Opinion
No. M2006-01807-CCA-R3-CD.
Assigned on Briefs February 20, 2007.
Filed March 28, 2007.
Appeal from the Circuit Court for Rutherford County; No. F-55124; James K. Clayton, Jr., Judge.
Judgment of the Circuit Court Affirmed.
Gerald L. Melton, District Public Defender; Russell N. Perkins, Assistant Public Defender, for the appellant, Ronnie Lee Johns.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.
DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ALAN E. GLENN, JJ., joined.
OPINION
The Defendant, Ronnie Lee Johns, appeals from the judgment of the Rutherford County Circuit Court revoking his probation and ordering that his eight-year sentence be served in the Department of Correction. On appeal, the Defendant raises a single issue for our review: whether the trial court erred by refusing his request for a transcript of a prior proceeding in his case. We find no error or abuse of discretion in the trial court's denial of the transcript. The judgment is affirmed.
Factual Background
On November 18, 2004, the Defendant pled guilty to Class B felony possession of .5 grams or more of cocaine, see Tenn. Code Ann. § 39-17-417, and Class E felony evading arrest, see id. § -16-603. As a Range I, standard offender, the Defendant received concurrent terms of eight years and two years, respectively. This effective eight-year sentence was to be suspended following service of 150 days, and the Defendant was to be placed on probation.
On December 31, 2004, the Defendant failed to report for his jail service as ordered and, thereafter, the trial court issued a capias for his arrest. On January 19, 2005, the Defendant was arrested and began serving his sentence.
Following his service of 150 days in jail, the Defendant filed a petition for a suspended sentence. A hearing was held on the petition on July 18, 2005. The trial court granted the Defendant's request for a suspended sentence, and the Defendant was placed on supervised probation for the remainder of his eight-year sentence. The Defendant received credit for time served.
The suspended sentence order states that, "[a]ny violation of probation[,] and defendant agrees to serve sentence and waive application for a suspended sentence. (Unless basis is inability to pay)." The Defendant's signature appears immediately to the right of this provision and again at the bottom of this order.
In November of 2005, the Defendant failed a drug test, testing positive for marijuana, and a violation warrant was issued. The warrant was amended on May 24, 2006, to include a positive test for marijuana in May of 2006. The warrant was again amended on June 29, 2006, alleging another positive test for marijuana in June of 2006.
According to the lab report, the Defendant also tested positive for Phenobarbital at this time. However, this information was not included in the amended warrant.
A probation revocation hearing was held on July 24, 2006. At the outset of the hearing, the Defendant requested a transcript of the July 18, 2005 hearing on his petition for a suspended sentence because he did "not remember any agreement" to waive application for a suspended sentence upon any future violation of probation. The State objected to providing a transcript at the taxpayers' expense.
Thereafter, the Defendant was called to testify and stated that his signature did appear next to the relevant language on the suspended sentence order and at the bottom of the order. The Defendant further testified that he was represented by counsel at the time.
Due to time constraints, the hearing was continued to July 26, 2006. Then, the trial court ruled that, "under the circumstances[,]" a transcript was not needed, reasoning as follows:
I think that's what he agreed to, and he testified that he signed that and that he was represented by counsel at the time, and I'm sure it was explained to him. And I think it would be just a waste of taxpayers' money to have a transcript for it. If he wants to provide a transcript, that's fine.
The laboratory reports, along with the required accompanying affidavits prepared in accordance with Tennessee Code Annotated section 40-35-311(c)(1), were entered into the record. Each report stated that the method of testing was "gas chromatography/mass spectrometry" and that the result was consistent with "the recent and regular use of Marijuana prior to specimen collection."
At the hearing, defense counsel stated that there initially was some concern of a "false positive" on the drug tests. However, counsel then acknowledged that the lab technician's affidavit showed that the method of drug testing used was the method suggested by the Defendant's doctor and, therefore, there was not "much else" defense counsel could do.
At the conclusion of the hearing, the trial court revoked the Defendant's probation based upon his failure of these drug tests. The court ordered the balance of the sentence to be served in the Department of Correction. It is from this determination that the Defendant now appeals.
ANALYSIS
The Defendant does not challenge the grounds supporting revocation but argues that the trial court erred by failing to provide him, at no charge, with a complete transcript of the July 18, 2005 hearing on his petition for a suspended sentence. The Defendant claims that, because he did "not remember any agreement" to waive application for a suspended sentence upon any future violation of probation, he needed the transcript to determine whether the provision in the suspended sentence order was explained to him and whether he understood its meaning. He thus maintains that the trial court denied him due process.
It is well established that "an indigent defendant in a criminal prosecution must be provided with the tools of an adequate defense or appeal when those tools are available for a price to other defendants."State v. Elliott, 524 S.W.2d 473, 475 (Tenn. 1975) (citations omitted);see also Tenn. Code Ann. §§ 40-14-303,-309,-312. Among the tools generally provided is a free transcript of prior proceedings in the defendant's own case, "where the transcript [is] needed to vindicate a legal right." Elliott, 524 S.W.2d at 476. A trial judge may, in his or her discretion, order that a transcript of prior proceedings in an indigent defendant's own case be furnished to him if it appears that it is necessary in the interests of justice. Id.; see also Bowers v. State, 512 S.W.3d 592, 594 (Tenn.Crim.App. 1974). "[T]here is no positive duty to furnish transcripts of prior proceedings. . . ."Bowers, 512 S.W.3d at 594 (citation omitted). The United States Supreme Court has identified two factors that are relevant to the determination of need: "(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript." Britt v. North Carolina, 404 U.S. 226, 227 (1971); see also Elliot, 524 S.W.2d at 476. Under the circumstances present here, we review a trial court's determination of whether to provide a transcript under an abuse of discretion standard. See Bowers, 512 S.W.2d at 594.
The transcript of the July 18, 2005 hearing is not an "instrument needed to vindicate a legal right" under the facts of this case.See Elliot, 524 S.W.2d at 477. Most relevant to this case is whether a preponderance of the evidence established that the Defendant violated the conditions of his probation, see Tenn. Code Ann. §§ 40-35-310,-311(e); State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001), not whether the Defendant understood the provision contained in the suspended sentence order. The requested transcript does not aid the Defendant in challenging the evidence supporting revocation. Stated another way, the Defendant has not shown the value of the transcript of the previous hearing in connection with the revocation hearing. Additionally, the Defendant's signature immediately to the right of the provision and at the bottom of the suspended sentence order and the fact that he was represented by counsel at the time alleviate the need for a transcript.
Based solely upon the three failed drug tests, the trial court was statutorily authorized to reinstate the Defendant's original eight-year sentence. See Tenn. Code Ann. §§ 40-35-310,-311(e),-36-106(e)(4). Therefore, we conclude that the Defendant did not have a "right" to a free transcript of the July 18, 2005 hearing, and we find no error or abuse of discretion in the trial court's denial of the transcript.
We note that the legislature has recently amended several provisions of the Criminal Sentencing Reform Act of 1989, said changes becoming effective June 7, 2005. However, the Defendant's crime in this case occurred prior to June 7, 2005, and the Defendant did not elect to be sentenced under the provisions of the Act by executing a waiver of his ex post facto protections. See 2005 Tenn. Pub. Acts ch. 353 § 18. Therefore, this case is not affected by the 2005 amendments, and the statutes cited in this opinion are those that were in effect at the time the instant crimes were committed.
CONCLUSION
Based upon the foregoing reasoning and authorities, we conclude that no violation of the Defendant's constitutional right of due process resulted from the trial court's refusal to provide a transcript of a prior proceeding in his case. The judgment of the Rutherford County Circuit Court revoking the Defendant's probation and ordering reinstatement of his eight-year sentence in the Department of Correction is affirmed.