IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 September 10, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00220 ) Appellee, ) ) ) ANDERSON COUNTY VS. ) ) HON. JAMES B. SCOTT, JR. JOSEPH J. BROOKS, ) JUDGE ) Appe llant. ) (Prob ation D enial)
FOR THE APPELLANT: FOR THE APPELLEE:
NANCY MEYER JOHN KNOX WALKUP Office of the Public Defender Attorney General and Reporter 101 South Main Street Suite 450 MARVIN E. CLEMENTS, JR. Clinton, TN 37716 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
JAMES N. RAMSEY District Attorney General
JAN HICKS Assistant District Attorney 127 Anderson County Courthouse Clinton, TN 37716
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
An Anderson County grand jury indicted Appellant on three counts of rape
of a child and three counts of incest, alleging sexual penetration of MT,
Appe llant’s step-daugh ter.1 On Au gust 19 , 1996, A ppellant e ntered a plea of nolo
contende re to the re duce d cha rge of th ree co unts o f simp le rape, for an agreed
sentence of eight years on each count, with the sentences to be run concurrently.
The trial court conducted a probation hearing on February 7, 1997, after which
the trial court denied probation and ordered Appellant to serve his sentence in the
Tennessee Department of Correction. Appellant appeals from this denial of
probation.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
When a defendant com plains of his or h er sente nce, we must co nduct a
de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d). The burden of showing that the sentence is improper is upon the
appealing party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission
Commen ts. This presumption, however, is conditioned upon an a ffirmative
showing in the record that the trial court considered the sentencing principles and
all the releva nt facts an d circum stance s. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
1 It is the policy of this Court to refrain from disclosing the names of minor victims of sexual assault. Instead we will refer to the victim by her initials.
-2- The Sentencing Reform Act of 1989 established specific procedures which
must be followed in sentencing. These procedures, codified at Tennessee Code
Annotated § 40-35-210, mandate the trial court’s consideration of the following:
(1) The eviden ce, if any, received at the trial and the sentencing hearing; (2) [t]he presen tence re port; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and c harac teristics of the criminal cond uct invo lved; (5 ) [e]vide nce a nd info rmatio n offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his ow n beh alf about sentencing.
Tenn. Code Ann. § 40-35 -210. In determ ining w hethe r incarc eration is
appropriate the trial court must take into account the following principles:
(1) (A) Confinem ent is necess ary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct; (B) Confin eme nt is neces sary 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 restrictiv e than confin eme nt have freque ntly or recently b een ap plied uns uccess fully to the de fendan t; (2) The sentence imposed should be no greater than that deserved for the offense committed; (3) Inequalities in senten ces that a re unrela ted to a purpos e of this chapter should be avoided; (4) The sentence imposed sho uld be the least se vere mea sure necessa ry to achieve the pu rpose s for wh ich the sente nce is imposed; (5) The potential o r lack of po tential for the rehabilitation or treatment of the de fenda nt sho uld be considered in determining the sentence alternative or length of a term to be imposed . The length o f a term of probation may reflect the length of a treatment or rehabilitation program in which participation is a condition of the sentence; and (6) Trial judges a re enco uraged to use altern atives to incarceration that include requirements of reparation, victim compensation and/or community service.
-3- Tenn. Code Ann. § 40-35-103. Apart from a stated desire to avoid depreciating
the seriousness of the offense, and the need for deterrence, the record does not
reflect consideration by the trial judge of the criteria outlined abo ve. We therefore
review de novo the determination to deny probation in this case.
Irrespective of whether the sentence actually imposed by the trial court is
reviewed with or without a presumption of correctness, on appeal the burden of
showing the impropriety of the sentence and the entitlement to probation remains
with the defendant. Sentencing Commission Comments, Tenn. Code Ann. § 40-
35-210 (b)(3) (199 0); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.
1995). As a Ra nge I, standard offen der, convicted of a Class B felony, Appellant
is not presu mptive ly entitled to a sentence other than continuous confinement for
the duration of the term of years imposed. Tenn. Code Ann. § 39-13-503(b) and
§ 40-35-10 2(6) (Supp. 1 994).
The presentence report indicates that the Appellant is a 47 year old man
suffering from alcoho lism. He has a history of arrests and c onvictio ns for p ublic
intoxication and driving under the influence of an intoxicant. Although he has
been in and out of treatment for alcoholism since the 1970's, these efforts appear
to have been largely unsuccessful up until the commission of the present
offenses. Th e Appellant also has a poo r employm ent history.
The Appellan t prese nted p roof tha t he wa s, at the time o f sente ncing,
employed and had completed in-patient treatment for alcoholism. He was also
participating in out-patient treatment and he had stayed away from M.T. The
-4- Appellant stated that he was not a danger to the community, and he presented
two character witnesses in support of his request for probation.
At the close of the hearing, the trial c ourt de nied p robatio n in ord er to av oid
depreciating the seriousness of the offense and in order to deter others from
committing the same type of offense.
Need to Avoid Depreciating the Seriousness of the Offense
When the legislature has determined that probation is permissible for an
offense, in order for probation to be denied on the b asis of a nee d to avo id
depreciating the seriousness of the offense, “the circumstances of the offense as
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 September 10, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00220 ) Appellee, ) ) ) ANDERSON COUNTY VS. ) ) HON. JAMES B. SCOTT, JR. JOSEPH J. BROOKS, ) JUDGE ) Appe llant. ) (Prob ation D enial)
FOR THE APPELLANT: FOR THE APPELLEE:
NANCY MEYER JOHN KNOX WALKUP Office of the Public Defender Attorney General and Reporter 101 South Main Street Suite 450 MARVIN E. CLEMENTS, JR. Clinton, TN 37716 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
JAMES N. RAMSEY District Attorney General
JAN HICKS Assistant District Attorney 127 Anderson County Courthouse Clinton, TN 37716
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
An Anderson County grand jury indicted Appellant on three counts of rape
of a child and three counts of incest, alleging sexual penetration of MT,
Appe llant’s step-daugh ter.1 On Au gust 19 , 1996, A ppellant e ntered a plea of nolo
contende re to the re duce d cha rge of th ree co unts o f simp le rape, for an agreed
sentence of eight years on each count, with the sentences to be run concurrently.
The trial court conducted a probation hearing on February 7, 1997, after which
the trial court denied probation and ordered Appellant to serve his sentence in the
Tennessee Department of Correction. Appellant appeals from this denial of
probation.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
When a defendant com plains of his or h er sente nce, we must co nduct a
de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d). The burden of showing that the sentence is improper is upon the
appealing party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission
Commen ts. This presumption, however, is conditioned upon an a ffirmative
showing in the record that the trial court considered the sentencing principles and
all the releva nt facts an d circum stance s. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
1 It is the policy of this Court to refrain from disclosing the names of minor victims of sexual assault. Instead we will refer to the victim by her initials.
-2- The Sentencing Reform Act of 1989 established specific procedures which
must be followed in sentencing. These procedures, codified at Tennessee Code
Annotated § 40-35-210, mandate the trial court’s consideration of the following:
(1) The eviden ce, if any, received at the trial and the sentencing hearing; (2) [t]he presen tence re port; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and c harac teristics of the criminal cond uct invo lved; (5 ) [e]vide nce a nd info rmatio n offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his ow n beh alf about sentencing.
Tenn. Code Ann. § 40-35 -210. In determ ining w hethe r incarc eration is
appropriate the trial court must take into account the following principles:
(1) (A) Confinem ent is necess ary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct; (B) Confin eme nt is neces sary 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 restrictiv e than confin eme nt have freque ntly or recently b een ap plied uns uccess fully to the de fendan t; (2) The sentence imposed should be no greater than that deserved for the offense committed; (3) Inequalities in senten ces that a re unrela ted to a purpos e of this chapter should be avoided; (4) The sentence imposed sho uld be the least se vere mea sure necessa ry to achieve the pu rpose s for wh ich the sente nce is imposed; (5) The potential o r lack of po tential for the rehabilitation or treatment of the de fenda nt sho uld be considered in determining the sentence alternative or length of a term to be imposed . The length o f a term of probation may reflect the length of a treatment or rehabilitation program in which participation is a condition of the sentence; and (6) Trial judges a re enco uraged to use altern atives to incarceration that include requirements of reparation, victim compensation and/or community service.
-3- Tenn. Code Ann. § 40-35-103. Apart from a stated desire to avoid depreciating
the seriousness of the offense, and the need for deterrence, the record does not
reflect consideration by the trial judge of the criteria outlined abo ve. We therefore
review de novo the determination to deny probation in this case.
Irrespective of whether the sentence actually imposed by the trial court is
reviewed with or without a presumption of correctness, on appeal the burden of
showing the impropriety of the sentence and the entitlement to probation remains
with the defendant. Sentencing Commission Comments, Tenn. Code Ann. § 40-
35-210 (b)(3) (199 0); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.
1995). As a Ra nge I, standard offen der, convicted of a Class B felony, Appellant
is not presu mptive ly entitled to a sentence other than continuous confinement for
the duration of the term of years imposed. Tenn. Code Ann. § 39-13-503(b) and
§ 40-35-10 2(6) (Supp. 1 994).
The presentence report indicates that the Appellant is a 47 year old man
suffering from alcoho lism. He has a history of arrests and c onvictio ns for p ublic
intoxication and driving under the influence of an intoxicant. Although he has
been in and out of treatment for alcoholism since the 1970's, these efforts appear
to have been largely unsuccessful up until the commission of the present
offenses. Th e Appellant also has a poo r employm ent history.
The Appellan t prese nted p roof tha t he wa s, at the time o f sente ncing,
employed and had completed in-patient treatment for alcoholism. He was also
participating in out-patient treatment and he had stayed away from M.T. The
-4- Appellant stated that he was not a danger to the community, and he presented
two character witnesses in support of his request for probation.
At the close of the hearing, the trial c ourt de nied p robatio n in ord er to av oid
depreciating the seriousness of the offense and in order to deter others from
committing the same type of offense.
Need to Avoid Depreciating the Seriousness of the Offense
When the legislature has determined that probation is permissible for an
offense, in order for probation to be denied on the b asis of a nee d to avo id
depreciating the seriousness of the offense, “the circumstances of the offense as
committed mus t be es pecia lly violent, horrifyin g, sho cking , repre hens ible,
offensive, or otherwise of a excessive or exaggerate d degree.” State v. Hartley,
818 S.W .2d 370, 374 (Tenn. Crim . App. 1991 ).2 Although the Appellant’s actions
in this case are disgustin g, we ca nnot sa y that, as co mm itted, this cas e mee ts the
Hartley standard.
Need for Deterrence
Ordinarily, the denial of probation based on the need for deterrence of
other potential offenders must be supported by specific evidence of the ne ed in
the comm unity for deterrence in the commission of crimes like those committed
2 The State cites in its brief Tennessee Code Annotated § 37-1-601(a) as a statement by the Gen eral A sse mb ly of Te nne sse e tha t the p ublic p olicy of Ten nes see favo rs se vere punis hm ent fo r child sex abusers. While this code section does embody a legislative expression of concern about the incidence of child sexual abuse, the General Assembly has nevertheless seen fit to retain probation as an alternative sentence for many child sex abusers.
-5- by the defen dant. State v. Ashby, 823 S.W .2d 166, 170 (Tenn. 199 1). However,
no extrinsic proof is required to establish the need for deterrence in the
commission of certain criminal offenses; the need for incarceration of offen ders
in these cases is self-evident. State v. Dam on W . Byrd, No. 01C01-9503-CR-
00083 (Tenn. Crim. A pp. Aug ust 1, 199 6); State v. Pinkham, No. 02C01-9502-
CR-00040 (Tenn. Crim. App. May 24 , 1996); State v. Millsaps, 920 S.W.2d 267,
271 (Tenn. Crim. App. 1995). Sexual mole station of child ren is an offense w here
the need fo r deterren ce is obvio us. See State v. Vines, No. 95 1991 WL 21603,
at *1 (Ten n. Crim. A pp. Feb . 22, 1991 ); See also State v. K ratts, No. 193, 1988
W L 633512, at *4 (T enn. C rim. A pp. Ju ne 22 , 1988 )(com men ting tha t “there is
a public awareness of the need to deter an individual who would sexually abuse
children” and that “the need to deter . . . is obvious”). Thus, we conclude that
probation was properly denied on the basis of the need to deter others from
comm itting crime s similar to th ose of the Appella nt. 3
Accordingly, the judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ THOMAS T. WOODALL, JUDGE
3 Although we have concluded that the need to deter child sex abuse cases through incarceration is obv ious , the q ues tion o f the n eed for ex trinsic proo f on th is iss ue is t he su bjec t of so me disag reem ent in the cou rts. W hen ther e is abun dant em pirical and a necdo tal evidenc e conc erning the num ber of inc idents child s ex ab use in our com mu nities , law e nfor cem ent e fforts to cu rb it, an d the prob lem s ca use d by it, it esc ape s us why pr ose cuto rs in m any ins tanc es fa il to intro duc e suc h pro of wh en op pos ing pr oba tion in these types of case.
-6- ___________________________________ WILLIAM B. ACREE, JR. SPECIAL JUDGE
-7-