State v. Pam Costa

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9511-CR-00376
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JULY SESSION, 1996 December 4, 1997

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9511-CR-00376 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON . SETH N ORM AN PAM C OSTA, ) JUDGE ) Appe llant. ) (Direct Appeal-Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES R. RAY JOHN KNOX WALKUP Ray and Housch Attorney General and Reporter 211 T hird Aven ue No rth Nashville, TN 37219 REBECCA LYFORD Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

VICTOR S. JOHNSON District Attorney General

LILA STATOM Assistant District Attorney 222 Se cond A venue N orth Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE OPINION Appellant Pam Costa appeals as of right from a June 23, 1995 order

denying her Motion to Modify Sentence. On April 11, 1994, Appellant pled

guilty to rape of a minor and received a twelve year sentence. At the second

evidentiary hearing on Appellant’s motion, counsel for Appellant requested

that he be allowed to make an offer of proof. The presiding judge denied

counsel’s req uest. The issu e presented by Appellant is wh ether the trial court

erred in d enying A ppellant’s reques t to make an offer of p roof.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTUAL BACKGROUND

On April 11, 1994 Appellant pled guilty to rape of a minor and received

an agreed upon twelve ye ar sentence . As a standa rd Range I Offender,

Appellant’s earliest parole eligibility date was after service of 30% of her

sentence. On July 20, 1994, Appellant filed a Motion to Modify Sentence

pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. In her

Rule 35 motion, she alleged that her sentence should be modified because

she would not be paroled until she had served 50% of her sentence due to her

status as a sex offender and the alleged “policy” of the Parole Board to deny

parole o f sex offend ers until the y had se rved 50% to 60% of their sen tence. A

hearing wa s held on Fe bruary 24, 199 5. At the conclus ion of the Febru ary

hearing, the presiding judge permitted Appellant to supplement the record on

the statistical profile of sex offenders in the Department of Correction as

comp ared with other crim inals. The hearing was re-o pened on Jun e 24, 19 95.

At the June hearing, Appellant introduced the testimony of Gary Lukowski, the

-2- assistant for Planning and Research for the Tennessee Department of

Correction. He testified that sex offenders were granted parole with less

frequency than other criminals according to 1993/1994 statistics. He further

testified that the average sentence for a person convicted of rape in all grand

division s of Te nnes see w as twe lve yea rs with a n aver age in carce ration o f six

and a half years before parole was granted. Finally, Lukowski testified that

other sex offenders generally were not granted parole until they served over

50% of their sentences. Appellant then tried to introduce the parole records of

eleven current sex offender inmates in the Tennessee Prison for Women. The

presiding judge de nied cou nsel’s req uest to intro duce th ese rec ords.

Appellant claim s that these files wou ld have helped prove that sex offen ders

were required to serve 50% to 60% of their sentence before parole was

granted.

MOTION TO MODIFY SENTENCE

In her Motion to Modify Sentence, Appellant argues that her sentence

should be modified because of an alleged “policy” of the Parole Board to deny

sex offenders parole until fifty to sixty percent of their sentence has been

served. Because of this policy, Appellant argues that she will be denied her

thirty percent release e ligibility date and therefore will have to serve

substantially more time than she expected to serve. A sentence may be

modified under Rule 35 of the Tennessee Rules of Criminal Procedure when

the trial cou rt finds that the original se ntence must b e reduc ed “in the in terests

of justice.” State v. Hodges, 815 S.W .2d 151 ,154 (T enn. 19 91); State v. Irick,

861 S.W.2d 375, 276 (Tenn. Crim. App. 1993); Rule 35(b), Tenn. R. Crim. P.

(com miss ion co mm ents). H owev er, whe re a trial c ourt ac cepts a Rule

-3- 11(e)(1)(C) Tennessee Rule of Criminal Procedure guilty plea agreement, the

trial court should not modify the agreed upon sentence absent unusual

circum stance s, such a s unfore seen p ost-sen tencing d evelopm ent. State v.

McD onald , 893 S.W.2d 945, 947 (Tenn. Crim. App. 1994) citing State v.

Hargrove , 1993 WL 3007 59, at *2 (Ten n. 199 3). On appe al, the tria l court’s

disposition of a motion to modify will not be disturbed unless the appellant

court finds an abu se of disc retion. Irick, 861 S.W.2d at 376.

Appellant’s motion to modify her sentence was properly denied. She

has failed to demonstrate any unusual circumstances which would entitle her

to a reduced sentence. Any information regarding the release eligibility dates

of sex offen ders wo uld have been a vailable to A ppellant w hen sh e agree d to

the se ntenc e she receive d. The fact sh e did n ot disc over th is evide nce u ntil

after her plea does not entitle her to relief either through a reduction of

senten ce or po st-convictio n relief. See , Rickey S ams v. S tate, 1996 WL

66388 4 (holding misun derstan ding as to parole e ligibility not sufficien t to

render g uilty plea invo luntary.)

In view of ou r holding th at any m isunde rstanding of her pa role eligibility

would not entitle Appellant to a reduction in an agreed upon sentence, we find

the trial court did not err in refusing to allow Appellant to place the records of

other female sex offenders into evidence. Even if this has been error it was

harmless in view of the fact that Mr. Lukowski had testified to the increased

incarcerative periods experienced by sex offenders. In addition, there was no

real dispute at the hearing that sex offenders serve relatively longer

-4- incarcerative periods than do other types of offenders. Thus, the exclusion of

this evidence ad ds little if anything to the resolution of this m atter.

Accordingly, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ WILLIAM M. BARKER, JUDGE

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