STATE OF TENNESSEE v. DANIEL SMITH ( 2022 )

08/11/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 19, 2022
STATE OF TENNESSEE v. DANIEL SMITH
Appeal from the Criminal Court for Shelby County
No. 19-05778, James M. Lammey, Judge
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No. W2021-01075-CCA-R3-CD
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The Defendant, Daniel Smith, appeals the trial court’s revocation of his ten-year probation
sentence for aggravated assault. The trial court determined that the Defendant’s act of
sending a letter to the victim violated the terms of his probation sentence and ordered the
Defendant to serve his sentence. The Defendant asserts that the trial court’s revocation of
his probation sentence was an abuse of discretion and that he should be returned to service
of a probation sentence. After review, we conclude that revocation of the probation
sentence was not an abuse of discretion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.
Phyllis Aluko, Shelby County Public Defender; Tony N. Brayton (on appeal), Assistant
Shelby County Public Defender; and Robert H. Gowen, Assistant Shelby County Public
Defender (at hearing), Memphis, Tennessee, for the appellant, Daniel Smith.
Herbert H. Slatery III, Attorney General and Reporter; Lindsay Haynes Sisco, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Michael Haas, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
In September 2019, a Shelby County grand jury indicted the Defendant for
aggravated assault and domestic assault of the victim in May 2019. On July 21, 2020, the
Defendant pleaded guilty, as a multiple offender, to aggravated assault for an agreed upon
ten-year probationary sentence. In accordance with the agreement, the State dismissed the
remaining charge. In relevant part, a condition of the Defendant’s probation sentence
required no contact with the victim. Additionally, the Defendant agreed that he would not
engage in “any assaultive, abusive, threatening or intimidating behavior.” He signed his
acknowledgment of and agreement to comply with the conditions of his probation sentence
on the same day of sentencing.
On July 29, 2021, the Defendant’s probation officer filed an affidavit, alleging that
the Defendant had violated the conditions of his probation as follows:
[The Defendant] violated Rule #1 [that the Defendant would obey the laws]
in that he was arrested on 7/27/2020 for the offense of Stalking. The case
was Held To State on 9/23/2020 and was filed in Criminal Division V on
4/20/2021 under case number C2100898. The Grand jury indicted [the
Defendant] on 4/21/2021. The case is set for Report on 7/29/2021.
[The Defendant] violated Rule #14 [that he would not engage in any
assaultive, abusive, threatening or intimidating behavior] in that he was
arrested for the offense of Stalking reflecting his engagement in threatening
and/or intimidating behavior.
Based upon these allegations, the trial court issued a warrant for the Defendant’s arrest.
The trial court held a probation violation hearing on August 26, 2021, to determine
whether the Defendant had violated the conditions of his probation sentence. At the
hearing, the State asserted that the Defendant wrote a letter to the victim to be delivered
after he pleaded guilty on July 21, 2020, in violation of his probation. Defense Counsel
responded, “we don’t dispute any of that. [The Defendant] is sorry. He has stopped writing
[the victim], all together.” Defense Counsel asked the trial court to return the Defendant
to probation.
The victim identified a letter she received from the Defendant on July 22, 2020. She
explained that the receipt of this letter caused her fear “[b]ecause [she] thought since he
had pled guilty he wasn’t going to contact [her] anymore.” When asked how the letter had
affected her, she replied, “He keeps terrorizing me and my family and I just wanted him to
leave me alone and he won’t leave me alone.”
The victim testified that the July 22, 2020 letter was not the first letter the Defendant
had sent her and that he had “violated his Order of Protection numerous times before.” She
estimated that the Defendant had sent her five or six other letters and attempted to contact
her by phone. The victim identified a portion of the July 22, 2020 letter that read, “Wait
until July 22.” The victim stated that this caused her to think “he was trying to wiggle his
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way out of trouble, because he already pled guilty saying that he wasn’t going to contact
[her], but yet [he] still contacted [her].”
The victim described the impact of the Defendant’s contact on her family as follows:
My daughter’s tried to kill herself and she is only eleven years old.
She was in therapy and my son had to go to therapy, my daughter has
nightmares at night, crying and can’t sleep, because she’s so afraid that he is
going to come and find us and kill us. I have nightmares (uncontrollably
crying).
I haven’t gone out because I don’t want to run into him, even though
I know he is locked up, it just terrifies me.
On cross-examination, the victim admitted that initially she accepted the
Defendant’s collect phone calls, but even after she stopped accepting the calls he continued
to call. She further agreed that she responded to some of the Defendant’s letters in writing.
At some point, however, she told the Defendant she no longer wanted any contact with
him. The victim agreed that she had not received any letters from the Defendant since the
July 22, 2020 letter. She had since changed her telephone number so she was unaware of
any attempted phone calls from the Defendant.
Upon questioning by the trial court, the victim recounted some of the abuse the
Defendant inflicted upon her and her children.
The Defendant testified that he pleaded guilty and “shortly thereafter” “sent a letter
to the [victim.].” He confirmed that his conduct was “a mistake” and something for which
he was sorry. The Defendant apologized to the trial court and explained that he “was just
trying to make things right with [the victim], but [he] ended up making things worse.” The
Defendant confirmed that he had not attempted to contact the victim in over a year. The
Defendant asked the trial court to return him to probation.
On cross-examination, the Defendant agreed that a ten-year probation sentence in
light of the “very serious offenses” was “a break.” The Defendant agreed that he pleaded
guilty to violation of a protective order for contact he had in the past with the victim. The
Defendant confirmed that at the guilty plea hearing, the trial court had instructed him that
he was not to have contact with the victim, and he had agreed to the condition. The
Defendant explained the July 22, 2020 letter as follows:
Well, it was just a stupid mistake. I was trying to, I guess you can call
it, I was trying to be sneaky, I was trying to wait until the order of protection
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would end and she would get it when it expired, but at the same time I still
shouldn’t have wrote it, it was a mistake on my part.
The Defendant agreed that he was “trying to be slick and trying to skirt around the
law.” He confirmed that he was aware that the victim wanted no contact with him. He
explained that the purpose of the letter was to “try to ease her pain and let her know that
[he was] going to apologize for what [he] did.” He then noted that “a lot” of the victim’s
testimony at the hearing about his abuse was not true. The Defendant agreed that he told
the trial court at the guilty plea hearing that he would not contact the victim and then the
following day, the victim received a letter from him.
Based upon this evidence, the trial court found, by a preponderance of the evidence,
that the Defendant had violated the conditions of his probation by contacting the victim.
As a result, the trial court ordered service of the ten-year sentence. It is from this judgment
that the Defendant appeals.
II. Analysis
The Defendant asserts that the trial court abused its discretion when it revoked his
probation sentence and ordered him to serve his sentence in confinement. The State
responds that the trial court acted within its discretion when, after determining that the
Defendant had violated the terms of his probation, revoked the probation sentence and
placed the sentence into effect. We agree with the State.
A trial court’s authority to revoke a suspended sentence is derived from Tennessee
Code Annotated section 40-35-310 (2019), which provides that the trial court possesses
the power “at any time within the maximum time which was directed and ordered by the
court for such suspension, . . . to revoke . . . such suspension” and cause the original
judgment to be put into effect. 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) (2019). “In probation revocation hearings, the credibility of
witnesses is to be determined by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735
(Tenn. Crim. App. 1991). If a trial court revokes a defendant’s probation, 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
(2019); 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. Shaffer, 45 S.W.3d 553,
554 (Tenn. 2001); State v. Smith, 909 S.W.2d 471, 473 (Tenn. Crim. App. 1995). In order
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for this Court to find an abuse of discretion, “there must be no substantial evidence to
support the conclusion of the trial court that a violation of the conditions of probation has
occurred.” Shaffer, 45 S.W.3d at 554. Further, a finding of abuse of discretion “‘reflects
that the trial court’s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.’” Id. at 555(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
The record in this case provided substantial evidence to support the trial court’s
revocation of probation. First, the Defendant admitted contacting the victim. Based upon
the testimony at the hearing, it is clear the Defendant understood that he was not to have
any contact with the victim and was aware of the consequences of failing to comply. See
State v. Zantuan A. Horton, No. M2014-02541-CCA-R3-CD, 2015 WL 4536265, at *3
(Tenn. Crim. App., at Nashville, July 28, 2015) (stating that a defendant who admitted
violating the terms of his probation conceded an adequate basis for finding of a violation),
no perm. app filed. Despite his understanding that he could not contact the victim, the
victim received a letter from him. The Defendant offered little explanation as to why he
told the trial court he would not contact the victim knowing either that she would receive
a letter from him or sending it after assuring the trial court he would have no contact.
Moreover, the Defendant acknowledged his intent to “skirt around the law.” This evidence
supports the trial court’ conclusion that the Defendant violated the condition of probation.
After the trial court found that the Defendant had violated the terms of his probation,
it retained discretionary authority, pursuant to Tennessee Code Annotated section 40-35-
310(b), to order the Defendant to serve his sentence in incarceration. The determination of
the proper consequence of a probation violation embodies a separate exercise of discretion.
Hunter, 1 S.W.3d at 647. Case law establishes that “an accused, already on probation, is
not entitled to a second grant of probation or another form of alternative sentencing.” State
v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim.
App., at Nashville, Feb. 10, 1999), perm. app. denied (Tenn. June 28, 1999).
We conclude that the trial court did not abuse its discretion when it ordered the
Defendant to serve the remainder of his sentence. The Defendant failed to comply with
the condition of his probation requiring him not to contact the victim. Additionally, one of
the Defendant’s prior convictions was for violating an order of protection against the
victim, exhibiting a pattern of difficulty with compliance. Accordingly, we conclude that
the trial court correctly found that the Defendant violated a condition of his probation
sentence and then, in its discretion, properly determined the consequence of the violation.
Therefore, the Defendant is not entitled to relief.
III. Conclusion
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Based on the foregoing reasoning and authorities, we affirm the trial court’s
judgment.
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ROBERT W. WEDEMEYER, JUDGE
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