State of Tennessee v. Brandon Lee Laferty ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 18, 2012
STATE OF TENNESSEE v. BRANDON LEE LAFERTY
Appeal from the Criminal Court for Sullivan County
No. S55643 Robert H. Montgomery, Jr., Judge
No. E2012-01210-CCA-R3-CD - Filed March 13, 2013
The Defendant, Brandon Lee Laferty, appeals the Sullivan County Criminal Court’s revoking
his probation for solicitation of aggravated sexual battery, a Class D felony, and ordering his
ten-year sentence into execution. On appeal, the Defendant contends that the trial court erred
in revoking his probation and ordering him to serve his sentence. We affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.
Stephen M. Wallace, District Public Defender; and Steven D. Bagby, Assistant Public
Defender, for the appellant, Brandon Lee Laferty.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Barry
Staubus, District Attorney General; and William B. Harper, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
On February 7, 2011, the Defendant pleaded guilty to solicitation of aggravated sexual
battery. Pursuant to a plea agreement, he was sentenced as a Range II, multiple offender to
ten years on supervised probation. On October 7, 2011, a probation violation warrant
affidavit was signed by Janet Burgess, a probation officer, alleging that the Defendant
violated rule six of the conditions by removing his GPS tracking device and by failing to
report for a scheduled polygraph. The warrant was filed on November 1, 2011.
According to the affidavit, Probation Officer Heath Eanes instructed the Defendant
not to remove his GPS device. On October 7, 2011, Officer Eanes was notified by Veritracks
of a master strap tamper on the Defendant’s GPS. The Defendant could not be located at the
last known location shown by the GPS. The Defendant also failed to report to Counseling
and Consultation Services for a polygraph on October 7 at 2:30 p.m. as instructed by Officer
Eanes.
At the revocation hearing , the Defendant testified that his affidavit of indigency was
accurate. He said that he was extradited from Illinois and that he had not acquired new
charges but absconded there from Tennessee. He said that he saved $600 from his paychecks
in Illinois but that his uncle spent the money. Upon the Defendant’s testimony, the trial court
appointed the public defender’s office to represent him.
Defense counsel spoke with the Defendant the morning he was appointed and
informed the trial court that the Defendant told him that the GPS came loose from the
Defendant’s leg in a work-related incident but that he did not know if it was intentional or
accidental. He also said that the Defendant did not have the money to pay for the polygraph
examination and was told not to report if he could not pay. He said these statements were
partial admissions and partial denials. The court asked counsel if he wanted to hold an
evidentiary hearing or if the Defendant wanted to plead guilty to the violations. Counsel
responded that a no contest plea would be the most appropriate course because of the
Defendant’s statements. The court told the Defendant that it would hear what he wanted to
say but that if he pleaded no contest, the court would likely order him to serve his sentence
because of his statements under oath.
The Defendant waived his right to a hearing and entered a no contest plea. Counsel
stipulated to the facts in the affidavit. The trial court found that the Defendant violated the
terms and conditions of his probation. The court held the disposition immediately, and
counsel said that would be “fine.” The court asked if counsel would present any witnesses,
and counsel responded that he would typically call the Defendant but that because of the
Defendant’s possible more serious violation regarding the sexual offender registry, he did
not want the Defendant to testify in more detail. Counsel said he had not spoken to the
State’s witnesses, and the court gave him time in court to do so. After speaking with the
witnesses, counsel decided not to present evidence, and the State also presented no evidence.
The trial court revoked the Defendant’s probation and ordered his sentence into
execution. The court found that the Defendant entered a no contest plea to violations of
removing his GPS and failing to take a scheduled polygraph. The court found that during
the Defendant’s testimony about his affidavit of indigency, he said that he absconded to
Illinois and worked there. The court stated that it knew the Defendant was shot and that he
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left the state again after he was served with the violation warrant while he was at the hospital.
The court found that it would be inappropriate to return the Defendant to supervised
probation and ordered him to serve his ten-year sentence.
I
The Defendant contends that the trial court erred in revoking his probation. He argues
that the violations alleged were not violations of law and that no evidence was presented at
the hearing showing he was given notice that his conduct was prohibited. He argues the
court denied him sufficient time to consult with his attorney and prepare for the adjudication
and disposition of his probation violations. He also argues that the court improperly
considered facts and information outside the record of the violation hearing. The State
responds that the trial court did not err in revoking the Defendant’s probation and ordering
him to serve his sentence. We agree with the State.
A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). If a trial court revokes a defendant’s probation, its options include ordering
confinement, ordering the sentence into execution as originally entered, returning the
defendant to probation on modified conditions as appropriate, or extending the defendant’s
period of probation by up to two years. T.C.A. §§ 40-35-308(a), (c), -310 (2010); see State
v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The judgment of the trial court in a revocation
proceeding will not be disturbed on appeal unless there has been an abuse of discretion. See
State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981).
Regarding the Defendant’s argument that he did not violate the law and that no
evidence was presented showing his conduct was prohibited, we conclude that the record
contains substantial evidence that the Defendant violated his probation conditions. The
evidence shows the Defendant signed a probation supervision order and an amended order
that listed the conditions of his probation, including a rule requiring that he follow the
instructions of his probation officer. The Defendant conceded violating his probation at the
revocation hearing. The affidavit underlying the probation violation warrant states that
Officer Eanes instructed the Defendant not to remove the GPS and that Officer Eanes was
informed of a master strap tamper on the Defendant’s GPS. When Officer Eanes went to the
last location shown by the GPS, the Defendant was not there. The affidavit also states that
the Defendant failed to report to a scheduled polygraph examination as instructed by Officer
Eanes. The Defendant admitted not following the instructions of his probation officer when
he stipulated to the facts in the affidavit and pleaded no contest at the hearing. This evidence
supports the trial court’s finding that the Defendant violated his probation, and upon
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revocation, the court was within its discretion to order the Defendant’s sentence into
execution. See T.C.A. § 40-35-310(a) (2010).
Regarding the Defendant’s argument that the trial court denied him time to consult
with counsel and prepare for his revocation hearing, the record reflects that the Defendant
was able to speak with counsel and that he gave counsel information about the violations
before his hearing. When the court asked counsel if the Defendant wanted to have a hearing
or enter a plea, counsel told the court that a no contest plea was the more appropriate course
because of the Defendant’s statements. The Defendant states in his appellate brief that
counsel requested to continue the hearing, but the record reflects that counsel said, “I suppose
we can have a dispositional hearing on it either later this morning or this afternoon.” When
the court announced that it would have the dispositional hearing immediately, counsel said,
“That will be fine, Your Honor.” Further, when counsel said he had not spoken with the
State’s witnesses, the court gave him time to speak with the witnesses. Counsel consulted
with the witnesses, presented no witnesses of his own, and did not object to the hearing.
Nothing in the record indicates that the Defendant objected to the hearing. The Defendant
consulted with counsel before his hearing and admitted his violations.
Regarding the Defendant’s argument that the trial court improperly considered facts
outside of the revocation hearing, the record reflects that the court heard the Defendant’s
statements under oath during the hearing on his affidavit of indigency and read the facts of
the affidavit describing the violations of probation to which the Defendant stipulated. A trial
judge may enter judgment as the judge deems proper “under the evidence adduced before the
trial judge.” T.C.A.§ 40-35-311(d) (2010).
The Defendant argues that the court improperly relied on the Defendant’s favorable
plea agreement when revoking his probation. The court noted that the Defendant was
granted “a lot of consideration” by the State or that there were evidentiary issues when he
received probation rather than the lengthy sentence he could have received if convicted of
the crime with which he was charged. The Defendant’s indictment, request for acceptance
of guilty plea and waiver of rights, order accepting the guilty plea, and judgments were
before the court at the revocation hearing. The court saw that the Defendant was originally
charged with rape of a child, a Class A felony, and pleaded guilty to solicitation of
aggravated sexual battery, a Class D felony. See T.C.A. §§ 39-12-102; 39-13-504; 39-13-
522 (2010). We conclude that the evidence was before the court.
The Defendant argues that the trial court improperly considered that the Defendant
was served at the hospital and that he had been shot. The court asked during the hearing on
his affidavit of indigency if the Defendant had been shot, and the Defendant said he was shot
in Hawkins County. The warrant that was before the court notes that the Defendant was
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served at “HVMC.” We conclude that the evidence was before the court. Although the
evidence was before the court, nothing in the record indicates the court relied on these facts
to find the Defendant violated his probation. The court’s written order states the Defendant
violated the conditions of his probation by removing his GPS, and the court’s oral findings
relied on the Defendant’s removing his GPS and absconding to another state.
The Defendant also argues that the trial court improperly considered his testimony
about absconding to Illinois during the indigency hearing. The court heard the Defendant
state under oath that he was extradited from Illinois and that he received paychecks from a
job in Illinois. Although a defendant is entitled to notice of alleged violations of probation,
the court found the Defendant violated his probation primarily by removing his GPS, not for
absconding to Illinois. See Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974).
We conclude, though, that the evidence of the Defendant’s absconding was before the court
and that the court did not err by using the evidence to support its revoking the Defendant’s
probation once the violation was found.
In any event, the trial court concluded in its written order that the Defendant violated
the terms of his probation because he removed his GPS device. The Defendant admitted
removing his GPS and failing to attend a scheduled polygraph. The court did not abuse its
discretion in finding the Defendant violated the terms of his probation and revoking his
probation.
Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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