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Kemp v. State

Court of Criminal Appeals of Tennessee, Knoxville

October 11, 2019

CHRISTOPHER A. KEMP
v.
STATE OF TENNESSEE

          Assigned on Briefs February 26, 2019

          Appeal from the Criminal Court for Sullivan County Nos. S49934, S50374 William K. Rogers, Judge

         The Appellant, Christopher A. Kemp, appeals the trial court's revocation of his probation, contending that his counsel was ineffective at the probation revocation hearing. Upon review, we affirm the judgment of the trial court.

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

          David S. Barnette, Jr., Kingsport, Tennessee (on appeal), and Terry L. Jordan, Blountville, Tennessee (at hearing), for the Appellant, Christopher A. Kemp.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         On May 5, 2005, the Appellant was charged with possessing .5 grams or more of cocaine with the intent to sell or deliver within a school zone and conspiring to sell or deliver .5 grams or more of cocaine within a school zone. On November 28, 2005, the Appellant pled guilty to the charged offenses and received concurrent sentences of ten years and six years, respectively, which were suspended to probation. The Appellant began serving the sentence after serving a previously imposed eight-year sentence.

         On April 22, 2016, a probation violation warrant was issued based on allegations that the Appellant had incurred additional charges in New York of kidnapping and strangulation. At the probation revocation hearing, the State submitted an "exemplified copy" of the Appellant's conviction of attempted second degree robbery in New York. The State urged the court to revoke the Appellant's probation based upon the conviction.

         The Appellant testified that he lived in Brooklyn, New York. The Appellant admitted that he pled guilty to attempted second degree robbery and received a sentence of two years. The Appellant explained, "My attorney at the time advised me that it was in my best interest to take the plea because the State of New York was using my Tennessee convictions against me and not the facts of the case." He said that he had been incarcerated in New York since March 2016 and that he was transported to Tennessee on December 13, 2017, for the hearing.

         The Appellant stated that he was on probation for three years before he was arrested in New York. During that time, the Appellant maintained two jobs. He lost one of the jobs, which was working security, due to his incarceration.

         The Appellant asserted that he always reported to his probation officer, paid his fines, and passed his drug screens. He stated that if he were released on probation, he planned to live in Brooklyn with his fiancée and stepchildren. The Appellant said that he tried to be a good parent and a good person. He noted that the conviction was his first violation and that he had a good work ethic, did volunteer work, had faith in God, and was a productive member of society. He asked the court for leniency and to be released on probation.

         On cross-examination, the Appellant said that he had never used cocaine but that he had sold cocaine. The Appellant said that after his first arrest for selling cocaine, he was released on bond. He went to an apartment where someone had cocaine, and the police "raided" the apartment. The Appellant conceded that he pled guilty to offenses relating ...


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