IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED DECEMBER 1997 SESSION May 21, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) No. 01C01-9701-CC-00034 ) Appellee ) ) MARSHALL COUNTY V. ) ) HON. CHARLES LEE, WILBERT HELLER, ) JUDGE ) Appellant. ) (Sentencing) ) )
For the Appellant: For the Appellee:
Robert Lee Marlow John Knox Walkup Thomas A. Davidson Attorney General and Reporter 107-C West Commerce Street Lewisburg, TN 37091 Karen M. Yacuzzo Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
W. Michael McCown District Attorney General
Weakley E. Barnard Assistant District Attorney Marshall County Courthouse Lewisburg, TN 37091
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge OPINION
The appellant, Wilbert Heller, appeals as of right the sentence he received in
the Marshall County Circuit Court upon his plea of guilty to the offense of aggravated
sexual battery. The trial court sentenced appellant to nine years, six months in the
Department of Correction as a Range I offender. Appellant’s only issue on appeal is
whether he is eligible for community corrections under the special needs provision.
See Tenn. Code Ann. §40-36-106(c) (1990). We affirm the judgment of the trial court.
Appellant was indicted for a 1992 aggravated sexual battery and a 1996
attempted aggravated sexual battery of his adopted daughter. After admitting to
numerous instances of sexual contact with the victim, he pled guilty on July 3, 1996 to
the aggravated sexual battery charge. Pursuant to a plea agreement, the remaining
charge was dismissed, but there was no agreement as to his sentence. At a
subsequent sentencing hearing, the trial court sentenced appellant to serve nine
years, six months in the Department of Correction. It denied appellant’s request for
community corrections, stating that appellant was an ineligible offender.
When a defendant challenges the length, range, or manner of service of a
sentence, we must conduct a de novo review of the record. Tenn. Code Ann. §40-35-
401(d) (1990). The sentence imposed by the trial court is accompanied by a
presumption of correctness and the appealing party carries the burden of showing that
the sentence is improper. Tenn. Code Ann. §40-35-401 Sentencing Commission
Comments. The presumption, however, is conditioned upon an 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).
Because, in this case, the trial court carefully considered the mandates of the
Community Corrections Act and applicable law, we accord its judgment the
presumption of correctness.
2 Appellant concedes that he is ineligible for community corrections under the
minimum criteria set forth in Tennessee Code Annotated section 40-36-106(a). As a
sexual offender, appellant committed a crime against a person, which prohibits his
placement in such a program. Tenn. Code Ann. §40-36-106(a)(2) (1990).
Nevertheless, appellant argues that he is eligible for community corrections
under the special needs provision. Tenn. Code Ann. §40-36-106(c) (Supp. 1990).
That section provides:
Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of chronic alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the community under the provisions of this chapter.
Appellant contends that he qualifies for two reasons: (1) because the legislature has
recognized that sexual offenders are mentally ill and in need of treatment; and (2)
because expert testimony at the sentencing hearing demonstrated that a program
could be developed for his treatment.
The trial court considered these arguments at the sentencing hearing, but
determined that applicable case law interpreting the special needs subsection
prohibited appellant’s eligibility. We agree. This Court has held on numerous
occasions that in order to be eligible for community corrections sentencing under
subsection (c), the offender must be statutorily eligible for probation. See e.g., State
v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996); State v. Staten, 787 S.W.2d
934, 936 (Tenn. Crim. App. 1989); State v. Anand Franklin, No. 01C01-9603-CR-
00101 (Tenn. Crim. App. at Nashville, August 15, 1997), perm. app. denied (Tenn.
1998); State v. Ronald Wayne Strickland, No. 02C01-9608-CC-00290 (Tenn. Crim.
App. at Jackson, July 24, 1997); State v. Reginald Bonner, No. 02C01-9507-CR-
00191 (Tenn. Crim. App. at Jackson, August 28, 1996); State v. Lanny Crowe, No.
01C01-9503-CC-00064 (Tenn. Crim. App. at Nashville, July 6, 1995); State v. Scotty
G. Kilgore, 03C01-9408-CR-00278 (Tenn. Crim. App. at Nashville, June 13, 1995);
3 State v. Timothy Blackburn, No. 02C01-9111-CC-00253 (Tenn. Crim. App. at Jackson,
June 30, 1993), perm. app. denied (Tenn. 1993); State v. Robert Wilson, Alias Tiny,
No. 03C01-9209-CR-00305 (Tenn. Crim. App. at Knoxville, March 22, 1993).
Appellant is statutorily ineligible for probation because his sentence is greater than
eight years and he was convicted of aggravated sexual battery. Tenn. Code Ann.
§40-35-303(a) (Supp. 1992). As a result, appellant fails to qualify under the special
needs provision.1
We are also unpersuaded by appellant’s argument that the enactment of
statutes mandating the standardized treatment of all sex offenders modifies our
pervious holdings or otherwise influences his eligibility for community corrections. See
Tenn. Code Ann. §§39-13-701 - 709 (Supp. 1995). Those statutes establish a
comprehensive system of evaluation, identification, treatment, and continued
monitoring of all sex offenders within the criminal justice system whether they are in
the department of correction, in community corrections, on probation, or on parole.
See Tenn. Code Ann. §§39-13-702(a), 706 (Supp. 1995). One of its specific
requirements is that all sex offenders be evaluated “for risk to victims or potential
victims, identification, amenability to treatment, and behavior management” and
requires that the trial court consider that evaluation in determining the sentence.
Tenn. Code Ann. §39-13-705 (Supp. 1995).
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED DECEMBER 1997 SESSION May 21, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) No. 01C01-9701-CC-00034 ) Appellee ) ) MARSHALL COUNTY V. ) ) HON. CHARLES LEE, WILBERT HELLER, ) JUDGE ) Appellant. ) (Sentencing) ) )
For the Appellant: For the Appellee:
Robert Lee Marlow John Knox Walkup Thomas A. Davidson Attorney General and Reporter 107-C West Commerce Street Lewisburg, TN 37091 Karen M. Yacuzzo Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
W. Michael McCown District Attorney General
Weakley E. Barnard Assistant District Attorney Marshall County Courthouse Lewisburg, TN 37091
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge OPINION
The appellant, Wilbert Heller, appeals as of right the sentence he received in
the Marshall County Circuit Court upon his plea of guilty to the offense of aggravated
sexual battery. The trial court sentenced appellant to nine years, six months in the
Department of Correction as a Range I offender. Appellant’s only issue on appeal is
whether he is eligible for community corrections under the special needs provision.
See Tenn. Code Ann. §40-36-106(c) (1990). We affirm the judgment of the trial court.
Appellant was indicted for a 1992 aggravated sexual battery and a 1996
attempted aggravated sexual battery of his adopted daughter. After admitting to
numerous instances of sexual contact with the victim, he pled guilty on July 3, 1996 to
the aggravated sexual battery charge. Pursuant to a plea agreement, the remaining
charge was dismissed, but there was no agreement as to his sentence. At a
subsequent sentencing hearing, the trial court sentenced appellant to serve nine
years, six months in the Department of Correction. It denied appellant’s request for
community corrections, stating that appellant was an ineligible offender.
When a defendant challenges the length, range, or manner of service of a
sentence, we must conduct a de novo review of the record. Tenn. Code Ann. §40-35-
401(d) (1990). The sentence imposed by the trial court is accompanied by a
presumption of correctness and the appealing party carries the burden of showing that
the sentence is improper. Tenn. Code Ann. §40-35-401 Sentencing Commission
Comments. The presumption, however, is conditioned upon an 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).
Because, in this case, the trial court carefully considered the mandates of the
Community Corrections Act and applicable law, we accord its judgment the
presumption of correctness.
2 Appellant concedes that he is ineligible for community corrections under the
minimum criteria set forth in Tennessee Code Annotated section 40-36-106(a). As a
sexual offender, appellant committed a crime against a person, which prohibits his
placement in such a program. Tenn. Code Ann. §40-36-106(a)(2) (1990).
Nevertheless, appellant argues that he is eligible for community corrections
under the special needs provision. Tenn. Code Ann. §40-36-106(c) (Supp. 1990).
That section provides:
Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of chronic alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the community under the provisions of this chapter.
Appellant contends that he qualifies for two reasons: (1) because the legislature has
recognized that sexual offenders are mentally ill and in need of treatment; and (2)
because expert testimony at the sentencing hearing demonstrated that a program
could be developed for his treatment.
The trial court considered these arguments at the sentencing hearing, but
determined that applicable case law interpreting the special needs subsection
prohibited appellant’s eligibility. We agree. This Court has held on numerous
occasions that in order to be eligible for community corrections sentencing under
subsection (c), the offender must be statutorily eligible for probation. See e.g., State
v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996); State v. Staten, 787 S.W.2d
934, 936 (Tenn. Crim. App. 1989); State v. Anand Franklin, No. 01C01-9603-CR-
00101 (Tenn. Crim. App. at Nashville, August 15, 1997), perm. app. denied (Tenn.
1998); State v. Ronald Wayne Strickland, No. 02C01-9608-CC-00290 (Tenn. Crim.
App. at Jackson, July 24, 1997); State v. Reginald Bonner, No. 02C01-9507-CR-
00191 (Tenn. Crim. App. at Jackson, August 28, 1996); State v. Lanny Crowe, No.
01C01-9503-CC-00064 (Tenn. Crim. App. at Nashville, July 6, 1995); State v. Scotty
G. Kilgore, 03C01-9408-CR-00278 (Tenn. Crim. App. at Nashville, June 13, 1995);
3 State v. Timothy Blackburn, No. 02C01-9111-CC-00253 (Tenn. Crim. App. at Jackson,
June 30, 1993), perm. app. denied (Tenn. 1993); State v. Robert Wilson, Alias Tiny,
No. 03C01-9209-CR-00305 (Tenn. Crim. App. at Knoxville, March 22, 1993).
Appellant is statutorily ineligible for probation because his sentence is greater than
eight years and he was convicted of aggravated sexual battery. Tenn. Code Ann.
§40-35-303(a) (Supp. 1992). As a result, appellant fails to qualify under the special
needs provision.1
We are also unpersuaded by appellant’s argument that the enactment of
statutes mandating the standardized treatment of all sex offenders modifies our
pervious holdings or otherwise influences his eligibility for community corrections. See
Tenn. Code Ann. §§39-13-701 - 709 (Supp. 1995). Those statutes establish a
comprehensive system of evaluation, identification, treatment, and continued
monitoring of all sex offenders within the criminal justice system whether they are in
the department of correction, in community corrections, on probation, or on parole.
See Tenn. Code Ann. §§39-13-702(a), 706 (Supp. 1995). One of its specific
requirements is that all sex offenders be evaluated “for risk to victims or potential
victims, identification, amenability to treatment, and behavior management” and
requires that the trial court consider that evaluation in determining the sentence.
Tenn. Code Ann. §39-13-705 (Supp. 1995). However, nothing in the plain language
of the statute changes a sexual offender’s eligibility for community corrections under
existing law.
Our review of the record supports the trial court’s determination that appellant is
not eligible for community corrections under the minimum statutory criteria, nor under
the special needs provision of that statute. Accordingly, we affirm appellant’s
sentence of nine years, six months in the Department of Correction.
1 In view of our above conclusion, it is unnecessary for us to determine whether appellant factually satisfies the requirements for the special needs provision. Therefore, we do not address appellant’s argument that he qualifies under the special needs provision because the legislature has classified all sex offenders as “mentally ill persons.” See Tenn . Code A nn. §33- 6-302 (1 984).
4 _______________________________ WILLIAM M. BARKER, JUDGE
CONCUR:
(Not Participating) ** JOE B. JONES, JUDGE
DAVID H. WELLES, JUDGE
** Judge Jones died on May 1, 1998, following a distinguished career as a trial attorney and as a respected member of this Court since his appointment in November 1986. He will be greatly missed.