State of Tennessee v. Gregory L. Moody

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
August 2, 2016 Session
STATE OF TENNESSEE v. GREGORY L. MOODY
Appeal from the Circuit Court for Dyer County
No. C00-70B, C00-409 R. Lee Moore, Jr., Judge
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No. W2016-00425-CCA-R3-CD – Filed September 15, 2016
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The trial court found that the Defendant, Gregory L. Moody, violated the conditions of
his probation when he was arrested and convicted of multiple crimes in North Carolina
and failed to appear at his first meeting with his probation officer. The Defendant asserts
that his due process rights were violated by the trial court because of a delayed hearing on
the violation of probation and lack of appointed counsel, and he asserts he is entitled to
sentencing credits. After a thorough review of the record, we affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.
James E. Lanier, District Public Defender, and H. Tod Taylor, Assistant District Public
Defender, for the appellant, Gregory L. Moody.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State
of Tennessee.
OPINION
FACTS AND PROCEDURAL HISTORY
The Defendant, Gregory L. Moody, pled guilty on January 3, 2001, to one count
of burglary and one count of failure to appear. He received a sentence of four years for
the burglary conviction and a sentence of two years for the failure to appear conviction.
The Circuit Court for Dyer County aligned the sentences consecutively for a total
effective sentence of six years. The trial court, however, suspended the burglary sentence
after ten months‟ imprisonment and completely suspended the failure to appear sentence.
The Defendant‟s probation officer, Rebecca Cashion, issued a violation of
probation report for the Defendant in July 2001, after he failed to report to his probation
officer and submit a required DNA specimen. Ms. Cashion issued a second violation of
probation report for the Defendant in December 2003 based on the allegation that the
Defendant left the State without informing his probation officer and that he was
subsequently arrested in North Carolina.
While serving his sentence for his 2004 conviction in North Carolina, the
Defendant sent notice of his sentence to the District Attorney General. He sent a letter to
the Dyer County Courthouse informing the court of his location, requesting the name of
the judge dealing with his violation of probation matter, waiving his right to counsel and
right to appear, and requesting that his violation of probation sentence run concurrently
with his time incarcerated in North Carolina. After receiving this letter, the trial judge
entered an order holding that the Defendant could not, without infringing on due process,
be brought before the court properly until he was released. The Defendant then sought
appointment of counsel from the court for his violation of probation matter. The trial
court treated the Defendant‟s request as a motion to be stayed until the Defendant was
before the court.
After being moved to a new jail in North Carolina, the Defendant filed a petition
for writ of habeas corpus asserting that his due process rights were violated by an alleged
conflict of interest between his attorneys from two unrelated convictions from 1988 and
1999. The trial court dismissed the petition, holding that the petition was irrelevant to the
detainer action and did not meet the requirements for habeas corpus relief.
In its 2015 order finding the Defendant in violation of his probation, the trial court
made findings of fact regarding the Defendant‟s history of incarceration. According to
the order, in 2006, the State of Tennessee requested a transfer of the Defendant, which
North Carolina granted. The trial court appointed counsel, and the Defendant posted bail.
The Defendant then failed to appear in court and was indicted for failure to appear that
same year.
The trial court found that by 2008, the North Carolina Department of Corrections
gained custody of the Defendant again. The Defendant provided the District Attorney
General with notice of his location. The Defendant filed another letter with the Circuit
Court of Dyer County moving for dismissal or concurrent sentencing for the violation of
probation with his North Carolina sentence. The court did not enter an order in response.
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After several months, the Defendant again requested appointment of counsel. Later that
year, the State of Tennessee sought to regain custody of the Defendant. The State of
North Carolina, however, released the Defendant eight days later.
By 2012, the Defendant was again in the custody of the North Carolina
Department of Corrections. The State of North Carolina then released the Defendant to
the custody of Dyer County, Tennessee, in 2013. He was later released on bond.
On August 3, 2015, the Defendant‟s violation of probation revocation hearing
finally occurred. At the hearing, the Defendant admitted that he understood that leaving
Tennessee without informing his probation officer was a violation of probation. The
Defendant, however, testified that he believed he was entitled to sentencing credits
because of time served in North Carolina for an unrelated conviction. He testified that he
received a harsh sentence in a high-security facility in North Carolina due to his
outstanding probation revocation matters in Tennessee for otherwise minimum-security
offenses. Further, he testified that North Carolina Department of Corrections kept him in
jail for about twenty days after the end of his sentence while awaiting extradition to
Tennessee for determination of the present violation of probation matter. The trial judge
held at this hearing that the Defendant violated the terms and conditions of his probation.
The trial judge then ordered the parties to submit memoranda to the court for
determination of the issue of sentencing credits.
After considering both the Defendant‟s and the State‟s memoranda on sentencing
credits and constitutional violations, the trial court found “no merit to the defendant‟s
claim of violation of any of [the Defendant‟s] due process rights nor is the defendant
entitled to [sentencing] credit as claimed.” The Defendant now appeals.
ANALYSIS
The trial court summarized the Defendant‟s argument as follows:
The defendant now argues that because the District Attorney General and
his probation officers either had knowledge of his incarceration in North
Carolina or should have known about it so that he should be given credit on
his probation violations in Tennessee while he was serving his North
Carolina sentences. He argues that [the] failure of [the trial court] to accept
his request for an attorney and a disposition of his case while he was
serving a sentence in North Carolina, deprived him of his right to speedy
trial. In the alternative, he seeks jail credit from October 12, 2004 through
February 16, 2006; from December 19, 2008 through November 18,
2009[;] and from October 12, 2012 through August 29, 2013.
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I. Right to a Speedy Trial
The Defendant claims he is entitled to relief based on a right to a speedy trial.
“[T]he Supreme Court enunciated the following four-factor balancing test for courts to
apply when evaluating a speedy trial claim: (1) the length of the delay; (2) the reason for
the delay; (3) the defendant‟s assertion of the right; and (4) the prejudice suffered by the
defendant from the delay.” State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001) (citing
Barker v. Wingo, 407 U.S. 514, 530 (1972)).
Although the Defendant is correct that a speedy trial inquiry is generally triggered
because of a delay exceeding one year, the delay, while considerable, is reasonable in
light of the Defendant‟s incarcerations, absence from the jurisdiction, and repeated
disappearances. We acknowledge that in this case, the delay between the initial
violations in 2001 and 2003 and the hearing in 2015 was considerable.
Nevertheless, the reason for the delay is directly attributable to the Defendant‟s
repeated criminal misconduct. The Interstate Compact on Detainers does not generally
apply to revocation of probation. See State v. Warren, 740 S.W.2d 427, 427 (Tenn. Crim.
App. 1986); Blackwell v. State, 546 S.W.2d 828, 829 (Tenn. Crim. App. 1976) (“A
careful study of the Interstate Compact on Detainers convinces us that it applies only to
an untried criminal offense which is the basis of a charge laid in an indictment,
information, or complaint.”). Based on this concept, the District Attorney represented to
this court that he was not able to “take action on the detainer on a probation violation.”
Here, the Defendant was incarcerated on three separate occasions in North Carolina after
his initial violation of probation. Additionally, the Defendant left the State of Tennessee
on three occasions without permission from his probation officer after the imposition of
his probation. The Defendant also absconded from the hearing on the probation violation
which was scheduled in 2006, after he had been released on bond. The reason for the
delay is simple: the Defendant repeatedly fled the jurisdiction of the State of Tennessee.
The Defendant argues that he asserted his right to a speedy trial in a letter to the
Dyer County Courthouse in 2004. In the letter, the Defendant requests to be appointed
counsel by the court. The Defendant argues that Tennessee Code Annotated section 40-
14-101 combines the right to a speedy trial and right to counsel, and that, therefore, the
Defendant asserted his right to a speedy trial. T.C.A. § 40-14-101 (“In all criminal
prosecutions, the accused is entitled to a speedy trial and to be heard in person and by
counsel.”). The Defendant does not cite additional authority for this proposition.
Further, the State correctly noted that the Defendant did not explicitly assert his right to a
speedy trial until nearly three years after he was appointed counsel. The Simmons court
held that this factor is especially relevant when “an accused [] is unaware of pending
charges.” Here, the Defendant was aware of the charges. The Defendant had appointed
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counsel for three years before explicitly asserting his right to a speedy trial. Far from
attempting to accelerate the resolution of his probation revocation, the Defendant
absconded from the custody of the State of Tennessee in 2006, and he again disappeared
after the State of North Carolina mistakenly released him in 2009.
Finally, the Defendant acknowledged the violation of his probation and does not
assert that he was prejudiced in preparing for the hearing on the violation. See Blackwell,
546 S.W.2d at 830. While the Defendant may have suffered some changes in the
conditions of his imprisonment in North Carolina due to his outstanding violation
warrant, the Defendant was ultimately responsible for much of the delay in bringing the
proceedings, and he was not prejudiced in presenting a defense to the violation
allegations.
The Defendant relies on Allen v. State, 505 S.W.2d 715, 718 (Tenn. 1974) to
support his contention that his right to a speedy trial on the revocation warrant was
violated. The Tennessee Supreme Court in Allen stated, “[W]e expressly hold that a
probation revocation proceeding is a continuation of the criminal prosecution, and as
such, the defendant in the instant case has a constitutional right to a speedy trial on „the
offense of violation of the terms of probation.‟” Allen, 505 S.W.2d at 718.
In Allen, the defendant was serving a twenty-seven year sentence from Davidson
County in a Tennessee penitentiary. As a result of the defendant‟s Davidson County
conviction, a revocation warrant was issued in Marshall County where the defendant was
on probation. No further action was taken on the revocation warrant until over two and
one-half years later when the defendant was about to be considered for parole on the
Davidson County conviction. At that time, a detainer request was filed by the State at the
state penitentiary setting the hearing date in the revocation warrant. Upon the
defendant‟s return to Marshall County for the revocation hearing, the defendant was
finally served with the revocation warrant. The court concluded that the delay in having
a hearing on the probation violation warrant violated the defendant‟s right to a speedy
trial. The major distinction between the Allen case and the case at bar is that the
defendant in Allen was incarcerated in the State of Tennessee and was what the court
considered to be “readily accessible” for a hearing on the revocation warrant. Allen, 505
S.W.2d at 716.
The present case is more akin to Blackwell, 546 S.W.2d 828, wherein this court
pointed out a significant difference between Allen and a case where a defendant is
incarcerated in another state. In Blackwell, the defendant was incarcerated in Florida on a
robbery conviction and the hearing on his probation revocation was not had until he was
released from Florida custody. This court stated that “the delay in [Blackwell] was
brought about by the appellant‟s own misconduct that resulted in his incarceration in the
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Florida penitentiary.” Blackwell, 546 S.W.2d at 830. We ultimately held that the delay
that the defendant brought upon himself by his own misconduct did not result in a
violation of his right to a speedy trial. Id.
The Defendant attempts to distinguish Blackwell by asserting that the Blackwell
trial judge did not know of the defendant‟s whereabouts, whereas here, the trial judge was
on notice of the Defendant‟s location: North Carolina prisons. The Defendant is not
entitled to relief on this distinction because the Blackwell court was aware of the
defendant‟s whereabouts. Blackwell, 546 S.W.2d at 829 (noting that the State issued a
detainer for the defendant less than one year after his Florida guilty plea and more than a
year before the defendant‟s release from the Florida prison).
This case presents substantially the same situation as Blackwell dealing with an
interstate prisoner. Here, the State could not obtain jurisdiction upon the defendant until
he was released from North Carolina, and he was not available for the revocation hearing
until that time. The Defendant fled the State of Tennessee for the State of North Carolina
while out on bond. Even if we accept the Defendant‟s argument that his 2004 letter to the
trial court should be interpreted as a demand for a speedy trial, the Defendant‟s repeated
and wrongful departures from the trial court‟s jurisdiction constitute waiver of the
demand. We hold that the defendant was not deprived of his right to a speedy trial and
that any delay was a result of his own misconduct.
II. Right to Counsel
The Defendant argues that the trial court deprived him of his right to counsel for
failing to provide him with counsel while imprisoned in North Carolina. As discussed
earlier, the State of Tennessee was unable to extradite the Defendant. Further, the
Defendant failed to submit authority to support his contention that he should have been
provided with counsel before he was properly brought before the trial court. We hold
that the Defendant is not entitled to relief based on his right to counsel. A probationer is
entitled to counsel upon request when shown that “based on a timely and colorable claim
… that, even if the violation … is uncontested, there are substantial reasons which
justified or mitigated the violation and make revocation inappropriate, and that the
reasons are complex or otherwise difficult to develop or present.” Gagnon v. Scarpelli,
411 U.S. 778, 790 (1973). Here, the violation is uncontested; the defendant admitted that
his North Carolina convictions were violations of his probation in Tennessee. The
Defendant offered no justification for the violations. The Defendant offered no
mitigating reasons for the violations. The trial court did, in fact, immediately grant his
request for appointed counsel upon being brought before the court.
III. Sentencing Credits
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Although the Defendant raised the issue of sentencing credits, he failed to submit
to this court an argument supported by legal precedent on this issue. This court requires
that parties support their arguments with legal citations and citations to the record, or we
consider them waived. Tenn. Ct. Crim. App. R. 10(b). We hold that the Defendant,
thus, waived this issue.
CONCLUSION
Based upon the foregoing reasons, we affirm the judgment of the trial court.
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JOHN EVERETT WILLIAMS, JUDGE
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