State v. Butler

• Docket Number: W2023-00566-CCA-R3-CD
• Decision Date: 28 November 2023
• Parties: STATE OF TENNESSEE v. JOHN BUTLER
• Court: Tennessee Court of Criminal Appeals

1

STATE OF TENNESSEE
v.
JOHN BUTLER

No. W2023-00566-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Jackson

November 28, 2023

Assigned on Briefs October 3, 2023

Appeal from the Criminal Court for Shelby County No. W2100939, W2100942, C2104512, C1204513 Paula L. Skahan, Judge

The Appellant, John Butler, entered a guilty plea to three counts of aggravated assault and one count of reckless endangerment with a deadly weapon and was placed on judicial diversion with a probationary period of six years. The State subsequently alleged that the Appellant violated his probation, and, following a hearing, the trial court revoked the Appellant's diversion and entered judgments of conviction imposing an effective sentence of three years to be served in confinement. In this appeal, the Appellant contends the trial court erred in revoking the Appellant's diversion and in ordering confinement. Upon our review, we affirm the judgments of the trial court.

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

Phyllis Aluko, District Public Defender, and Barry W. Kuhn (on appeal) and Nick Cloud (at trial), Assistant District Public Defenders, for the Appellant, John Butler, IV.

Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney General; Steve Mulroy, District Attorney General; and Theresa McCusker, Assistant District Attorney General, for the Appellee, State of Tennessee.

CAMILLE R. MCMULLEN, P.J., delivered the opinion of the court, in which J. ROSS DYER, J., joined. ROBERT H. MONTGOMERY, JR., filed a concurring opinion.

OPINION

CAMILLE R. MCMULLEN, PRESIDING JUDGE

By criminal information submitted in September 2021, the Appellant was charged with three counts of aggravated assault committed against three different individuals on May 6 and May 7, 2020, and one count of reckless endangerment with a deadly weapon against a group of individuals on May 6, 2020. The record does not provide an account of

2

the facts supporting the charges; however, at the revocation hearing, the trial court recalled that the Appellant "had gone into a store, gotten a beer out of the cooler, [and] attempted to steal it." When the store clerk told him he could not have the beer unless he paid for it, the Appellant "got angry, walked out of the store, got a black assault rifle out of the back passenger seat .... [w]alked back into the store, pointed the rifle at him and said[,] 'you don't know who I am. I got you.'" Several months later, the Appellant was at an event with his brother, who had gotten drunk, and was asked to leave. The Appellant returned with his brother, brandished guns at the people at the event, and fought with security. On December 1, 2021, the Appellant entered a guilty plea to each criminal information and was granted a judicial diversion with a probationary sentence of six years.

On August 16, 2022, a probation violation report was filed alleging various "technical only" violations committed by the Appellant. The report alleged that on August 2, 2022, the Appellant was referred to Harbor House for drug treatment for twenty-eight days and left the treatment facility without successfully completing treatment in violation of Rule 7. The report further alleged the Appellant failed to report and did not follow-up on the following special conditions ordered by the court: (1) referral to the Community Resource Center to address educational and residential needs by February 15, 2022; (2) referral to the Cognitive Based Intervention Program by June 15, 2022; and (3) referral to the forensic social worker for assessment on aggression, monthly drug screens, court cost installments, $10 per month by court order and restitution, all in violation of Rule 10. The report alleged the Appellant did not report to have a sanction put into place for his failure to attend the above resource programs. Additionally, the Appellant was scheduled for intake with Innovative Counseling for Drug Offender School on June 29, 2022, and he failed to attend the appointment. The appointment was rescheduled to July 13, 2022, and the Appellant again failed to attend. The Appellant also failed to report to have a sanction put into place for this violation. Although the Appellant had repeatedly failed to report or maintain contact with his probation officer, the report did not allege that the Appellant had absconded.

The report listed three prior sanctions imposed by community supervision: (1) on December 9, 2021, the Appellant was sanctioned to see a forensic social worker due to testing positive for cocaine; (2) on June 21, 2022, the Appellant was sanctioned to a curfew for ninety days for failing to report as instructed; and (3) on August 8, 2022, the Appellant was sanctioned to see a forensic social worker for testing positive for cocaine. The affidavit in support of the probation violation report was filed on September 30, 2022, and a warrant for the Appellant was issued the same day.

A revocation hearing was held on March 27, 2023, and D'Angelo Griffin, the Appellant's probation officer, testified consistently with the allegations in the violation report. Griffin testified that the Appellant had been placed on judicial diversion on

3

December 1, 2021, with an end date of December 1, 2027. Griffin had been supervising the Appellant for the entirety of his probation, and the Appellant had not complied with the terms and conditions of his probation. The Appellant was on diversionary probation and the juvenile sex offender registry, for which he was required to abide by the specialized conditions for juvenile sex offenders. Although the circumstances of the juvenile offenses are not entirely clear from the record, the probation violation report notes that the Appellant had been placed on the juvenile sex offender registry and classified as "a violent juvenile sex offender[.]" The Appellant originally met his juvenile sex offender registry requirements by reporting to the police; however, once he was placed on probation in this case, the Appellant's registry requirements under the juvenile sex offender registry were transferred to Griffin.

Griffin explained that the Appellant's failure to report to the probation and parole office had been a consistent problem. The Appellant was required to report to Griffin at the office once a month, and Griffin was also required to conduct monthly home or "in the field" visits. The last time Griffin saw the Appellant was "around August" at the Appellant's uncle's house. Because the Appellant "kept bouncing around from different houses," Griffin changed the Appellant's residential status to homeless and placed him on GPS monitoring on August 9, 2022. When the GPS device did not work correctly, Griffin required the Appellant to report to the office immediately to fix the device and further advised the Appellant that he would be required to report on Tuesdays and Fridays to have the device switched out. The Appellant never reported as directed, and August 9, 2022, was the last day Griffin saw the Appellant. Griffin initiated the paperwork for the instant violation report on August 16, 2022, and the Appellant was arrested on February 23, 2023, five months after the violation of probation warrant was issued.

Griffin testified that participating in monthly, random drug screens was also one of the Appellant's special conditions required from the court. Because the Appellant was not reporting, the monthly drug screens were incomplete. Griffin tried to accommodate the Appellant by conducting the drug screening where the Appellant was located; however, the Appellant was "hard to find" which prevented compliance with this condition. Under Griffin's supervision, the Appellant completed a single drug screen conducted at another person's home and tested positive for THC and cocaine. Based on the positive test, Griffin recommended the Appellant enroll in Harbor House, a twenty-eight-day rehabilitation program. Griffin was subsequently notified by an administrator at Harbor House that the Appellant enrolled in but did not complete the program.

Another court ordered condition required the Appellant to report to various community resource programs. Griffin referred the Appellant to the community resource center for educational and residential needs, and the Appellant was given a certain date to report. Griffin said the Appellant never reported as required. Griffin also referred the

4

Appellant to a cognitive-based intervention program for behavioral issues, and the Appellant missed the first appointment. When Griffin obtained approval for the Appellant to have a second appointment, the Appellant did not report again. Finally, Griffin said the Appellant had multiple sex offender registry violations for not registering. The Appellant was required "to register quarterly, and he [had] to register every month." The Appellant failed to do so. Asked if the Appellant provided an explanation for his failure to comply, Griffin said, "He would always be nonchalant or it would seem like he would -- maybe was, like, on a drug or he's just always didn't seem like he was present." Griffin opined that the Appellant was on drugs during their interaction, which was later confirmed by the positive drug test.

On cross-examination, Griffin agreed that he noted in the violation report that the above violations were technical-only. He also agreed that this was not "an absconding situation[.]" He explained, however, that "he [had not] done another violation because he had not been supervising [the Appellant] because [the Appellant has] been in warrant status. But technically [the Appellant] did abscond." Regardless, Griffin agreed the Appellant had no new arrests to his knowledge, there was no use of methamphetamine involved in this case, and this was not a graduated zero-tolerance violation.

At the close of the proof, defense counsel...