IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED SEPTEMBER 1998 SESSION November 30, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) C.C.A. NO. 03C01-9710-CC-00462 Appellee, ) ) BLOUNT COUNTY VS. ) ) HON. RICHARD R. BAUMGARTNER, GERALD V. KESSLER, ) JUDGE (By Interchange) ) Appellee. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
JOE COSTNER JOHN KNOX WALKUP 315 High St. Attorney General & Reporter Maryville, TN 37804 ELIZABETH B. MARNEY Asst. Attorney General 425 Fifth Ave., North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243-0493
MICHAEL L. FLYNN District Attorney General
MS. KIRK ANDREWS Asst. District Attorney General Blount County Courthouse 363 Court St. Maryville, TN 37804-5906
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
On July 28, 1998, the defendant pled guilty to statutory rape and, pursuant
to a plea bargain agreement, received a sentence of one year as a Range I standard
offender. On September 12, 1997, the trial court held a sentencing hearing and
sentenced the defendant to serve three months of his sentence in custody under a work
release program and nine months on probation. The defendant now appeals this
sentence.
After a review of the record and the applicable law, we affirm the
defendant’s sentence.
The defendant’s conviction stems from his involvement with a young girl.
In September of 1995, the defendant met the victim at a football game when she was
fifteen years old. Several months later, the defendant began coaching a girls’ indoor
soccer team. The victim was also involved in soccer and her team often practiced with
the team the defendant coached.
A few months later, the defendant and the victim began contacting each
other away from soccer practice. They often spoke on the phone or exchanged letters.
The defendant would tell the victim “bedtime stories” at night over the phone.1 On one
occasion the defendant, while picking up his daughter from school, gave the victim a
sexually explicit letter entitled “Lover’s Dream.”
The defendant continued his involvement with the victim even after the
1 These “bedtime stories” were described at the sentencing hearing as “phone sex” between the d efen dan t and the vic tim.
2 victim’s father had asked the defendant not to have any contact with the victim. In June
of 1996, the defendant went to a church where the victim was a leader in a Girl Scout
Day Camp. The defendant went inside the church and asked one of the adult leaders
if he could speak with the victim. The victim left the classroom and went into the hallway
where she and the defendant embraced. It was during this embrace that the defendant
put his fingers in her vagina.
The defendant now contends that the trial court did not properly consider
the sentencing principles and all relevant facts and circumstances and therefore this
Court should review this case upon a standard of de novo without a presumption of
correctness. Further, the defendant contends he is entitled to full probation or at least
a reduction in the time he is required to serve.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d) Sentencing Commission Comments. This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).
The defendant bears the burden of showing that the sentence was
improper. Id. In determining whether the defendant has met this burden, this Court must
consider (a) the evidence adduced at trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the
nature and characteristics of the offense; and (f) the defendant’s potential or lack of
potential for rehabilitation or treatment. T.C.A. §§ 40-35-103(5), 40-35-210(b).
3 The defendant contends that this Court “should review the trial court’s
sentencing decision upon a standard of de novo without a presumption that the trial
court’s decision was correct because the trial court did not properly consider the
sentencing principles and all relevant facts and circumstances.” Specifically, the
defendant argues that the trial court did not properly consider the sentencing principle
that requires it to presume that the defendant is a favorable candidate for alternative
sentencing options, that the trial court improperly based its sentence upon the need for
deterrence of others likely to commit similar crimes, and that the trial court improperly
sentenced the defendant based on the need to avoid depreciating the seriousness of the
crime.
Although the defendant is correct in that the trial judge did not expressly
state that the defendant was entitled to a presumption of suitability for alternative
sentencing, after a review of the record it is clear the trial judge considered sentencing
principles, the defendant’s criminal history, the history of this type of crime in the
community, the seriousness of the offense as affecting public morals, the defendant’s
suitability for rehabilitation, and applicable mitigating and enhancement factors. It also
appears that the trial judge did presume the defendant was a good candidate for
alternative sentencing as the defendant was sentenced to nine months of full probation
and three months in a work release program. In light of the foregoing, the trial court’s
sentence is entitled to a presumption of correctness even though the presumption of
suitability for alternative sentencing was not specifically stated by the trial judge.
The defendant further insists that he should have received full probation or
a reduced sentence of incarceration “because the offense did not involve force or
physical harm and because the defendant who supports two children and is an active
4 member in his church and community, has no significant criminal history, has cooperated
with the police in the investigation of the offense, has taken initiative to seek
rehabilitation, and has expressed remorse for his actions.”
We note that the defendant has the burden of establishing suitability for full
probation. T.C.A. § 40-35-303(b). “To meet the burden of establishing suitability for full
probation, the defendant must demonstrate that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990)). The defendant has not met this burden.
The defendant’s argument that the absence of force or physical harm in this
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED SEPTEMBER 1998 SESSION November 30, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) C.C.A. NO. 03C01-9710-CC-00462 Appellee, ) ) BLOUNT COUNTY VS. ) ) HON. RICHARD R. BAUMGARTNER, GERALD V. KESSLER, ) JUDGE (By Interchange) ) Appellee. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
JOE COSTNER JOHN KNOX WALKUP 315 High St. Attorney General & Reporter Maryville, TN 37804 ELIZABETH B. MARNEY Asst. Attorney General 425 Fifth Ave., North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243-0493
MICHAEL L. FLYNN District Attorney General
MS. KIRK ANDREWS Asst. District Attorney General Blount County Courthouse 363 Court St. Maryville, TN 37804-5906
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
On July 28, 1998, the defendant pled guilty to statutory rape and, pursuant
to a plea bargain agreement, received a sentence of one year as a Range I standard
offender. On September 12, 1997, the trial court held a sentencing hearing and
sentenced the defendant to serve three months of his sentence in custody under a work
release program and nine months on probation. The defendant now appeals this
sentence.
After a review of the record and the applicable law, we affirm the
defendant’s sentence.
The defendant’s conviction stems from his involvement with a young girl.
In September of 1995, the defendant met the victim at a football game when she was
fifteen years old. Several months later, the defendant began coaching a girls’ indoor
soccer team. The victim was also involved in soccer and her team often practiced with
the team the defendant coached.
A few months later, the defendant and the victim began contacting each
other away from soccer practice. They often spoke on the phone or exchanged letters.
The defendant would tell the victim “bedtime stories” at night over the phone.1 On one
occasion the defendant, while picking up his daughter from school, gave the victim a
sexually explicit letter entitled “Lover’s Dream.”
The defendant continued his involvement with the victim even after the
1 These “bedtime stories” were described at the sentencing hearing as “phone sex” between the d efen dan t and the vic tim.
2 victim’s father had asked the defendant not to have any contact with the victim. In June
of 1996, the defendant went to a church where the victim was a leader in a Girl Scout
Day Camp. The defendant went inside the church and asked one of the adult leaders
if he could speak with the victim. The victim left the classroom and went into the hallway
where she and the defendant embraced. It was during this embrace that the defendant
put his fingers in her vagina.
The defendant now contends that the trial court did not properly consider
the sentencing principles and all relevant facts and circumstances and therefore this
Court should review this case upon a standard of de novo without a presumption of
correctness. Further, the defendant contends he is entitled to full probation or at least
a reduction in the time he is required to serve.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d) Sentencing Commission Comments. This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).
The defendant bears the burden of showing that the sentence was
improper. Id. In determining whether the defendant has met this burden, this Court must
consider (a) the evidence adduced at trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the
nature and characteristics of the offense; and (f) the defendant’s potential or lack of
potential for rehabilitation or treatment. T.C.A. §§ 40-35-103(5), 40-35-210(b).
3 The defendant contends that this Court “should review the trial court’s
sentencing decision upon a standard of de novo without a presumption that the trial
court’s decision was correct because the trial court did not properly consider the
sentencing principles and all relevant facts and circumstances.” Specifically, the
defendant argues that the trial court did not properly consider the sentencing principle
that requires it to presume that the defendant is a favorable candidate for alternative
sentencing options, that the trial court improperly based its sentence upon the need for
deterrence of others likely to commit similar crimes, and that the trial court improperly
sentenced the defendant based on the need to avoid depreciating the seriousness of the
crime.
Although the defendant is correct in that the trial judge did not expressly
state that the defendant was entitled to a presumption of suitability for alternative
sentencing, after a review of the record it is clear the trial judge considered sentencing
principles, the defendant’s criminal history, the history of this type of crime in the
community, the seriousness of the offense as affecting public morals, the defendant’s
suitability for rehabilitation, and applicable mitigating and enhancement factors. It also
appears that the trial judge did presume the defendant was a good candidate for
alternative sentencing as the defendant was sentenced to nine months of full probation
and three months in a work release program. In light of the foregoing, the trial court’s
sentence is entitled to a presumption of correctness even though the presumption of
suitability for alternative sentencing was not specifically stated by the trial judge.
The defendant further insists that he should have received full probation or
a reduced sentence of incarceration “because the offense did not involve force or
physical harm and because the defendant who supports two children and is an active
4 member in his church and community, has no significant criminal history, has cooperated
with the police in the investigation of the offense, has taken initiative to seek
rehabilitation, and has expressed remorse for his actions.”
We note that the defendant has the burden of establishing suitability for full
probation. T.C.A. § 40-35-303(b). “To meet the burden of establishing suitability for full
probation, the defendant must demonstrate that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990)). The defendant has not met this burden.
The defendant’s argument that the absence of force or physical harm in this
case should be considered as a factor in granting probation is meritless. The defendant
pled guilty to statutory rape. This offense does not require the use of force or physical
harm.
The defendant’s contention that because he supports two children he
should be granted full probation is meritless as well. The defendant was sentenced to
a work release program while in custody. As such, it is clear the defendant can continue
to support his children.
The defendant also contends that because he is an active member in his
church and the community he should be granted full probation. We note that it was, in
part, the defendant’s active participation in the community as a coach on a local team
that helped him become acquainted with the victim. This contention is also without merit.
The defendant argues that since he has no significant criminal history, has
5 cooperated with the police in the investigation, has taken the initiative to seek
rehabilitation, and has expressed remorse for his actions, he should be granted full
probation. These contentions are also without merit. We note that the defendant
continued his relationship with the victim even after her father had asked that he stay
away from her. The defendant also gave the victim a Christmas present after he had
been in counseling for several months. The defendant actively pursued the victim even
going so far as to stand on the top of a hill close to a swimming pool the victim frequented
with signs counting the days until her sixteenth birthday. 2
In light of the foregoing, it is clear the defendant has not established his
suitability for full probation. As such, it was not error for the trial court to sentence the
defendant to three months in custody on a work release program and nine months on
probation.
Accordingly, the defendant’s sentences are affirmed.
______________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ JOSEPH M. TIPTON, Judge
______________________________ DAVID G. HAYES, Judge
2 Appar ently, the victim ’s sixteen th birthday wa s the day the defend ant and th e victim w ere to consummate their relationship.