State v. Billy Oden ( 2010 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 7, 1998
SEPTEMBER 1998 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9710-CC-00468
)
vs. ) Maury County
)
BILLY GENE ODEN, JR., ) Hon. Jim T. Hamilton, Judge
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
SHARA ANN FLACY JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
WILLIAM C. BRIGHT (at hearing) LISA A. NAYLOR
JOSEPH L. PENROD (on appeal) Asst. Attorney General
Asst. District Public Defenders 425 Fifth Ave. N., 2d Floor
128 N. Second St. Nashville, TN 37243-0493
P.O. Box 1208
Pulaski, TN 38478 MIKE BOTTOMS
District Attorney General
LARRY NICKELL
Asst. District Attorney General
P.O. Box 1619
Columbia, TN 38401-1619
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Billy Gene Oden, Jr., appeals from the trial court's
order revoking his probation and ordering him to serve his sentence in the
Department of Correction. In this appeal, he claims the trial court was without
jurisdiction to revoke his probation because his sentence had expired and because
the court which revoked his probation was not the sentencing court. After a review
of the record and the parties' briefs, we affirm the trial court’s revocation of
probation.
On July 7, 1992, Oden entered best-interest guilty pleas to one count
of aggravated burglary and one count of theft of property over $1,000.1 The plea
agreement called for sentencing as a Range I offender, with a six year sentence for
aggravated burglary and a two year sentence for theft. The sentences were to be
served concurrently to each other but consecutively to sentences for five other
convictions. The first year of the effective six year sentence was to be served in the
Department of Correction, with the balance on probation. The plea was accepted
by Judge James L. Weatherford, Circuit Court Judge of the Twenty-Second Judicial
District.
The record does not reflect when the defendant began serving this
sentence; however, on May 24, 1996 Judge Weatherford placed the defendant on
supervised probation for one year relative to these offenses. On July 23, 1997,
Judge Jim T. Hamilton, Circuit Court Judge of the Twenty-Second Judicial District,
issued a probation violation warrant based upon the defendant's "failure to report
to the TBI as part of the Sexual Offender Registration and Monitoring Act[.]"
1
In North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), the United
States Supreme Court held that a criminal defendant may enter a guilty plea
without admitting guilt if the defendant intelligently concludes his best interests
would be served by a plea of guilty.
2
Thereafter, on August 21, 1997, Senior Judge James L. Weatherford, sitting by
designation and assignment of the Chief Justice of the Tennessee Supreme Court,
issued a probation violation warrant for the defendant based upon new criminal
charges of attempted aggravated rape and attempted burglary.
Judge Hamilton presided without objection at the defendant's
revocation hearing. The only proof presented by the state pertained to the
defendant's alleged criminal activity, the subject of the second revocation warrant.
At the conclusion of the proof he found sufficient proof that the defendant had
violated the terms of his probation. He revoked the defendant's probation and
ordered him to serve his sentence in the Department of Correction.
I
First, the defendant challenges the court's jurisdiction to revoke his
probation, which he claims had expired prior to these proceedings. He relies on the
May 24, 1996 order imposing one year of supervised probation, claiming the effect
of this order is to shorten his sentence. Therefore, he reasons, his sentence had
expired prior to the commencement of the revocation proceedings. We disagree.
The defendant received his effective six year sentence on July 7,
1992. Even if he had begun service of that sentence immediately, which it appears
he did not, the relevant revocation warrant was issued less than six years later.
With respect to the May 24, 1996 order placing him on supervised probation for one
year, we believe this order simply dealt with the manner of service of that portion of
the defendant's sentence, i.e. supervised as opposed to unsupervised probation.
Furthermore, the defendant has cited no legal authority which would allow the trial
court to shorten a sentence in the manner the defendant claims Judge Weatherford
did in his case. To the contrary, the Sentencing Reform Act allows the court to
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release a defendant from supervision, and specifies that such action "shall not
discharge the defendant from the remainder of the sentence." Tenn. Code Ann. §
40-35-308(a)(3) (1997). In the case of such action, the defendant remains subject
to revocation. Tenn. Code Ann. § 40-35-308(a)(3) (1997). In this case, the obvious
import of the Judge Weatherford's probation order was to release the defendant
from supervision one year after entry of the May 23, 1996 order. It did nothing to
decrease the length of his sentence.
Accordingly, the revocation proceeding was commenced within the
probationary period.
II
The defendant also questions whether Judge Hamilton had the
authority to revoke the defendant's probation because Circuit Court Judge
Weatherford, not Judge Hamilton, presided at the sentencing hearing. 2 The
Sentencing Reform Act provides
Whenever any person is arrested for the violation of probation and
suspension of sentence, the trial judge granting such probation and
suspension of sentence, the trial judge's successor, or any judge of
equal jurisdiction who is requested by such granting trial judge to do
so shall, at the earliest practicable time, inquire into the charges and
determine whether or not a violation has occurred, and at such
inquiry, the defendant must be present and is entitled to be
represented by counsel and has the right to introduce testimony in the
defendant's behalf.
Tenn. Code Ann. § 40-35-311(b) (Supp. 1998) (emphasis added); see also State
v. Duke, 902 S.W.2d 424, 426 (Tenn. Crim. App. 1995).
2
The defendant also claims that Judge Hamilton was not the proper judge
for conducting the revocation hearing because Judge Weatherford was the judge
who shortened the defendant's sentence. As discussed in Section I, supra, the
action by Judge Weatherford was a release from supervision, not a shortening of
sentence.
4
The record reflects that the defendant made no objection to Judge
Hamilton conducting the revocation hearing. The matter was called for hearing
before Judge Hamilton on September 2, 1997. The state presented three
witnesses, and the witnesses were subject to cross-examination by defense
counsel. The case was argued by both sides, and Judge Hamilton revoked the
defendant’s probation. The defendant did not raise the issue that Judge Hamilton
was disqualified to sit until the present appeal to this court. We hold that he may
not raise that issue after he “failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of [any] error” in the proceedings below.
Tenn. R. App. P. 36(a). Judge Hamilton proceeded to hear the case in the absence
of any objection from the defendant who merely awaited an unfavorable ruling
before raising the issue on appeal. 3
Our conclusion that the issue is waived under rule 36(a) is buttressed
by the fact that, in his appeal, the defendant has complained only about the
timeliness of the revocation warrant and the service of Judge Hamilton in
conducting the hearing. Significantly, he has not alleged that Judge Hamilton’s
decision to revoke probation is wrong or unjustified. Essentially, in addition to
waiving the issue, the defendant has failed to allege -- and the record fails to
demonstrate -- any prejudice from Judge Hamilton's conducting the hearing. As
such, the error, if any, was harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P.
52(a).
3
In so holding, we note that Judge Weatherford was unavailable because
he had left the circuit court bench. Thus, it is possible that Judge Hamilton heard
the case because he was Judge Weatherford's successor. It is also possible
that the defendant thought Judge Hamilton's court was a more favorable forum
than Judge Weatherford's successor's court. We decline to establish authority
which would allow a defendant to take advantage of the latter situation by "forum
shopping" by sitting on an objection to the presiding judge at a revocation
hearing and then raising it for the first time on appeal in order to get a second
revocation hearing.
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For these reasons, the judgment of the trial court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
GARY R. WADE, PRESIDING JUDGE
_______________________________
THOMAS T. WOODALL, JUDGE
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