Court of Criminal Appeals of Tennessee, Nashville
Session April 21, 2015.
Appeal from the Criminal Court for Wilson County No. 13-CR-858 David E. Durham, Judge
G. Kline Preston IV (on appeal); and Jesse C.M. Montagnino (at hearing and on appeal), Nashville, Tennessee, for the appellant, Robert R. Bishop.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Howard Lee Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
ROGER A. PAGE, JUDGE.
Appellant pleaded guilty to simple possession of marijuana in the general sessions court of Wilson County on October 1, 2012, and received a sentence of eleven months, twenty-nine days, suspended to probation. On May 21, 2013, the general sessions court issued a revocation warrant in which it was alleged by the probation officer that appellant had violated his probation by failing drug screens on December 28, 2012,  and May 17, 2013; by failing to pay fines, fees, and costs; by failing to report; and by failing to attend a low intensity outpatient program for rehabilitation. On November 13, 2013, the general sessions court concluded that appellant had violated the terms of his probation.
Appellant appealed to the criminal court, and a probation violation hearing was held in that court on July 22, 2014. Appellant called his probation officer, Terry Duncan, to testify at the hearing. Mr. Duncan testified that appellant was placed on probation on October 1, 2012. Mr. Duncan said that appellant first failed a drug screen on December 28, 2012. He explained that a negative test would be indicated by a line across the test strip. In appellant's case, no line appeared for THC, a chemical component of marijuana. Mr. Duncan testified that if he had any question about the result of a test, he would consider it a negative test; however, if a probationer disagreed with the test, the probationer would be given the option to have a laboratory test another sample. The probationer would be required to pay for the laboratory test himself.
Mr. Duncan stated that after appellant failed the May 17 drug screen, he wanted the laboratory test but did not have the funds immediately available to pay for it. Mr. Duncan allowed appellant to give a second urine sample and told appellant that he would store the sample until the following Monday at 10:00 a.m. Mr. Duncan said that he never heard from appellant again about the sample. Mr. Duncan testified that his office would only store samples for a short period of time because the samples were stored in a refrigerator where the employees also kept their food. Photographs of both the December and May drug screens were submitted as evidence.
On cross-examination, Mr. Duncan testified that appellant had not paid supervision fees and court costs. Mr. Duncan stated that after appellant failed a drug screen in December 2012, he should have enrolled in a low intensity outpatient program within the following two weeks to one month. Appellant never submitted to Mr. Duncan the form associated with enrolling in the outpatient program, and Mr. Duncan had no record of appellant's completing the outpatient program. Mr. Duncan testified that appellant also failed to complete a drug education class.
On re-direct examination, Mr. Duncan agreed that prior to the issuance of the violation warrant, appellant had paid over $800 of his court costs. He explained that appellant's owing $50 in supervisory fees indicated that appellant had not paid the required $10 per week for five weeks. Mr. Duncan described the outpatient program as a "get out of jail free card, " a way for a probationer to avoid serving his sentence in jail. Mr. Duncan testified that the administrators of the outpatient program would report to the probation officers the names of those who had attended the program. The probationer would be responsible for submitting a completion certificate to the probation officers.
Appellant testified that he was placed on probation on October 1, 2012, and that he failed a drug screen in December 2012. He said that he did not smoke marijuana again after December. When he failed the drug screen in May 2013, he did not have his urine sample sent to the laboratory for additional testing because he was unable to return to the probation office within the allotted time due to sustaining a flat tire on his vehicle. Appellant testified that he did not call the probation office to explain his tardiness nor attempt to drive to the probation office because he believed that the probation officers would dispose of the sample if he were not at the office to pay for the laboratory fee on time. Appellant testified that he enrolled in the outpatient program within two weeks of failing his December drug screen. He said that he attended one class locally and thereafter took the classes "one on one" with the class instructor at the instructor's office in Murfreesboro. He estimated that he had taken ten to eleven of the required sixteen classes by the time the probation violation warrant was issued in May 2013. He continued taking his classes, however, and completed the program prior to a November 2013 court date in general sessions court. Appellant testified that he did not have a completion certificate.
The criminal court ruled that appellant violated his probation by testing positive for marijuana on December 28, 2012, and May 17, 2013. The court found that appellant waived his rights regarding the second test in May by failing to contact the probation office. The court also found that appellant's testimony regarding his completion of the outpatient program was "not very convincing." The court noted that if appellant had completed the ...