State of Tennessee v. Jacob Sarkissian ( 2022 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE | “gece
AT KNOXVILLE Appellate Courts
Assigned on Briefs October 27, 2022
STATE OF TENNESSEE v. JACOB SARKISSIAN
Appeal from the Criminal Court for Knox County
Nos. 118119 Scott Green, Judge
No. E2022-00059-CCA-R3-CD
The Defendant, Jacob Sarkissian, appeals the trial court’s revocation of his three-year
probationary sentence for aggravated assault. The trial court revoked the Defendant’s
probation after determining that he materially violated his probation sentence by testing
positive for marijuana, methamphetamine, and amphetamine, and by having contact with
the victim. The Defendant asserts that the trial court’s revocation of his probation sentence
was an abuse of discretion because the trial court improperly relied on allegations of
physical abuse that were not alleged in the probation violation warrant. The record
supports the trial court’s finding that the Defendant violated the terms of his probation
sentence and the trial court’s decision that the Defendant must serve his sentence in prison.
We conclude that no abuse of discretion occurred and affirm the trial court’s judgment.
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 JAMES CURWOOD
WITT, JR., P.J., and CAMILLE R. MCMULLEN, J., joined.
Eric M. Lutton, District Public Defender, Jonathan Harwell, Assistant Public Defender (on
appeal), and Chelsea A. Harris, Assistant Public Defender (at hearing), Knoxville,
Tennessee, for the appellant, Jacob Sarkissian.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Joseph Welker,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I, Facts
On October 28, 2020, the Defendant pleaded guilty to aggravated assault for an
agreed-upon sentence of three years, to be served on probation. In relevant part, the
conditions of the Defendant’s probation sentence required that he: (1) not violate any laws;
and (2) refrain from any contact with the victim, Victoria Grady.
On July 23, 2021, a State probation officer, Mike Hammond, filed an affidavit
alleging that the Defendant underwent a drug screen on June 29, 2021, and the results
indicated positive for marijuana. Based upon these allegations, the trial court issued a
warrant on the same day for the Defendant’s arrest. On August 19, 2021, the trial court
allowed an amendment to the violation of probation warrant to include that the Defendant
tested positive for marijuana on July 20, 2021, and methamphetamine on August 2, 2021,
in violation of the terms of his probation. On October 26, 2021, the trial court allowed a
second amendment to the probation violation warrant, alleging that the Defendant tested
positive for marijuana, methamphetamine, and amphetamine on October 7, 2021. A final
amendment was filed on October 28, 2021, alleging that the Defendant had contact with
the victim as evidenced by recorded phone calls while the Defendant was in custody at the
Knox County Detention Facility.
The trial court held a hearing! on November 17, 2021, to determine whether the
Defendant had violated the conditions of his probation sentence. At the hearing, the
Defendant testified that he had violated the terms and conditions of his probation as alleged
within the warrant. Based upon the Defendant’s admission and the sworn allegations
contained within the violation warrant, the trial court found that the Defendant had
materially violated the terms and conditions of probation.
The trial court held a sentencing (sanction) hearing on the probation violation on
December 16, 2021. The parties presented the following evidence:
Ms. O’Grady, the victim, testified about her interactions with the Defendant since
he had been placed on probation. Ms. O’Grady was aware that the Defendant was not
allowed to contact her; however, she cared about the Defendant and wanted him to seek
treatment. Ms. O’Grady and the Defendant interacted through text messages, telephone
calls, and the Defendant came to her residence “[a] few times.” Ms. O’Grady described
multiple incidents of violence when the Defendant punched, choked, and “hit [her] head a
couple times on the dash of his car.” All of these events occurred while Ms. O’Grady was
experiencing temporary paralysis from the waist down due to “[a]cute disseminated
encephalomyelitis.” The Defendant also cursed at and threatened Ms. O’Grady. Ms.
O’ Grady testified that she observed the Defendant using methamphetamine and marijuana
after being placed on probation. Ms. O’Grady either purchased or provided the money for
! The record reflects that the Defendant appeared via Zoom video conference for this
proceeding.
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“fake pee” in order for the Defendant to pass his drug screens. Ms. O’Grady confirmed
that she spoke with the Defendant by telephone during his incarceration.
Based upon this evidence, the trial court ordered service of the three-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 because the trial court based the revocation and consequences for the
revocation on matters not included in the probation violation warrant. 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.
When a trial court revokes a defendant’s probationary sentence, “the standard of
review is abuse of discretion with a presumption of reasonableness so long as the trial court
places sufficient findings and the reasons for its decisions as to the revocation and the
consequence on the record.” State v. Dagnan, 641 S.W.3d 751, 759 (Tenn. 2022).
Probation revocation involves a two-step analysis in which the trial court must determine
whether a defendant violated the conditions of probation and must then determine the
appropriate consequences for a violation. Jd. at 757. A revocation involves two separate
discretionary decisions: the decision to revoke the probation based on finding a violation
and a separate sentencing decision in which the court can determine the consequences of
the revocation. Jd. At the time of the revocation hearing, the statutory provisions regarding
probation allowed the trial court to “(1) order incarceration for some period of time; (2)
cause execution of the sentence as it was originally entered; (3) extend the defendant’s
probationary period by up to two years; or (4) return the defendant to probation on
appropriate modified conditions.” Jd. at 756 (citing State v. Beard, 189 S.W.3d 730, 735
& n.2 (Tenn. Crim. App. 2005)); T.C.A. § 40-35-308, -310, -311.
A probation revocation is not part of the original criminal prosecution; instead, it is
“remedial rather than punitive.” State v. Hayes, 190 S.W.3d 665, 669 (Tenn. Crim. App.
2005). A violation of probationary terms does not constitute a crime but is merely a
“mechanism which may trigger the revocation of a previously granted probation.’” State
vy. Jackson, 60 S.W.3d 738, 743 (Tenn. 2001) (quoting State v. Painter, 394 N.W.2d 292,
294 (Neb. 1986)). Generally, “a probation revocation hearing is not a ‘trial.’” State v.
Thomas Coggins, No. M2008-00104-CCA-R3-CD, 2009 WL 482491, at *4 (Tenn. Crim.
App., at Nashville, Feb. 25, 2009). “‘Revocation deprives an individual, not of the absolute
liberty to which every citizen is entitled,-but only of the conditional liberty’ provided in the
terms of probation.” Hayes, 190 S.W.3d at 669 (quoting Morrissey v. Brewer, 408 US.
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471, 481 (1972)). Accordingly, in determining revocation, the defendant is subject to
“relaxed rules” regarding evidence; the defendant is not entitled to a jury; and the
defendant’s probation may be revoked on proof by a preponderance of the evidence. Jd.
Because the revocation deprives the accused of only a conditional liberty granted as part
of probation, “[p]robationers are not entitled to receive the full range of due process rights.”
Id. “[The trial court at a probation revocation hearing may consider documentary evidence
that does not meet usual evidentiary requirements.” State v. Walker, 307 S.W.3d 260, 265
(Tenn. Crim. App. 2009); see State v. Moss, 13 S.W.3d 374, 385 (Tenn. Crim. App. 1999)
(“The United States Constitution does not restrict a sentencing judge to consideration of
information received in open court.”). A probationer has no right to confrontation at a
revocation hearing. Walker, 307 S.W.3d at 264-65.
However, because a probationer’s “conditional freedom from incarceration” is at
risk, the accused is entitled to due process at the revocation hearing. State v. Wade, 863
S.W.2d 406, 408 (Tenn. 1993); see Hayes, 190 S.W.3d at 670-71 (while the exclusionary
rule does not apply to revocation proceedings, the exclusion of evidence obtained as a result
of harassment or in a particularly offensive manner is required). Accordingly, “a due
process standard applies in determining the admissibility of a statement made by an out-
of-court declarant at a probation violation proceeding.” Walker, 307 S.W.3d at 265. This
includes “the right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation).” Gagnon v. Scarpelli,
411 USS., 778, 786 (1973); Wade, 863 S.W.2d at 408. This guarantee “clearly establishes
that some right to confrontation exists, but the qualifying “good cause” language reflects
the flexibility that marks these proceedings and suggests that the confrontation requirement
will be relaxed in certain circumstances.’” State v. Steven Todd Andes, No. E2012-01676-
CCA-R3-CD, 2013 WL 3023824, at *4 (Tenn. Crim. App. June 14, 2013) (quoting Wade,
863 S.W.2d at 408). Generally, “a defendant may not be subjected to a revocation upon
evidence he had no opportunity to hear, test by cross-examination or refute by contrary
evidence.” State v. Michael Carnell Jones, No. E2004-02919-CCA-R3-CD, 2005 WL
2572390, at *4 (Tenn. Crim. App. Oct. 13, 2005). Due process further requires a showing
that hearsay evidence is reliable. Wade, 863 S.W.2d at 409 (reversing revocation when the
court did not make a finding that there was good cause to rely on an unidentified laboratory
report and when there was no proof that the report was reliable).
We disagree with the Defendant’s characterization of the trial court’s revocation of
his probation sentence as being based solely on the Defendant’s physical assault of the
victim while she was paralyzed. The probation violation warrant alleged that the
Defendant violated the terms of his probation by using illegal drugs and by having contact
with the victim. The Defendant conceded that he violated probation. The trial court, in
considering the appropriate consequence, then considered the Defendant’s conduct during
his probation sentence before fully revoking the Defendant’s sentence.
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There was ample evidence to support the trial court’s decision to revoke probation
and to order the Defendant to serve his sentence in jail. The probation warrant alleged that
the Defendant violated the terms of his sentence by using drugs, based upon multiple failed
drug screens. The Defendant admitted to the violation. During the hearing to determine
the consequence of the violation, in addition to the Defendant’s admission, the victim
testified that she observed the Defendant using drugs and that he asked her to buy “clean
urine” to submit for his drug testing. Although not alleged in the warrant, this evidence
presented during the consequence phase provided the trial court with information relevant
to the violation and to the proper consequence to be imposed. The probation violation
warrant also alleged that the Defendant had contact with the victim in violation of the terms
of his probation. The Defendant also admitted to this violation. At the hearing to determine
the consequence for the violation, the victim testified about multiple instances of contact
after the probation sentence was in effect, including the phone conversations in jail and in-
person contact. Although the in-person contact was not alleged in the warrant, this
evidence is relevant to the trial court’s determination of the appropriate consequence for
the violation. Giving a presumption of reasonableness to the trial court’s decision choosing
one of the statutory options available to it, we conclude that the trial court did not abuse its
discretion in revoking Defendant’s probation and ordering the Defendant to serve the
sentence in jail.
In our view, it is proper for a trial court to consider the Defendant’s behavior while
on probation in determining the proper consequence for a probation violation. The breadth
and scope of probation violations are relevant as are criminal acts committed after a
probation sentence is granted. See, State v. Fleming, No. E2017-02352-CCA-R3-CD, 2018
WL 6787580, at *3 (Tenn. Crim. App., at Knoxville, Dec. 26, 2018) (citing State v.
Marcus Nigel Davis, No. E2007-02882-CCA-R3-CD, 2008 WL 4682238, at *5 (Tenn.
Crim. App., at Knoxville, Oct. 23, 2008) (consideration of past criminal acts may be
considered in determining “whether the beneficial aspects of probation [are] being
served.”). We agree with the Defendant that the trial court should not consider violations
not alleged in the warrant when considering whether a violation occurred. In this case,
however, the Defendant admitted to the violations, accepting the allegations that he
engaged in illegal drug use at least three times and had contact with the victim at least once.
The Defendant’s guilt as to the violations was already established by his own admission.
After determining the Defendant violated the terms of his probation at least four
times, the trial court, in the consequence phase, considered additional evidence relevant to
the violations to determine whether the Defendant should return to probation, serve a
period of the sentence in jail, or serve the entirety of the sentence in jail. We note that, at
the hearing to determine the consequence, the Defendant did not object to the victim’s
testimony and cross-examined the victim. The trial court considered the scope and breadth
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of the violations to conclude that because the Defendant repeatedly violated both
Tennessee law and the terms of his probation sentence, he was not a good candidate for
reinstatement to the probation sentence. Thus, we conclude that the trial court did not
abuse its discretion when it determined that the Defendant should serve his sentence
because he violated the terms of his probation sentence multiple times.
The Defendant repeatedly engaged in illegal drug use during his probation sentence.
Additionally, the Defendant had contact with the victim of the crime for which he was
granted a probation sentence, exhibiting a pattern of difficulty with compliance.
Accordingly, we conclude that the trial court correctly found by a preponderance of the
evidence that the Defendant violated the conditions 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
Based on the foregoing reasoning and authorities, we affirm the trial court’s
judgment.
ROBERT W. WEDEMEYER, JUDGE