State of Tennessee v. Kyle Roger Stewart

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 11, 2015
STATE OF TENNESSEE v. KYLE ROGER STEWART
Appeal from the Criminal Court for White County
No. 5500 Leon C. Burns, Jr., Judge
No. M2014-01309-CCA-R3-CD - Filed May 18, 2015
Defendant, Kyle Roger Stewart, appeals from the trial court’s revocation of probation. On
March 21, 2012, Defendant pleaded guilty to three counts of aggravated burglary. Pursuant
to the plea agreement, Defendant received concurrent sentences of four years with 180 days
to be served in confinement and the balance to be suspended on probation. Defendant also
agreed to pay $17,875.00 in restitution to the victims. On December 19, 2013, a “Probation
Violation Report” was filed, alleging that Defendant had violated the conditions of his
probation by failing to report a change in his residence, failing to report to his probation
officer, and failing to pay restitution as ordered. Following a probation revocation hearing,
the trial court revoked Defendant’s probation and ordered Defendant to serve his sentences
in confinement. Defendant appeals and asserts that the trial court denied him procedural due
process by failing to make adequate findings regarding the evidence supporting his probation
revocation. Defendant also asserts that the trial court’s decision to revoke probation and
order Defendant to serve his sentence does not comply with the sentencing principles.
Having reviewed the record before us and the briefs of the parties, we affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which R OBERT L.
H OLLOWAY, J R. and T IMOTHY L. E ASTER, JJ., joined.
Brandon S. Griffin, Sparta, Tennessee, for the appellant, Kyle Roger Stewart.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Randall A. York, District Attorney General; and Philip Hatch, Assistant District Attorney
General, for the appellee, the State of Tennessee.
OPINION
Probation revocation hearing
Probation officer Teresa Autry testified that Defendant was placed on probation on
March 21, 2012. She testified that one condition of Defendant’s probation was for him to
make restitution payments. Ms. Autry testified that Defendant had not paid any amount
towards restitution. She testified that Defendant “was supposed to bring those receipts in to
me, and I have no verification.” She also testified that Defendant’s address changed on May
17, 2013, and that he had stopped reporting. She testified that before Defendant stopped
reporting, he called “periodically” and told her that he missed his appointment “due,
supposedly, to work.” Ms. Autry testified that her supervisor, Donnie Webb, took over her
responsibilities while she was on medical leave for a period of time during her supervision
of Defendant’s probation.
Defendant testified that he made restitution payments in the amount of $50.00 each
in January, February, March, and April 2013. Defendant testified that he attempted to meet
with Mr. Webb in June 2013, while Ms. Autry was on medical leave. He testified, “I showed
up, I had a friend, he took me, took pictures. I slid a note under the door and told him to
contact me, because the door was locked.” He testified that his phone calls and text
messages were not answered. On cross-examination, Defendant acknowledged that he failed
to report in July, August, September, and October 2013.
At the conclusion of the hearing, the trial court made the following findings of fact:
In March of 2012, you [pleaded guilty, then you] paid to the clerk
four months in 2013, and nobody’s seen you before that time or after that
time, in May 2013.
You’ve been on probation since 2012, I guess, and walked off in
2013. And then you’ve got this excuse, said, “Well, I called her and texted
her, and she never responded back.”
I’d be much more impressed if there had been evidence of having
gone to the probation officer, have gone to even Cookeville, or whatever,
to make an effort to find somebody. But you just walked away.
....
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Three aggravated burglaries are pretty serious offenses. So, based
on the allegation that he’s been missing since May of 2013, and hearing no
proof that he’s made any reasonable efforts to demonstrate to the probation
department his whereabouts, I’d find him in violation to serve his sentence.
Analysis
Defendant contends that he was not afforded due process because the trial court failed
to make sufficient findings of fact. Defendant also asserts that the trial court’s decision to
revoke probation and order Defendant’s sentence into effect violate the principles of
sentencing.
A trial court is granted broad authority to revoke a suspended sentence and to reinstate
the original sentence if it finds by the preponderance of the evidence that the defendant has
violated the terms of his or her probation and suspension of sentence. T.C.A. §§ 40-35-310,
-311. The revocation of probation lies within the sound discretion of the trial court. State
v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997); State v. Mitchell,
810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse of discretion in a
probation revocation case, “a defendant must demonstrate ‘that the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the
conditions of probation has occurred.’” State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App.
1994) (quoting State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)).
A defendant at a probation revocation proceeding is not entitled to the full array of
procedural protections associated with a criminal trial. See Black v. Romano, 471 U.S. 606,
613 (1985); Gagnon v. Scarpelli, 411 U.S. 778, 786-90 (1973). However, such a defendant
is entitled to the “minimum requirements of due process,” including: (1) written notice of the
claimed violation(s) of probation; (2) disclosure to the probationer of evidence against him
or her; (3) the opportunity to be heard in person and to present witnesses and documentary
evidence; (4) the right to confront and cross-examine adverse witnesses (unless good cause
is shown for not allowing confrontation); (5) a neutral and detached hearing body, members
of which need not be judicial officers or lawyers; and (6) a written statement by the
fact-finder regarding the evidence relied upon and the reasons for revoking probation.
Gagnon, 411 U.S. at 786; Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Pursuant to State
v. Liederman, 86 S.W.3d 584, 589 (Tenn. Crim. App. 2002), where the transcript indicates
that the trial court made oral findings at the conclusion of the probation revocation hearing
regarding both the grounds for revocation and the reasons for the court’s finding, the
requirement of a “written statement” is satisfied.
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Defendant asserts that this case is analogous to State v. George P. Fusco, No. M2013-
00991-CCA-R3-CD, 2014 WL 296012 (Tenn. Crim. App., Jan. 28, 2014), no perm. app.
filed, in which a panel of this court reversed the trial court’s revocation of probation and
remanded the case “for entry of a written order detailing the evidence [the trial court] relied
upon and the reasons for revoking appellant’s probation.” In that case, the record reflected
“that, in two paragraphs, the trial judge noted his concern with the exacting conditions of
appellant’s probation but also noted that appellant was required to be in strict compliance
with those conditions.” However, the trial court “made no other findings of fact regarding
what it relied on and the reasons for revoking appellant’s probation.” Id. at *4.
Like the trial court in George P. Fusco, here the trial court did not make any written
findings but made oral findings on the record. Unlike the court in George P. Fusco,
however, the trial court’s findings, although brief, state its reasons for revoking Defendant’s
probation. The trial court found that Defendant made four restitution payments in 2013 and
that Defendant had failed to report or make restitution payments since May 2013. The trial
court found that there was “no proof [presented] that [Defendant had] made any reasonable
efforts to demonstrate to the probation department his whereabouts[.]” We conclude that the
trial court’s findings in this case sufficiently state the trial court’s reasons for revoking
probation, that Defendant failed to report to his probation officer since May, 2013, and
therefore allow for appellate review.
Defendant also asserts that the trial court failed to consider the principles of
sentencing before ordering Defendant to serve his sentence, and Defendant suggests that the
trial court should have considered other available sentencing options. This court has stated
that “while consideration of sentencing principles is mandatory in determining a defendant’s
original sentence, ‘reference to these principles is not necessary in determining the
appropriate sanction following a revocation of probation.’” State v. Randy Tyrone Crawford,
No. M2000-02358-CCA-R3-CD, 2001 WL 881368, at *3 (Tenn. Crim. App., Aug. 7, 2001),
perm. app. denied (Tenn., Jan. 14, 2002) (quoting State v. Howard Luroy Williamson, Jr.,
No. 02C01-9507-CC-00201, 1996 WL 551793, at *2 (Tenn. Crim. App., Sept. 30, 1996)).
Once 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, 647 (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. State v. Shaffer,
45 S.W.3d 553, 554 (Tenn. 2001). In order 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.” Id.
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The record shows the trial court considered Defendant’s four payments of restitution
before May 2013, and his failure to report after May 2013. The court noted that Defendant
had not made reasonable efforts to report to his probation officer as was a condition of his
probation. The evidence does not preponderate against the trial court’s finding that a
probation violation occurred, and the trial court did not abuse its discretion in ordering
Defendant’s sentences be placed into effect as such action was within the court’s authority.
See T.C.A. § 40-35-310, -311(e).
For the foregoing reasons we affirm the judgment of the trial court.
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THOMAS T. WOODALL, PRESIDING JUDGE
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