State of Tennessee v. Chad M. Varnell

07/01/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 26, 2021
STATE OF TENNESSEE v. CHAD M. VARNELL
Appeal from the Criminal Court for Knox County
No. 107283 Steven Wayne Sword, Judge
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No. E2020-01352-CCA-R3-CD
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The defendant, Chad M. Varnell, appeals the order of the trial court revoking his probation
and ordering him to serve his original eight-year sentence in confinement. Upon our review
of the record and the parties’ briefs, we reverse the judgment of the trial court and remand
for a new hearing.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
and Remanded
J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and CAMILLE R. MCMULLEN, JJ., joined.
Robin Vargas, Blaine, Tennessee, for the appellant, Chad M. Varnell.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Charme Allen, District Attorney General; and Hector Sanchez, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On February 18, 2016, the defendant, Chad M. Varnell, pleaded guilty to robbery
and received an eight-year sentence, suspended to supervised probation after serving one
year in confinement. The terms of probation required, in part, the defendant to report any
changes in residence to his probation officer, to not use or possess any illegal drugs, and to
follow all instructions given by his probation officer.
On January 13, 2017, a violation warrant was issued, alleging the defendant was
discharged from the Steps program due to non-compliance, failed to inform his probation
officer of his new address, and failed to report to his probation officer on January 10-11,
2017. The warrant was amended on August 3, 2017 to include the defendant’s recent arrest
for felony escape. Following a hearing, the defendant was ordered to receive treatment at
the Day Reporting Center beginning on October 6, 2017.
On March 5, 2018, the defendant tested positive for methamphetamine.
Additionally, he stopped reporting to both his probation officer and the Day Reporting
Center, and a violation warrant was issued on April 27, 2018. A revocation hearing was
held, and the defendant was ordered to complete the EM Jellinek residential program and
resume treatment at the Day Reporting Center. However, the defendant absconded from
the Jellinek halfway house following a positive drug screen, and a violation warrant was
issued on November 30, 2018. According to an amended violation warrant, the defendant
had also been arrested in Sevier County on September 5, 2019, and charged with evading
arrest, possession of a Schedule I controlled substance, and possession of drug
paraphernalia. A revocation hearing was held on August 14, 2020.
At the revocation hearing, no evidence was presented. While defense counsel
indicated the defendant was willing to stipulate to the probation violations if he received
permission to apply to the Community Alternative to Prison Program (“CAPP”), the
defendant did not testify, and no stipulation was actually entered because it was determined
by the trial court and parties that the defendant did not qualify for CAPP. Defense counsel
acknowledged the defendant was arrested in Sevier County but stated the defendant had
“settle[d] those cases.” At the conclusion of the hearing, the trial court revoked the
defendant’s probation and reinstated his original eight-year sentence in the Tennessee
Department of Correction. On October 7, 2020, this Court granted the defendant’s motion
to late-file his notice of appeal.
Analysis
Initially, although not raised by the defendant, we find the trial court failed to
conduct a full and proper hearing, and therefore, remand the matter for a new hearing. At
the revocation hearing, the State failed to present any evidence that the defendant violated
his probation, and the defendant did not personally plead guilty to any probation violations.
The State had an opportunity to present proof of the grounds alleged in the probation
violation warrant, but failed to do so. It appears from the transcript of the hearing that the
parties had previously discussed the defendant stipulating to the violations in exchange for
permission to apply to CAPP. However, because such a stipulation was not actually
entered, the State was required to present sufficient proof supporting the alleged violations
to “allow[] the trial court to make a conscientious and intelligent judgment.” Harkins, 811
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S.W.2d at 82 (citing State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)).
However, the hearing consisted of nothing more than a discussion among the attorneys and
the trial court as to whether the defendant was eligible for CAPP and a general discussion
concerning the bases of the violation warrant. Accordingly, the record before us does not
support revocation of the defendant’s probation, and we remand the case to the trial court
for a new revocation hearing.
Because the issue on appeal relates to an evidentiary issue and what can or should
be considered by the trial court during the hearing on remand, we will address the
defendant’s claim. On appeal, the defendant argues the trial court erred in ordering him to
serve his original sentence in confinement. Specifically, the defendant argues the trial court
failed to “seek an updated validated risk and needs assessment to assist the trial court in
making its determination.” The State contends the trial court properly exercised its
discretion in revoking the defendant’s probation and ordering him to serve his original
sentence in confinement.
A trial court has statutory authority to revoke a suspended sentence upon finding
that the defendant violated the conditions of the sentence by a preponderance of the
evidence. Tenn. Code Ann. § 40-35-310, -311; see State v. Clyde Turner, No. M2012-
02405-CCA-R3-CD, 2013 WL 5436718, at *2 (Tenn. Crim. App. Sept. 27, 2013). “The
trial judge has a duty at probation revocation hearings to adduce sufficient evidence to
allow him to make an intelligent decision.” State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991)).
If a violation is found by the trial court during the probationary period, the time within
which it must act is tolled and the court can order the defendant to serve the original
sentence in full. Tenn. Code Ann. § 40-35-310; see State v. Lewis, 917 S.W.2d 251, 256
(Tenn. Crim. App. 1995). To overturn the trial court's revocation, the defendant must show
the trial court abused its discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). “In
order to find such an abuse, 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. (citing
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)).
The defendant contends that after he provided information to the trial court
regarding his issues with substance abuse, the trial court was required to obtain an updated
risk and needs assessment to evaluate whether the defendant was eligible to participate in
CAPP or another alternative to prison. Tennessee Code Annotated section 40-35-311(f)
provides that “[t]he court may consider the results of an offender’s validated risk and needs
assessment in determining the appropriate disposition of the probation violation charge and
may request an updated validated risk and needs assessment be performed” (emphasis
added). “[T]he decision to consider the validated risk and needs assessment, as well as the
decision to request an updated assessment, is discretionary.” State v. Charles E. Mason,
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Jr., No. E2018-01310-CCA-R3-CD, 2019 WL 3992473, at *5 (Tenn. Crim. App. Aug. 23,
2019), no perm. app. filed. Additionally, at the revocation hearing, the defendant never
requested the trial court to order an updated assessment or to rely on such an assessment.
Accordingly, the trial court did not abuse its discretion in failing to order an updated risk
and needs assessment.
Conclusion
For the foregoing reasons, the judgment of the trial court is reversed, and the case
is remanded for further proceedings consistent with this opinion.
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J. ROSS DYER, JUDGE
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