STATE OF TENNESSEE v. NICHOLAS J. WALDEN

                                                                                        12/16/2022
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs December 13, 2022

             STATE OF TENNESSEE v. NICHOLAS J. WALDEN

                 Appeal from the Criminal Court for Wilson County
                  No. 17-CR-9, 20-CR-458 Brody N. Kane, Judge
                     ___________________________________

                           No. M2022-00255-CCA-R3-CD
                       ___________________________________



Defendant, Nicholas J. Walden, appeals the trial court’s order revoking his probationary
sentence for theft of property valued between $1,000 and $10,000 and ordering him to
serve his original four-year sentence in confinement. Following our de novo review of the
entire record and the briefs of the parties, we affirm the judgment of the trial court.

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which TIMOTHY L. EASTER,
J., joined. CAMILLE R. MCMULLEN, J., concurring in results only.

Jessica F. Butler, Assistant Public Defender, Tennessee District Public Defenders
Conference (on appeal) and Shelley T. Gardner, District Public Defender, and Aaron M.
Rochelle, Assistant Public Defender (at trial), for the appellant, Nicholas Walden.

Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Jason L. Lawson, District Attorney General; and Justin G. Harris,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                         Factual and Procedural Background

      Defendant pled guilty on November 21, 2017, to theft of property valued between
$1,000 and $10,000 in Case No. 17-CR-9 (“felony case”) and was sentenced to four years,
suspended to probation, to be served consecutively to an unrelated sentence he was serving
in Fentress County that was set to expire on June 26, 2019. On January 13, 2021,
Defendant pled guilty in Case No. 20-CR-458 (“misdemeanor case”) to simple possession
of methamphetamine and was sentenced to eleven months, twenty-nine days, suspended to
probation after service of thirty days in jail.1

       Defendant’s first violation of probation warrant was issued in his misdemeanor case
on March 8, 2021, based on allegations that Defendant had violated the terms of his
probation by failing to report to his probation officer, failing to pay supervision fees, and
failing to pay court costs. Defendant appeared before the trial court, and following a
hearing, the court entered an order finding Defendant in violation of his probation and
ordering him to serve ninety days in confinement, then reinstated to probation.

       On July 2, 2021, a second violation of probation warrant was issued in Defendant’s
misdemeanor case based on allegations that Defendant had violated the terms of his
probation by failing to report to his probation officer, failing to pay supervision fees, and
failing to pay court costs. The warrant was amended on July 20, 2021, to include
Defendant’s arrest on July 11, 2021, for criminal impersonation. Defendant appeared
before the trial court, and following a hearing, the court entered an order finding Defendant
in violation of his probation and ordering him to serve thirty days in confinement, then
reinstated to probation. The special conditions section of the order included weekly
reporting and drug screenings as additional supervision.

        On August 31, 2021, a first probation violation warrant was issued in Defendant’s
felony case alleging that he violated his felony probation by being cited in Davidson
County for possession of methamphetamine and drug paraphernalia on March 5, 2021,
being subsequently arrested for those charges on August 5, 2021, and failing to report the
arrest to his probation officer.

       On October 8, 2021, a third probation violation warrant was issued in Defendant’s
misdemeanor case based on allegations that Defendant violated the terms of his probation
by absconding,2 despite his probation officer’s attempts to reach him by phone and letter,
and that Defendant had unpaid supervision fees and court costs.

       A probation revocation hearing for both cases was held on January 31, 2022. At the
hearing, the trial court reviewed Defendant’s probation history and noted that it was the
third violation in his misdemeanor case. The court further pointed out to Defendant,
“[Y]ou were told last chance in May of [20]21.” Defendant told the trial court that he failed
to report to his misdemeanor probation officer because his father passed away. He said

        1
          Probation Officer Thomas Langdon supervised Defendant’s felony probation in Case No. 17-CR-
9, and Probation Officer Michelle Allison supervised his misdemeanor probation in Case No. 20-CR-458.
        2
          There was also an absconding warrant submitted by Officer Langdon in Defendant’s felony
probation case, but as discussed below, the warrant was apparently not signed by the trial judge or served
on Defendant and therefore, was not properly before the court. See T.C.A. § 40-35-311 (a)(1), (A) and (2).

                                                  -2-
that the new charges that he incurred in Davidson County, which served as the basis for his
probation violation in his felony case, had been dismissed.

       When the trial court asked how the State learned of the new charges, Defendant’s
felony probation officer, Thomas Langdon, testified:

            We typically do arrest checks every three months at the supervision
            level that he was on, and he just popped up on the Criminal Court
            Clerk website in Nashville. I had also put through a probation
            violation for absconding that I have a copy, but it’s not signed, so I
            don’t know if it was ever served or not. But the, what you have from
            [the] State is an amended, but I had submitted an absconding warrant
            a few days before the new charges.

The trial court then noted that from its perspective, the absconding warrant did not exist.
Defendant again told the trial court that the Davidson County cases had been dismissed
due to his participation and completion of the drug court program. He testified that he
failed to report to his misdemeanor probation officer, Michelle Allison, because he did not
understand that he was supposed to report to both her and Officer Langdon.

        Officer Langdon did not have a copy of Defendant’s citation for possession of
methamphetamine and drug paraphernalia in Davidson County. He testified that it was
citation number 1111802. The State told the trial court that Defendant had been convicted
in that case on November 9, 2021, and that the charges had not been dismissed. The State
further noted: “I can show the court. I mean, I can show you.”3

       The following exchange then took place between the trial court and Defendant:

            THE COURT: [Defendant], I asked you the specific questions.
            First you said, when we first started, you said all those things were
            dismissed. And I, after we heard from this gentleman, I went, and
            you said, I said, [w]as the meth, misdemeanor possession of meth
            was dismissed? And you said, Yes. And that’s when I said was it
            part of your drug court program?

            [DEFENDANT:]               Drug court program.

            THE COURT:                 It wasn’t dismissed.



       3
          The State did not introduce any further proof at the hearing concerning the disposition of the
charges for citation number 1111802.

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            [DEFENDANT]:              I mean, I don’t know what that says. I don’t,
            I don’t, you can –

            THE COURT: I’m revoking you to serve. You don’t know the
            truth if it bit you in the face. This is, I’d already told you last chance
            anyway.

      On appeal, Defendant challenges the revocation of his probation and four-year
sentence to serve in his felony case.

                                             Analysis

       On appeal, Defendant contends the trial court abused its discretion by revoking his
probation in his felony case and placing his original four-year sentence into effect because
it was his first technical violation and that the trial court failed to make “sufficient findings
regarding either the existence of a specific violation or the appropriate consequences for
the violation.” The State contends the trial court acted within its discretion in revoking
Defendant’s probation and ordering him to serve his sentence in confinement because the
record contains admissions about Defendant’s arrest for simple possession of
methamphetamine and his failure to report the arrest to his felony probation officer.

       Trial courts possess the authority to revoke probation upon finding by a
preponderance of the evidence that a defendant has violated the conditions of probation.
See T.C.A. §§ 40-35-310(a), -311(e)(1) (2021).4 Upon finding that a defendant has
violated probation, the trial court may: (1) order incarceration for some period of time; (2)
cause execution of the sentence as it was originally entered; (3) extend the defendant’s
probationary period not exceeding one year; (4) return the defendant to probation on
appropriate modified conditions; or (5) resentence the defendant for remainder of the
unexpired term to a sentence of probation. See T.C.A. §§ 40-35-308(c)(1), (2); -310; -
311(e)(1), (2) (2021).

        The probation statute provides for two categories of probation violations, technical
and non-technical, with differing penalties for both. A non-technical violation allows the
trial court to revoke probation and order a defendant to serve his or her sentence when the
court finds “by a preponderance of the evidence that the defendant has committed a new
felony, new Class A misdemeanor, zero tolerance violation as defined by the department
of correction community supervision sanction matrix, or absconding.” T.C.A. § 40-35-311
(e)(2) (2021). Technical violations include any “act that violates the terms or conditions
of probation but does not constitute a new felony, new Class A misdemeanor, zero
tolerance violation as defined by the department of correction community supervision

       4
         Multiple changes were made to both statutory sections effective July 1, 2021. See 

 to -311 (2021).

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sanction matrix, or absconding.” T.C.A. § 40-35-311 (d)(3) (2021). For a first technical
violation, a trial court may (1) revoke probation and impose a term of incarceration not to
exceed 15 days or (2) resentence the defendant for the remainder of the unexpired term to
a probationary sentence that includes a requirement to participate in a community-based
alternative to incarceration. T.C.A. § 40-35-311 (e) (2021).

        In State v. Dagnan, 

 (Tenn. 2022), which was issued on March 4,
2022, a little more than a month after the revocation hearing in this case, the Tennessee
Supreme Court concluded that probation revocation requires a two-step consideration by
the trial court. First, the trial court determines whether a preponderance of the evidence
exists to revoke a defendant’s probation. 

 641 S.W.3d at 757, n.4. Should the trial court
find that a defendant has violated his probation, the trial court then determines the
appropriate consequence for the revocation. Id. at 757. Trial courts are not required to
hold an additional hearing to determine the proper consequence for a revocation. Id.
However, “[s]imply recognizing that sufficient evidence exist[s] to find that a violation
occurred does not satisfy [the two-step consideration].” Id. at 758.

        “On appeal from a trial court’s decision revoking a defendant’s probation, the
standard of review is abuse of discretion with a presumption of reasonableness so long as
the trial court places sufficient findings and the reasons for its decisions as to the revocation
and the consequence on the record.” Dagnan, 641 S.W.3d at 759. When the trial court
fails to place its reasons on the record, unless the defendant admits to the violation, the
reviewing court may either conduct a de novo review if the record is sufficiently developed
for the court to do so, or remand the case to the trial court to make findings. Id. (citing
State v. King, 

 (Tenn. 2014)); see also State v. Arthur M. Stewart,
No. M2021-00595-CCA-R3-CD, 

, at *3 (Tenn. Crim. App. Apr. 27,
2022) no perm. app. filed. Although the trial court in this case did not make sufficient
findings to support the revocation of Defendant’s probation in accordance with Dagnan,
Defendant admitted to the violations. Furthermore, a de novo review supports the finding
by a preponderance of the evidence that defendant violated his probation.

       Defendant argues that the proof at the revocation hearing was only sufficient to
show that he committed a first technical violation in his felony case by not reporting his
new arrest in Davidson County for simple possession of methamphetamine to his probation
officer, and therefore, the trial court erred in fully revoking his probation and ordering him
to serve his sentence.

       While he agrees that a conviction for simple possession of methamphetamine is a
Class A misdemeanor, a non-technical violation which could result in full revocation,
Defendant contends that the State did not present any proof that he committed the offense
or that he was ever convicted of the offense. However, the record shows that Defendant
essentially admitted at the revocation hearing that he committed the offense. His
contention was that the case was dismissed in exchange for his participation and

                                              -5-
completion of the drug court program; he did not deny committing the offense.
Defendant’s admission alone constitutes substantial evidence to support revocation. See
State v. Ross Pruitt, No. E2015-01494-CCA-R3-CD, 

, at *4 (Tenn.
Crim. App. June 8, 2016) (“[t]he Defendant’s admission that he violated the terms of his
probation, alone constitutes substantial evidence to support the revocation”). Additionally,
the State disputed Defendant’s claim that the case was dismissed and provided the trial
court with information that Defendant had been convicted of the offense on November 9,
2021, and that the charges had not been dismissed. Although the conviction was not
admitted as evidence at the revocation hearing, Defendant admitted that “part of my
conditions [in the Davidson County charges] were completing the drug court program and
they were dismissing the, all of the charges. And I completed it, you know what I mean?”
When pressed by the trial court about whether the charges had been dismissed, Defendant
responded, “I mean, I don’t know what that says. I don’t, I don’t, you can – [.]” The trial
court found Defendant not to be credible and revoked Defendant’s probation. We note that
the trial court did not rely upon the “mere fact of an arrest” or pending charges to justify
the revocation of Defendant’s felony probation. State v. Harkins, 

 (Tenn.
1991).

       Turning our attention to the trial court’s reasoning for ordering incarceration as a
consequence of revocation, after de novo review, the record supports the trial court’s
determination. Defendant admitted that he failed to report his arrest for simple possession
of methamphetamine in Davidson County to Officer Langdon, and he did not dispute at
the revocation hearing that he committed the offense. Moreover, the evidence at the
revocation hearing showed that Defendant had violated his misdemeanor probation on
three occasions, and after two of those violations, Defendant was reinstated to probation
after serving time incarcerated. Further, the trial court had previously admonished
Defendant that his third chance on his misdemeanor probation would be his last. These
facts indicate that measures less restrictive than confinement were unsuccessful for
Defendant and reflect poorly on Defendant’s potential for rehabilitation. See T.C.A. § 40-
35-103(1)(C) and (5). Furthermore, this court has repeatedly held that “an accused, already
on [a suspended sentence], is not entitled to a second grant of probation or another form of
alternative sentencing.” State v. Dannie Brumfield, No. M2015-01940-CCA-R3-CD, 

, at *3 (Tenn. Crim. App. Aug. 10, 2016) (quoting State v. Jeffrey A. Warfield,
No. 01C01-9711-CC-00504, 

, at *2 (Tenn. Crim. App. Feb. 10, 1999));
see also State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 

,
at *2 (Tenn. Crim. App. Feb. 11, 2002).

      Based on our de novo review, we conclude that the record supports the trial court’s
revocation of Defendant’s felony probation and imposition of the original sentence.
Defendant is not entitled to relief.




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                                 Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.



                                       ____________________________________
                                       JILL BARTEE AYERS, JUDGE




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