State v. Roderick S. Williams

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1999 May 14, 1999

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9712-CC-00594 ) Appellee, ) ) ) DICKSON COUNTY VS. ) ) HON. ALLEN W. WALLACE, RODERICK S. WILLIAMS, ) JUDGE ) Appe llant. ) (Probation Revocation)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF DICKSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JOSEPH L. HORNICK JOHN KNOX WALKUP 98 Church Street, Suite 1 Attorney General and Reporter Dickson, TN 37055 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

DAN ALSOBROOKS District Attorney General

ROBERT WILSON Assistant District Attorney General P.O. Box 580 Charlotte, TN 37036

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE

OPINION

The Defendant, Roderick S. Williams, appeals as of right from the trial court’s order revoking his probation and remanding him to the Tennessee Department of Correction to serve his eight-year sentence in confinement for Class B theft of property. The Defendant contends that the trial court erred by revoking his prob ation w hen th e cou rt (1) ba sed its determ ination solely o n his failure to pay restitution, and (2) failed to find o n the re cord th at he w illfully refused to make payments and that no suitable alternative to revocation existed. We agree, and we reverse the revocation of probatio n and re mand this case to the trial court for reinstatement of the Defendant’s probation.

On Septem ber 21, 1 995, the Defendant pleaded guilty to and was convicted of Class B felony theft. The agreed sentence was eight years in the Department of Corre ction, to be se rved in com mun ity corre ctions “with C ourt’s permission to be transferred to California for Community Corrections.” The judgment also stated that there was to be a hearing to determine the amount of restitution. This judgment was entered on September 22, 1995. On September 29, 1995, the cou rt entered an “agreed order of restitution.” This order ap pears to incorporate an agreement of the parties that restitution be set at $150,000. The order did not provide for a schedule of periodic payments, nor did the order reflect the time frame within which restitution was to be made. A community corrections order was also entered on Se ptem ber 29 , 1995 . This order contained a provision that the D efendant wo uld “pay all court costs, fines and restitution as outlined in the behavioral contract.” The order also granted the Defendant

-2-permission to be “transferred to C alifornia to live and be supervised on comm unity corrections.” On the same day, a “community corrections transfer order” was en tered wh ich transfe rred the D efendant to the “Tennessee Departm ent of Correction s probation.”

On March 3, 1997, a probation violation warrant was issued alleging that the “Defe ndan t was to ld to m ake c ourt an d restitu tion pa ymen ts mo nthly to the Court. The last payment was paid on Novem ber 14, 1 996 to Circuit Court.” On November 25, 1997, the trial court conducted a hearing on the probation revocation warrant, found that the Defendant had violated the terms of his probation, and ordered his eight-year sentence served in the Tennessee Department of Correction. It is from this order that the Defendant appeals.

As a preliminary issue, we address and reject the Defendant’s argument that the trial court erred by allowing a transfer of his supervision from Com munity Corrections to Department of Correction probation. We find that the issue is waived for failure to app eal the transfer at the time it occurred, in 1995. Furthermore, it appears from the record before us that the transfer was effectuated to facilitate the Defendant’s move from Tennessee to California, which we ass ume th e Defe ndant re queste d. He m ay not now c hallenge the transfer’s va lidity.

With respect to the propriety of the Defendant’s revocation, both the granting and denial of probation rest in the sound dis cretion of the trial judge. State v. Mitch ell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Moreover, the trial judge has the discretionary authority to revoke probation if a preponderance

-3-of the evidence establishes that a defendant violated the conditions of probation. The trial judge m ust, how ever, adduce sufficient evidence during the probation revocation hearin g to pe rmit an intelligen t decision . Id. The determination made by the trial court, if made with conscientio us judgm ent, is given the weigh t of a jury verdict and en titled to affirma nce. Stam ps v. State , 614 S.W.2d 71, 73 (Tenn. C rim. App. 198 0).

When a probation revocation is challenged, this Court has a limited scope of review. The judgment of the trial court revoking probation will not be disturbed on appeal unless it appears that the trial court acted arbitrarily or otherwise abused its discretion . State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). “For this Court to find an abuse of discretion by the trial court 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 condition s of prob ation has occurre d.’” State v. W all, 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting State v. Delp , 614 S.W.2d 395, 398 (Tenn . Crim. A pp. 198 0)); State v. Gabel, 914 S.W.2d 562, 564 (Tenn. Crim. App. 19 95); see also State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (dicta).

When the alleged vio lation of pro bation is fa ilure to pay restitution or court costs, the cour t must inq uire into the reas ons for su ch non paym ent. Bearden v. Georgia, 461 U .S. 660 , 672 (1 983). T o issue an ord er of rev ocatio n, the tria l court must affirmatively find on the record (1) that a defendant’s failure to pay was willful; and (2) that alternatives to imprisonment were inadequate to meet the State ’s interests in punishing the offender, deterring others from similar conduct and insuring the paym ent of restitu tion to victims . State v. Dye, 715 S.W.2d 36,

-4-41 (Tenn. 1986). “Pursuant to Bearden, ‘[u]nless such determinations are made . . . , funda men tal fairne ss req uires th at the [d efend ant] rem ain on proba tion.’” Id. (quoting Bearden, 461 U .S. at 67 4) (bot h altera tions in Dye). This h olding is subject to a caveat: If a defen dant was “‘som ehow resp onsible’” or “‘at fault in failing to pay,’” then application of Bearden is improp er. Id. at 40 (quoting Bearden, 461 U.S . at 665, 66 8).

At the probation revocation hearing, the State elicited testimony from a probation officer that she was the Defendant’s probation officer for “one day” prior to the tran sfer of h is supervis ion to Ca lifornia. She testified that she talked to the Defendant about court costs and restitution payme nts, and she testified that these payme nts were supposed to be paid monthly. She testified that she did not know how much the restitution order included “because when [the Defendant] got put on probation that day it was $316.00 and [the judg e and attorne ys] were going to determine the restitution.” The Defendant testified that he understood he was supposed to pay $100 per month.

In this case, the State produced some evidence showing that a condition of the De fenda nt’s pro bation requir ed him to pay $100 per month in restitution and court costs.1 The State further presented records from the court clerk’s office demonstrating that the Defendant failed to make a payment between November 14, 1996 and March 3, 1997.2 This was the solitary ground supporting a violation

1 The total sum of restitution and court costs the Defendant is required to pay to the court equals $152,537. 2 The warrant charging the Defendant with a probation violation was issued on March 3, 1996. Following issuance of the warrant, but before the Defendant was arrested, the Defendant paid an additional $150. Finally, after his arrest but prior to his revocation hearing, the Defendant paid an additional $1050.

-5-of the Defendant’s probation. In response, the Defendant asserted that he had been unemployed for a period of time and that his mother had been diagnosed with cancer, preventing him from making regular p ayme nts beca use of the costs of her trea tment.

Our review of the revoca tion hearing be low offers us little insight into the trial court’s determ ination on the issue of willfulnes s. The tria l court failed to make specific, formal findings as to whether the Defendant willfully refused to pay and as to th e suita bility of alte rnative s to revo cation. There fore, acco rding to Bearden and Dye, fundamental fairness requires reinstatement of the Defen dant’s pro bation.

Moreover, we conclude that even if the trial court had made a specific finding of willfulness , such a finding would not have been supported by any substantial evidence. The proof revealed that the Defendant was required to pay a total of $152,537 as a condition o f his eight-year proba tion. Further, the Defendant had been advised by a probation officer to make a $100 payment per month. Had the Defendant paid $100 per month for eight years, his total repayment would have equaled only $9600. Rather than pay the scheduled amount, the Defendant sent payments of $150 each. The court clerk’s records show that he mad e these $15 0 paym ents in May, July, August, and November of 1996. In September of 1996, the Defendant made two $150 payments; and in Octob er, he m ade a p ayme nt of $115 5. The Defendant made no payment in December of 1996 or Ja nuary of 1997 , but the clerk credited h im with a payment on March 3, 1997. Regarding this March payment, the Defendant produced

-6-return-receipt postage slips marked February 18 and February 28 to show that he had made this paym ent (cred ited Marc h 3) in Fe bruary.

This proof simply does not support the State’s argument that the Defendant failed to pay for seven to nine months. Furthermore, the proof would n ot support a finding of willful failure to pay. Neither this Court nor the trial court may conside r proof su cceed ing the da te a probation violation warrant w as issue d to determine whether a violation o ccurred . State v. Sacra, No. 88-278-III, 1989 WL 71037, *2 (Tenn. Crim. App., Nashville, June 29, 1989). In order to find that the Defendant failed to pay for seven to nine mon ths, the trial cou rt would nece ssarily have considered the month s following issuance of the Defendant’s violation warra nt. Th is would h ave con stituted an abuse of discretion . See Sacra, 1989 W L 71037, at *2 (“[T]he trial court’s reliance upon facts which succeeded the issuance of the probation revocation warrant is a patent and arbitrary abuse of discretion .”).

The proof prior to March 3, 1997—the violation warrant issuance date—shows that the Defendant failed to make December 1996 and January 1997 p ayme nts towa rd his cou rt costs and res titution. In addition, between the dates of May 1996 and March 1997, the Defendant paid a total of $2205. Had the Defendant made the scheduled $100 payments toward his debt for the same time p eriod, h e wou ld have paid a total of $1000. The Defendant clearly made a good fa ith effort to ho nor his de bt; but, as he testified at his revocation hearing, he was unable to pay for various reasons including unemployment and fam ily medic al hardsh ip.

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At the conclusion of the proof at the probation revocation hearing, the assistant district attorney stated, “[W ]ell, your honor, obviou sly it was a mistake to enter into the plea w here he was go ing to pay $150,000.00. So you can just go on and violate him and be done with it because o therwise we’ll be ba ck here every six months.” While the trial court rejected the argument that the Defe ndan t’s probation should be violated simply because the restitution order was unrealistic, it is apparent from the reco rd that the tria l judge agree d that it was unrealistic to expect the Defendant to be able to make restitution in the amount of $15 0,000 . It appe ars to th is Cou rt that this shou ld have been obvious at the time the plea was entered. Nevertheless, the State agreed that the Defe ndan t’s eight-yea r senten ce wou ld be serv ed on p robation subject to payment of restitution in the amount of $150,000. No payment schedule was included in any cou rt order. The Defendant’s probation officer was unaware of the total amount of restitution ordered in this case. It is apparent that no one expected the Defendant to be able to pay the $150,000 in lump sum. T he Defendant and h is prob ation o fficer ap paren tly agree d that h e cou ld pay $100 or $150 p er mon th.

It may be that to reinstate the Defendant’s probation after he ha s bee n in the penitentiary for ove r one a nd on e-half y ears w ill only increase the confusion in his case. Nevertheless, we do not believe that this record supports a finding that the Defendant willfully failed or refused to comply with court-ordered restitution. For thes e reaso ns, we revers e the re vocatio n of the Defe ndan t’s probation. We remand this case to the Crimina l Court for D ickson C ounty to enter an order reinstating his probation and for such other proceedings as may be appropriate.

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____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JOE G. RILEY, JUDGE

___________________________________ JOHN EVERETT WILLIAMS, JUDGE

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