STATE OF TENNESSEE v. NAPOLEON EMMANUALE PERSON

11/25/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 4, 2020 Session
STATE OF TENNESSEE v. NAPOLEON EMMANUALE PERSON
Appeal from the Circuit Court for Coffee County
No. 38042, 43867 L. Craig Johnson, Judge
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No. M2019-02159-CCA-R3-CD
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Napoleon Emmanuale Person, Defendant, appeals from the trial court’s judgment
revoking his probation and placing his original sentences into effect. Discerning no error,
we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.
Zachary L. Smith, (on appeal), Manchester, Tennessee; John Nicoll, District Public
Defender; and Trenena Stanley (at hearing), Assistant District Public Defender, for the
appellant, Napoleon Emmanuale Person.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Craig Northcott, District Attorney General; and Jennifer
Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
On October 26, 2011, Defendant pled guilty to attempt to commit murder in the
second degree and was sentenced as a Range I standard offender to eight years with one
year to be served in split confinement in the Coffee County Jail, followed by seven years
on probation. Defendant was released from jail and began serving his probation on
March 8, 2012.
On April 8, 2013, the trial court issued a violation of probation warrant alleging
that Defendant violated the conditions of probation by being cited for driving on a
suspended license; failing to obtain employment and failing to provide documentation
that he was seeking employment; testing positive on two occasions for marijuana; failing
to pay toward court costs and fines; and failing to report for the months of September,
October, and November 2012. On June 5, 2013, the trial court revoked Defendant’s
probation and ordered Defendant to serve sixty days in the Coffee County Jail and, upon
release, to be returned to probation.
The trial court issued a second violation of probation warrant on January 21, 2015,
alleging that Defendant violated the conditions of probation by receiving new charges of
second offense driving on a suspended license; failing to report the arrest; making an
untruthful statement about contact with law enforcement; testing positive on December 3,
2014, for marijuana, cocaine, and opiates and on December 11, 2014, for marijuana and
cocaine; and failing to pay probation fees as ordered. Defendant failed to appear for his
June 3, 2015 revocation hearing, and a capias was issued for his failure to appear.
An amended probation warrant was filed on November 3, 2015, alleging that
Defendant had active warrants in Bedford County for aggravated robbery and aggravated
burglary, active warrants in Davidson County for aggravated assault, and a capias in
Coffee County for failure to appear. Final forfeiture was taken on Defendant’s bond, and
the Coffee County Grand Jury indicted Defendant for failure to appear.
On November 8, 2017, Defendant pled guilty to failure to appear in Case No.
43867 and was sentenced to two years to be served consecutively to his eight-year
sentence in Case No. 38042. On the same day, the trial court revoked Defendant’s
probation and ordered him to serve thirty days in jail. He was released on time served
and transported to Bedford County where he faced new charges.
On October 31, 2018, the trial court issued a third violation of probation warrant
alleging that Defendant failed to report a change of address and that his whereabouts
were unknown. He was arrested in Davidson County on April 3, 2019, for new charges
of domestic assault; resisting arrest; criminal impersonation; felon in possession of a
weapon; and misdemeanor theft.
A fourth violation of probation was issued on April 17, 2019, based on the
Davidson County charges. Defendant was transferred to Coffee County. While in jail in
Coffee County, Defendant was arrested and charged with assaulting an inmate on April
19 and on May 9, 2019. These charges resulted in the court issuing an amended
probation violation warrant on May 17, 2019. Defendant was again arrested and charged
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with assaulting an inmate on July 10, 2019, and with vandalism for damaging the
sprinkler system inside his cell on July 12, 2019. These charges resulted in the court
issuing another amended probation violation warrant on July 24, 2019.
On September 18, 2019, Defendant appeared in court for a probation violation
hearing. The State called Erin Smith, a Davidson County Probation Officer, who began
supervising Defendant’s probation in May 2018. Defendant tested positive for marijuana
and cocaine when she initially met with him. She scheduled two appointments for
Defendant to meet with a forensic social worker to address his drug use. Defendant
failed to attend either appointment. Officer Smith said that Defendant “was inconsistent
with reporting” from May until the warrant was issued. Officer Smith said that “after
July [2018], [she] just couldn’t find him.” On October 31, 2018, she filed a violation
report and requested that a warrant issue.
The State next called Metropolitan Nashville Police Department Officer Khalid
Abbady who arrested Defendant for the Davidson County charges. Officer Abbady said
that he approached Defendant to ask him for identification because he looked remarkedly
similar to Defendant’s cousin, who had eight outstanding warrants. Defendant gave
Officer Abbady two different names and dates of birth, all of which turned out to be false.
When Defendant finally provided his correct name, Officer Abbady found that there was
an outstanding warrant for Defendant. When he attempted to place Defendant under
arrest, Defendant resisted and attempted to flee. When Defendant was finally taken into
custody, Officer Abbady conducted a search incident to arrest and found a handgun in
Defendant’s pocket. Officer Abbady ran the gun’s serial number through NCIC and
determined that the gun was stolen.
The State called Coffee County Sheriff’s Department Deputy David Barrera as its
final witness. Deputy Barrera stated that Defendant had been involved in three assaults
and one vandalism while housed at the Coffee County Jail, all of which were captured on
the jail’s video surveillance system. He said that Defendant had been both an aggressor
and a victim and that the Sheriff’s Department had taken steps to separate the combatants
into different pods. He said that the third assault occurred when Defendant “popped” his
cell door, charged out, and attacked another inmate.
Defendant made an allocution. He said that, upon his release in May 2012, he
joined the “Living Word International Church of God of Christ” and became a faithful
member and was baptized. He obtained employment at Allied Waste and Waste
Management but left that job for a better job in construction because of the housing
boom. He stated that he was married and had three children. He said that, on May 5,
2013, he renounced his gang membership and that the fights in jail were related to his
renunciation.
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At the conclusion of the revocation hearing, the trial court stated that it appreciated
what Defendant had accomplished since he first pled guilty but that he had “three bites
out of the apple.” It said that, even though Defendant was only two months away from
his probation ending on his eight-year sentence, his “conduct” on probation had “for the
most part been horrendous.” The trial court stated that it was fully revoking Defendant’s
probation and placing his effective ten-year sentence into effect. The court entered its
revocation order on September 24, 2019, finding that Defendant had violated probation
by absconding; testing positive for marijuana and cocaine; failing to report; being
involved in criminal activity in Davidson County by resisting arrest, possessing a stolen
handgun as a convicted felon, and criminal impersonation; and in Coffee County by
assaulting other inmates and by vandalizing county property. On October 21, 2019, the
trial court filed an amended revocation order, correcting only the case number for
Tennessee Department of Correction purposes.
On November 6, 2019, the trial court granted defense counsel’s motion to
withdraw and appointed new counsel. The court granted new counsel thirty days to
appeal. Notice of appeal was filed on December 6, 2019.
Analysis
On appeal, Defendant claims that the trial court abused its discretion in revoking
his probation and in relying, in part, on new charges that were later dismissed. The State
argues that the trial court properly exercised its discretion in revoking Defendant’s
probation. We agree with the State.
We will first address the timeliness of the notice of appeal. A notice of appeal
must be filed within thirty days of entry of judgment. Tenn. R. App. P. 4(a). Because a
trial court is without authority to extend the time for filing a notice of appeal, Defendant’s
notice of appeal was untimely. Tammy Hicks v. State, No. M2006-01297-CCA-R3-PC,
2007 WL 4245087, at *3 (Tenn. Crim. App. Dec. 4, 2007) (citing Tenn. R. App. P. 2.).
However, we waive timely filing of the notice of appeal in the interest of justice. See
Tenn. R. App. P. 4.
Upon a finding by a preponderance of the evidence that a defendant has violated a
condition of probation, a trial court may revoke probation and order the imposition of the
original sentence. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005)
(citing Tenn. Code Ann. §§ 40-35-310(a), -311(e)(1) (2019)). We will not disturb the
trial court’s ruling on appeal absent an abuse of discretion. State v. Shaffer, 45 S.W.3d
553, 554 (Tenn. 2001). To establish an abuse of discretion, a defendant must show that
there is “no substantial evidence” in the record to support the trial court’s determination
that a violation of probation has occurred. Id. (citing State v. Harkins, 811 S.W.2d 79,
82 (Tenn. 1991)).
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Defendant claims that the trial court abused its discretion by relying on pending
charges against him in Davidson County and Coffee County. “While we recognize that a
new arrest and pending charges are proper grounds on which a trial court can revoke a
defendant’s probation, a trial court may not rely on the mere fact of an arrest or an
indictment to revoke a defendant’s probation.” State v. Calvin Austin, No. W2005-
02592-CCA-R3CD, 2006 WL 4555240, at *2 (Tenn. Crim. App. Aug. 9, 2006) (citing
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). The State in this case did not simply
rely on the “mere” charges against Defendant. The State called Officer Abbady to
provide factual details about the pending Davidson County charges and Deputy Barrera
to provide factual details concerning the charges Defendant incurred while incarcerated
in Coffee County. The State also called Officer Smith, who began supervising
Defendant’s probation in May 2018. Officer Smith said that Defendant was inconsistent
in reporting and that “after July [2018], [she] just couldn’t find him.”
The trial court found by a preponderance of the evidence that Defendant violated
the conditions of probation, and based on that finding, the trial court “had the right” to
revoke Defendant’s probation and to “cause [D]efendant to commence the execution of
the judgment as originally entered.” Tenn. Code Ann. § 40-35-311(e)(1)(A) (2019).
There was substantial evidence to support the trial court’s decision to fully revoke
Defendant’s probation and to order Defendant to serve his effective ten-year sentence in
incarceration. The trial court did not abuse its discretion.
Conclusion
The judgment of the trial court is affirmed.
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ROBERT L. HOLLOWAY, JR., JUDGE
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