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Posted by: Tanja Trezise on Mar 12, 2012

Head Comment: With concurring opinion.

Court: TN Court of Appeals

Attorneys 1: William Caldwell Hancock, Nashville, Tennessee, for the appellant, Tracy Rose Baker.

Attorneys 2: D. Scott Parsley and Michael K. Parsley, Nashville, Tennessee, for the appellee, Jeffrey D. Baker.

Judge(s): CLEMENT

In this post-divorce dispute, the mother of the parties’ children appeals from an August 2010 order wherein the trial court revoked her probation for eighteen counts of criminal contempt and imposed the maximum sentence of 180 days. Pursuant to an April 2010 Agreed Order, Mother pled guilty to eighteen counts of criminal contempt and was sentenced to 180 days in jail; however, the entire sentence was suspended and she was placed on probation subject to revocation should she fail to comply with a plethora of conditions of probation. In July 2010, Father filed a Petition to revoke Mother’s probation. Following a hearing, the trial court found Mother in violation of her probation and ordered her to serve 180 days in jail. Mother appealed alleging that the Agreed Guilty Plea Order is void because the trial judge failed to conduct a hearing before accepting the guilty plea as required by Boykin v. Alabama, 395 U.S. 239 (1969) and Tennessee Rule of Criminal Procedure 11(b). This is not a direct appeal of the Agreed Guilty Plea Order, but a collateral attack of that order and, although this modest record suggests that the trial court may not have engaged Mother with the in-person colloquy required by Boykin and Rule 11(b), the record fails to establish that important fact. Thus, the Agreed Guilty Plea Order is not void on its face. However, the August order, specifically the reasonableness of the sentence of 180 days in confinement for violating terms of probation, is on direct appeal. Considering the unique facts of this case, we find an effective sentence of 180 days is clearly excessive in relation to Mother’s acts and omissions while on probation and modify the sentence to provide for a total period of confinement of thirty (30) days.