Summary
In Defillipis, because the appellant failed to provide the terms of his probation, this Court had "no choice but to assume the probation order contained a condition that he not use illegal drugs."
Summary of this case from State v. MorrisOpinion
No. M2007-01647-CCA-R3-CD.
Assigned on Briefs April 22, 2008.
Filed June 12, 2008.
Direct Appeal from the Criminal Court for Williamson County; No. II-CR04214; Timothy L. Easter, Judge.
Judgment of the Criminal Court Affirmed.
Worrick G. Robinson, III (at trial) and Mark C. Scruggs (on appeal), Nashville, Tennessee, for the Appellant, Nick Defillipis.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel West Harmon, Assistant Attorney General; Ronald L. Davis, District Attorney General; Mary Katherine White, Assistant District Attorney General, for the Appellee, the State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which David H. Welles and James Curwood Witt, Jr., JJ., joined.
OPINION
The Defendant, Nick Defilippis, pled guilty to reckless endangerment, and the trial court granted him judicial diversion and sentenced him to probation for eleven months and twenty-nine days. During that time period, the Defendant tested positive for cocaine. The trial court found that he violated his probation, and it subsequently revoked his probation and sentenced him to six months of incarceration. The Defendant appeals, claiming: (1) the trial court lacked subject matter jurisdiction with regard to a probation revocation warrant it issued; (2) the trial court denied him due process because he lacked notice of his probation terms; (3) the State presented insufficient proof that he violated his probation; and (4) the trial court erroneously sentenced him. After a thorough review of the facts in the record and the applicable law, we affirm the trial court's judgment.
I. Facts A. Probation Revocation Hearing
The following facts were presented at the revocation hearing: Officer Mike Mayo, a Williamson County Probation officer, testified that he administers drug screens, which includes measuring the temperature of the urine and performing either a two or five panel test. If the subject denies using drugs, he then sends the urine to Aegis Labs for further testing. Officer Mayo said he tested the Defendant for "marijuana, cocaine, opiates, amphetamines, and methamphetamines" while the Defendant was on probation. The Defendant tested positive for cocaine; after the Defendant denied using cocaine, Officer Mayo performed "a backup drug screen" test again. The Defendant's urine again tested positive for cocaine.
Dr. Timothy Robert, the lab director at Aegis Sciences Corporation, a forensic toxicology laboratory, testified that the Defendant's urine specimen tested positive for cocaine metabolite. He said the concentration "indicate[d] the probable use of cocaine within 72 hours prior to the collection of the specimen."
Dr. Howard Taylor, a forensic toxicologist, testified that he received the Defendant's drug test results. He said that different medications can interfere with the various drug tests performed. On cross-examination, Dr. Taylor testified that the Aegis lab used the most reliable methods of testing, gas chromatography and mass spectrometry, to further test the Defendant's urine for drugs.
Maria Levnjak, the Defendant's mother-in-law, testified on the Defendant's behalf that she is from Montenegro, Yugoslavia. She said she brewed the Defendant some tea, later known to be called Zurit, to help him with his headaches. She said she did not know what was in the tea, but it helped with her arthritis, and her mother's friends imported it from Serbia. On cross-examination, Levnjak said she did not know how often she fixed the Defendant the tea, but said, "We drink so many times, I no [sic] count." She reiterated that she did not know what was in the tea.
Dr. Howard Taylor, a forensic toxicologist who interviewed the Defendant in preparation for trial, testified that the Zurit tea, which the Defendant's mother-in-law gave him, contains "about 26,000 nanogram per mill of brewed tea — cocaine in brewed tea [-] and it contains 4.7 mg per gram of cocaine." He stated that three years before the hearing, he analyzed the Zurit tea and discovered it contained cocaine. He stated that drinking the Zurit tea will elicit a positive test result for cocaine. The Peruvian tea is not available in stores in the United States but only "on the internet or through foreign countries." Dr. Taylor said the cocaine would stay in the human body for two to three days after it was ingested. On cross-examination, Dr. Taylor stated that he thought to ask about herbal teas after the Defendant kept denying all use of cocaine. On redirect examination, Dr. Taylor said when the Defendant brought in the Zurit tea that his mother-in-law served him, his lab confirmed the tea contained cocaine.
The Defendant testified that he suffers from "chronic cluster headaches," which are "excruciating" headaches that develop on a regular schedule. He said he can get as many as three to eight headaches a day. The Defendant treats these headaches with "DHE injectable" shots and Butorphanol nasal spray. He testified repeatedly that he does not use alcohol or drugs. The Defendant said his mother-in-law provides him with Zurit tea to help his headaches. Speaking of her, he said she has "always [been] very big on these teas and [does not] . . . believe in medication like medical medication. [She] tr[ies] to get help the natural way." The Defendant said that he drinks the Zurit tea at least five times a week and that he said he does not know what is in the tea, but he "[doesn't] think she'd give [him] anything to hurt [him]." The Defendant also stressed that he never refused to take a drug test.
On cross-examination, the Defendant said he thought he tested positive for cocaine due to his prescription headache medicines: the Butorphanol nasal spray contains opiates. He said he tried stopping his medication, but he got very "sick." He never tried to stop drinking the Zurit tea because he did not think the tea was the source of cocaine. The Defendant admitted that the tea made his headaches feel better, but he said the tea had no other effects on him.
After hearing the testimony, the trial court gave the Defendant a period of six weeks to not drink the Zurit tea and continue to be screened for drugs. The court said to the Defendant, "Your explanation . . . I have some serious questions about its plausability, but I am going to give you the benefit of the doubt. . . . I'm not going to rule." The trial court then warned him, "If you do test positive again, then your [credibility] here today will have been destroyed and it will resolve the issue in my head now whether to believe this or not. We won't even need to have a further hearing on it." The trial court ordered the probation office to test the Defendant randomly every week for drugs. During that time period, the Defendant failed one of the drug tests. As a result, the trial court revoked the Defendant's probation.
B. Sentencing Hearing
At the sentencing hearing, the following evidence was presented: The Defendant testified that he has been married for sixteen years and has two children. He has owned his own Italian deli in Nashville for eighteen years. He said he needs to be on probation to help run the restaurant because he is the primary cook. The Defendant repeated that he does not use cocaine. He said that he drank the tea by accident when his family moved from Williamson County to Davidson County. He said his wife was bitten by a brown recluse spider, which required going to the emergency room two to three times, and his mother-in-law made tea to help with that injury. He stated, "And I'm sorry to say this, but I think I drank it by accident." Referring to his wife and mother, "[T]hey have [it] every day. They drink tea regularly."
On cross-examination, the Defendant admitted he was charged with reckless endangerment because he followed the people who "flipped him off" for five miles. He also acknowledged he was arrested for, but not charged with, domestic violence in 2001.
Gina Defilippis, the Defendant's wife, testified that she cannot run the family business without the Defendant. She said that she is with him all the time, and she knows he does not use drugs. Defilippis stated a brown recluse spider bit her when they were moving, and her mother prepared some Zurit tea to help with the pain. On cross-examination, Defilippis said she saw the Defendant use cocaine twenty-one years ago, and he has not acted like that recently. She opined that the Defendant did not realize he drank the Zurit tea.
After hearing the testimony, the trial court found the Defendant's testimony dishonest and uncredible. Subsequently, it revoked the Defendant's probation and sentenced him to six months of incarceration. It is from this judgment that the Defendant now appeals.
II. Analysis
The Defendant appeals, claiming: (1) the trial court lacked subject matter jurisdiction with regard to a probation revocation warrant issued; (2) the trial court denied him due process because he lacked notice of his probation terms; (3) the State presented insufficient proof that he violated his probation; and (4) the trial court erroneously sentenced him.
A. Subject Matter Jurisdiction
The Defendant claims the trial court lacked subject matter jurisdiction to issue a warrant on December 19, 2006, because he fulfilled his probation requirement of eleven months and twenty-nine days. The State counters that the Defendant waived this issue by not objecting to the trial court's authority. Further, the State asserts that, if this issue is reviewed on its merits, the timing of the Defendant's probation was tolled by the previous warrant, so the trial court had jurisdiction to issue a subsequent warrant.
We note that the record does not show the Defendant objected to the trial court's jurisdiction. However, contrary to the State' position, the Defendant did not waive this issue by not objecting. As this Court has previous said, "`Lack of jurisdiction' refers to subject matter jurisdiction which a defendant has no power to waive." Terry D. Brewer v. State, No. W2007-01838-CCA-R3-HC, 2008 WL 1700208, at *3 (Tenn.Crim.App., at Jackson, Apr. 8, 2008), no Tenn. R. App. P. 11 application filed (citing Pon v. U.S., 168 F.2d 373, 374 (1948) and State v. Seagraves, 837 S.W.2d 615, 618 (Tenn.Crim.App. 1992)). Thus, we will address the issue on its merits.
In Tennessee, if a defendant has been granted judicial diversion, and violates the terms of the diversionary probation, then the trial court should follow the same procedures as those used for ordinary probation revocations. Alder v. State, 108 S.W.3d 263, 266 (Tenn.Crim.App. 2002). Those procedures include issuing a probation revocation warrant and conducting a hearing, where the trial court will determine by a preponderance of the evidence whether the defendant in fact violated the probationary terms. Id.; T.C.A. § 40-35-311 (2006). A judge may revoke a defendant's probation "within the maximum time which was directed and ordered by the court for such suspension." State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001). "If the probation revocation warrant is issued within the term of the sentence, the issuance of the warrant commences the revocation proceedings and thereby interrupts the running of the probationary period until such time as the trial court may hear and determine the issue raised by the warrant." Id. To be clear, "it is the filing of a revocation warrant, . . . that tolls the limitations period." Alder, 108 S.W.3d at 267 (emphasis in original).
The Defendant began serving his probation on July 6, 2005, with an ordered sentenced of eleven months and twenty-nine days. On June 5, 2006, a warrant was filed alleging he violated his probation. While the trial court dismissed the warrant on December 18, 2006, on December 19, 2006, the trial court issued a new warrant for the Defendant. That new warrant also alleged a probation violation. The trial court held a hearing to address that warrant on June 19, 2007, which was when it revoked the Defendant's judicial diversion.
The statute of limitations for the Defendant's probationary period began running on July 6, 2005. On June 5, 2006, his probationary period was tolled by the filing of a warrant. That toll essentially stopped his probation time from running until his hearing on December 18, 2006. With the trial court's dismissal of that warrant, the Defendant's probation time clock began running again. Because the time was tolled, the Defendant did not receive any probationary credit during the six months between the warrant's issuance and its dismissal. Thus, on December 18, 2006, the Defendant still had a month left to serve on his probation sentence, and the trial court had jurisdiction to issue another warrant for the Defendant on December 19, 2006. The Defendant is not entitled to relief on this issue.
B. Due Process
The Defendant next claims he did not know that testing positive for cocaine would violate his probation requirements. The State argues that the Defendant waived this issue by failing to provide the guilty plea hearing transcript. Alternatively, the State argues that the Defendant knew he had to follow the laws of the State when he was on probation and that this was sufficient notice.
The State correctly notes that the Defendant failed to include the guilty plea hearing transcript and the terms of his probation in the record on appeal. "When a party seeks appellate review there is a duty to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the appeal." State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). Moreover, "Where the record is incomplete and does not contain a transcript of the proceedings relevant to an issue presented for review, or portions of the record upon which the party relies, an appellate court is precluded from considering the issue." Id., at 560-61 (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn.Crim.App. 1988)); see Tenn. R. App. P. 24(a).
While the Defendant claims he did not know that using illegal drugs, or, more specifically, that testing positive for cocaine, would violate his probation terms, he has failed to provide us with any supportive documentation. Without any record proving the Defendant's probations terms legally permitted him to use cocaine, we have no choice but to assume the probation order contained a condition that he not use illegal drugs. In support of this assumption, we point out that the warrant for his arrest states the Defendant violated "Condition #8: The Defendant has failed to abstain from illegal drug use by testing positive for cocaine on 12/28/06."
Additionally, a defendant is presumed to have notice that one of his conditions of probation is to not violate the criminal code. "[U]nlike other conditions of probation that may be imposed, the Defendant is deemed to have notice that his . . . conduct must conform to the requirements of the law from the time of the law's enactment." State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn.Crim.App. 1997). One of the stated objectives of the Tennessee Criminal Code is to provide "fair warning" of prohibited conduct, with prohibited conduct being conduct that is defined as an offense. T.C.A. §§ 39-11-101(2) and -102 (a) (2006). If a person commits an offense in the state, that person is liable to be punished. T.C.A. § 39-11-103 (2006). Knowing possession of a controlled substance like cocaine is a criminal offense. T.C.A. § 39-17-418 (2006). The Defendant is deemed to have notice that, as a condition of his probation, he must conform his conduct to the requirements of the law, and thereby, not use cocaine. As such, the Defendant is not entitled to relief on this issue.
C. Sufficiency of Evidence
The Defendant claims the State presented insufficient evidence that he tested positive for cocaine. The State counters that the Defendant admitted failing several drug tests.
A trial court may revoke a sentence of probation if it determines by a preponderance of the evidence that the conditions of probation have been violated. T.C.A. § 40-35-311(e) (2006). The decision to revoke probation is in the sound discretion of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.Crim.App. 1991). The judgment of the trial court will be upheld on appeal unless there has been an abuse of discretion. State v. Anthony, 109 S.W.3d 377, 380 (Tenn.Crim.App. 2001). To find an abuse of discretion in a probation revocation case, an appellate court must determine that the record is void of any substantial evidence that would support the trial court's decision that a violation of the conditions of probation occurred. Id. (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978) and State v. Delp, 614 S.W.2d 395, 398 (Tenn.Crim.App. 1980)).
The trial court in this case said, "[I] listened to the testimony . . . regarding this exotic tea, and gave [him] some additional leeway to convince me that he was not being dishonest. . . . But I cannot find that he has not been dishonest with this Court; I find that he, in fact, has been." The court continued, saying, "that deceit standing alone is basis for denying probation. . . . And all this just doesn't make sense, but illegal drug use and drug abuse never makes sense."
On review, we conclude the evidence supports a revocation of the Defendant's probation. The Defendant himself, along with two probation officers, and two forensic toxicologists testified that he tested positive for cocaine while he was on probation. In fact, the trial court gave the Defendant a second chance: the Defendant was to not drink the tea during a specific time period between hearings and to continue his drug testing. The Defendant tested positive for cocaine during this time period, knowing the trial court ordered him not to drink the tea. This suffices as a preponderance of the evidence that the Defendant violated the condition of his probation when he tested positive for illegal drugs. As such, the Defendant is not entitled to relief on this issue.
D. Sentencing
The Defendant claims the trial court erroneously sentenced him, specifically taking issue with the trial court's statement that "less restrictive measure did not work." The State argues that the trial court properly sentenced the Defendant.
When a defendant challenges the length, range or manner of service of a sentence, this Court must conduct a de novo review on the record with a presumption that "the determinations made by the court from which the appeal is taken are correct." T.C.A. § 40-35-401(d) (2006). As the Sentencing Commission Comments to this section note, the burden is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing Comm'n Cmts. This means that if the trial court followed the statutory sentencing procedure, made findings of facts which are adequately supported in the record, and gave due consideration and proper weight to the factors and principles relevant to sentencing under the 1989 Sentencing Act, T.C.A. § 40-35-103 (2006), we may not disturb the sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The presumption does not apply to the legal conclusions reached by the trial court in sentencing a defendant or to the determinations made by the trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn.Crim.App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn.Crim.App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn.Crim.App. 1994).
In conducting a de novo review of a sentence, we must consider: (1) any evidence received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4) the arguments of counsel relative to sentencing alternatives, (5) the nature and characteristics of the offense, (6) any mitigating or enhancement factors, (7) any statements made by the defendant on his or her own behalf and (8) the defendant's potential or lack of potential for rehabilitation or treatment. See T.C.A. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.Crim.App. 2001).
In misdemeanor sentencing, the defendant is not entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn.Crim.App. 1994). Our Supreme Court has observed that "[i]n addition to the statutory considerations for issuing sentences of confinement, the misdemeanor sentencing statute merely requires a trial judge to consider enhancement and mitigating factors when calculating the percentage of a misdemeanor sentence to be served in confinement." State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). See T.C.A. § 40-35-302(d) Drawing a distinction between felony and misdemeanor sentencing, this Court has stated:
In felony sentencing, the trial court has an affirmative duty to state in the record, either orally or in writing, which enhancement and mitigating factors it found and its findings of fact. Tenn. Code Ann. § 40-35-209(c) (1997); Tenn. Code Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). In contrast, the misdemeanor sentencing statute only requires that the trial court consider the enhancement and mitigating factors when calculating the percentage of the sentence to be served in actual confinement" prior to "consideration for work release, furlough, trusty status and related rehabilitative programs." Tenn. Code Ann. § 40-35-302(d) (1997); Troutman, 979 S.W.2d at 274.
State v. Russell, 10 S.W.3d 270, 278 (Tenn.Crim.App. 1999). Our statutory system concerning misdemeanor sentencing is designed to provide trial courts with continuing jurisdiction and a great deal of flexibility. See T.C.A. § 40-35-302(d), Sentencing Comm'n Cmts.; State v. Boyd, 925 S.W.2d 237, 244 (Tenn.Crim.App. 1995).
Specific to alternative sentencing, "even though probation must be automatically considered as a sentencing option for eligible defendants, the defendant is not automatically entitled to probation as a matter of law." T.C.A. § 40-35-303 (2006), Sentencing Comm'n Cmts. When sentencing the defendant to confinement, a trial court should consider:
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant
T.C.A. § 40-35-103 (2006).
The Defendant previously pled guilty to reckless endangerment but was released on probation pursuant to the granting of judicial diversion. In revoking the Defendant's judicial diversion probation and sentencing him to six months of incarceration for his conviction of reckless endangerment, the trial court said, "I find that measures less restrictive than confinement have frequently and recently been applied unsuccessfully to this Defendant, and, again, that he has been dishonest on numerous occasions with the Court and is not an appropriate candidate for probation."
We conclude the trial court properly sentenced the Defendant. Reckless endangerment is a Class A misdemeanor, which is punishable by up to eleven months and twenty-nine days of incarceration and a $2500 fine. T.C.A. §§ 39-13-103, 40-35-111(e) (2006). The six month sentence imposed is within the statutory maximum permitted for reckless endangerment. Moreover, while he was on probation, the Defendant tested positive for cocaine at least twice, with one of those being after the trial court gave him orders to not drink the Zurit tea. This illegal activity while on probation shows that less restrictive measures than confinement have been unsuccessfully applied to the Defendant. As such, the Defendant is not entitled to relief on this issue.
III. Conclusion
After a thorough review of the record and the applicable law, we conclude: (1) the trial court had subject matter jurisdiction over the Defendant's probation revocation; (2) the Defendant received due process with respect to his probation conditions; (3) the State presented sufficient evidence that the Defendant violated his probation terms; and (4) the trial court appropriately and correctly sentenced the Defendant. As such, we affirm the trial court's judgment.