Court of Criminal Appeals of Tennessee, Knoxville
from the Criminal Court for Bradley County No. 2006-CR-124
Andrew M. Freiberg, Judge.
Appellant, Quincy D. Scott, appeals as of right from the
Bradley County Criminal Court's judgment revoking his
probation. The State has filed a motion to affirm by
memorandum opinion the judgment of the trial court. Following
our review, we conclude that an opinion in this case would
have no precedential value and affirm the judgment of the
habeas corpus court pursuant to Rule 20 of the Rules of the
Tennessee Court of Criminal Appeals.
R. App. P. 3; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal
D. Scott, Pro Se (on appeal); Richard Hughes, District Public
Defender; and Keith Roberts, Assistant Public Defender (at
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Assistant Attorney General; Stephen D.
Crump, District Attorney General; and Paul Moyle, Assistant
District Attorney General.
McGee Ogle, J., delivered the opinion of the court, in which
James Curwood Witt, Jr. and D. Kelly Thomas, Jr., JJ.,
MCGEE OGLE, JUDGE.
October 11, 2006, the Appellant pleaded guilty in Bradley
County Criminal Court to one count of sale of .5 gram or more
of cocaine and was sentenced to eight years'
incarceration to be served on probation. On August 11, 2014,
a probation violation warrant issued alleging that the
Appellant had garnered new arrests in February 2014 in McMinn
County for violation of an order of protection, possession of
schedule VI drugs, and resisting arrest. The probation
violation warrant also alleged new arrests in July 2014 in
McMinn County for unlawful possession of a weapon, simple
possession, and two counts of aggravated robbery.
December 14, 2018 revocation hearing, the Appellant requested
a six-month continuance to allow him to file a petition for
post-conviction relief challenging the McMinn County
aggravated robbery conviction in the hope that the conviction
would be overturned. The trial court noted that the
revocation warrant had been pending for over four years and
denied the motion for continuance. The State proceeded solely
on the aggravated robbery conviction as grounds for
revocation. The Appellant admitted his arrest and
conviction for the aggravated robbery but contended that he
would establish his innocence of the aggravated robbery
offense at post-conviction. The trial court considered the
Appellant's lack of amenability to correction, failed
attempts at less restrictive measures than confinement, and
long history of criminal activity and concluded that the
Appellant's probation should be revoked and that he
should serve the remainder of his sentence in incarceration.
Appellant filed a timely notice of appeal from the trial
court's order revoking probation. Upon motion of the
Appellant, this court permitted the Appellant to proceed pro
se on appeal. On appeal, the Appellant argues that the trial
court committed plain error by denying his motion for
continuance of the revocation hearing. The State argues that
the Appellant cannot establish plain error or an abuse of
discretion and, therefore, the court should affirm by
memorandum opinion the judgment of the trial court. Tenn. Ct.
Crim. App. R. 20. In response to the State's motion, the
Appellant filed a motion to submit the case for decision
without the State's brief. Tenn. R. App. P. 29(c).
36(a) of the Tennessee Rules of Appellate Procedure provides
that relief need not be granted to "a party responsible
for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect
of an error." Tenn. R. App. P. 36(a). However, the rule
further provides that "[w]hen necessary to do
substantial justice, an appellate court may consider an error
that has affected the substantial rights of a party at any
time, even though the error was not raised in the motion for
new trial or assigned as error on appeal." Tenn. R. App.
P. 36(b). The Appellant requested a continuance at the
opening of the revocation hearing. The trial court denied the
continuance. On appeal, the Appellant contends that the trial
court's denial of the continuance was erroneous and
should be reviewed via plain error. The issue concerning the
continuance was properly preserved. Therefore, plain error
analysis is inapt under these circumstances.
said, it is well-established that the decision whether to
grant a continuance rests within the sound discretion of the
trial court. See State v. Mann, 959 S.W.2d 503, 524
(Tenn. 1997). The trial court's decision may only be
reversed if the trial court abused its discretion and the
appellant was improperly prejudiced. See State v.
Morgan, 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). An
appellant is improperly prejudiced by the denial of a motion
for continuance when "a different result might
reasonably have been reached if the continuance had been
denying the motion for continuance, the trial court
considered the length of time - over four years - that the
probation revocation warrant had been pending and that the
Appellant had not yet filed a petition for post-conviction
relief challenging the aggravated robbery conviction that
served as the basis for the revocation warrant. The Appellant
has not established how he was prejudiced by the trial
court's ruling. We cannot conclude ...