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State v. Horne

Court of Criminal Appeals of Tennessee, Nashville

November 14, 2017

STATE OF TENNESSEE
v.
MELVIN L. HORNE

          Assigned on Briefs October 18, 2017

         Appeal from the Criminal Court for Wilson County No. 16-CR-710 John D. Wootten, Jr., Judge

         Defendant, Melvin L. Horne, appeals the revocation of his probation, arguing that the trial court abused its discretion when it relied on a note on the court file from the original guilty plea hearing. The State responds that the note is not properly included in the record, that Defendant waived consideration of the issue by failing to object during the hearing, and that the trial court did not abuse its discretion. Upon our review of the record, we find no abuse of discretion and affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Comer L. Donnell, District Public Defender, and Kelly A. Skeen, Assistant District Public Defender, for the appellant, Melvin Leanerd Horne.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Counsel; Tom P. Thompson, Jr., District Attorney General; and Tom Swink and Linda Walls, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         In May 2016, Defendant was indicted by the Wilson County Grand Jury of one count of criminal simulation between $1000 and $10, 000 and one count of theft of property valued between $1000 and $10, 000. On August 22, 2016, Defendant pled guilty to theft, and the criminal simulation charge was dismissed.[1] Defendant received an agreed upon sentence of four years suspended to supervised probation as well as restitution in the amount of $1543.87. Defendant's probation was supervised out of Davidson County, where he resided and worked.

         On November 18, 2016, a probation violation warrant was issued, alleging that Defendant was arrested for a violation of his Community Supervision[2] in Davidson County, violated curfew on several occasions, and tested positive for cocaine. A probation violation hearing was held on February 27, 2017, where Defendant pled guilty to violating the rules of probation. Defendant admitted that he pled guilty to the violation of community supervision in Davidson County and was sentenced to serve forty-five days. Defendant also admitted to snorting cocaine, stating "I'm not going to sit here and try to deny it. I mean, the proof is in the pudding, and I did make a mistake." Defendant's probation officer did not testify, and the State did not put on any proof. The trial court revoked Defendant's probation and placed his sentence into effect. Defendant filed a timely notice of appeal.

         On appeal, Defendant argues that the trial court abused its discretion by revoking Defendant's probation. According to Defendant, the trial court prejudged the matter by basing its decision on a note in the court's file from Defendant's original guilty plea which read "Last Chance." The State responds that Defendant failed to properly include the court's notes in the appellate record by merely attaching a photocopy to his appellate brief and that Defendant waived the issue by failing to object during the hearing. Furthermore, the State argues that the trial court properly revoked Defendant's probation based on his admission that he violated the rules of probation. We agree with the State.

         When a trial court finds by a preponderance of the evidence that a defendant has violated the conditions of probation, the court "shall have the right . . . to revoke the probation." T.C.A. § 40-35-311(e)(1). After revoking a defendant's probation, the trial court is authorized to order a defendant to serve the balance of his original sentence in confinement, return a defendant to probation with modified conditions as necessary, or extend the period of probation by no more than two years. T.C.A. §§ 40-35-308, -310. The revocation of probation rests in the sound discretion of the trial court and will not be overturned by this Court absent an abuse of that discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); see also State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013) (holding that an abuse of discretion standard with a presumption of reasonableness applies to all sentencing decisions). An abuse of discretion occurs when 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. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980); see also State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001).

         As to Defendant's argument that the trial court prejudged the violation of probation by writing "Last Chance" in its notes from the original guilty plea, the State is correct that these notes were not properly included in the record before this Court pursuant to Tennessee Rule of Appellate Procedure 24. "It is settled law that documents merely attached to appellate briefs cannot be considered by this Court because they are not properly part of the certified record." Jeffrey Lynn Myers v. State, No. M2004-02411-CCA-R3-PC, 2005 WL 1541870, at *5 n.7 (Tenn. Crim. App. June 29, 2005) (citing State v. Matthews, 805 S.W.2d 776, 783-84 (Tenn. Crim. App. 1990)), no perm. app. filed. The appellant has the duty to prepare an adequate record in order to allow for meaningful review. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).

         The State is also correct that Defendant failed to raise any objection during the hearing to the trial court's supposed consideration of this note. See Tenn. R. App. P. 36(a). Moreover, Defendant is not entitled to plain error review because the record does not clearly establish what transpired in the trial court and because he cannot show a breach of a clear and unequivocal rule of law. See State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (setting out the five factors for plain error review and holding that "complete ...


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