revoked the Defendant’s
probation. At the probation revocation hearing, the Defendant said that he understood that it was
his responsibility to meet the terms of his probation. The Defendant clearly admitted that he stopped
reporting to his probation officer because he did not have any money to pay the fines, which was
another condition of his probation. Under these circumstances, we conclude that the trial court did
not abuse its discretion by revoking the Defendant’s probation, and ordering that the Defendant serve
the balance of his sentence in prison.
III. Conclusion
Based on the foregoing reasoning and authority, we affirm the judgment of the trial court.
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ROBERT W. WEDEMEYER, JUDGE
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