         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs April 19, 2006

                STATE OF TENNESSEE v. DAVID EARL NIXON

                 Direct Appeal from the Criminal Court for Sumner County
                          No. 252-2004    Jane Wheatcraft, Judge



                  No. M2005-01887-CCA-R3-CD - Filed September 26, 2006


The defendant, David Earl Nixon, pled guilty to two counts of especially aggravated sexual
exploitation of a minor (Class B felony) and one count each of marijuana possession and possession
of drug paraphernalia (Class A misdemeanors). He was sentenced to consecutive ten-year sentences
for the two felony convictions, with the first ten years to be served in confinement and the second
ten years on supervised probation. He received concurrent sentences of eleven months and twenty-
nine days in confinement for the misdemeanor convictions. The defendant contends on appeal that
the trial court erred in requiring him to serve his sentence in confinement rather than on probation
and argues that the sentence of confinement constitutes an excessive sentence. We note that the laws
concerning sentencing changed on June 7, 2005, and that this defendant did not execute any written
waiver to be allowed to be sentenced under the new law. A ten-year sentence on probation under
the old law is unauthorized, making the second ten-year sentence on supervised probation illegal.
Because the trial judge is required to consider the aggregate sentence imposed, we reverse the
sentences imposed and remand for new sentencing. We found no other reversible error.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and
                                       Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and DAVID H. WELLES, J., joined.

B. F. “Jack” Lowery and G. Jeff Cherry, Lebanon, Tennessee, for the appellant, David Earl Nixon.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and Ronald Blanton, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                OPINION

                                      Facts and Procedural History

       During the guilty plea colloquy, the State presented the following facts to support the
defendant’s guilty pleas:
       Had this matter proceeded to trial, the facts would have shown that in December and
       January -- December of 2003 and January 2004, Mr. Nixon, using a webcam in
       Sumner County, Tennessee, exposed the genitalia of his three-year-old daughter over
       the internet for viewing by others. On count 5, upon executing a consent to search
       of his property, he admitted, told authorities where they could find marijuana in
       which they were able to find the marijuana and paraphernalia.

        No testimony was given during the sentencing hearing. The parties instead relied on the
presentence report, the Centerstone report,1 the victim impact statement prepared by the mother of
the victim, the original pictures that are the subject of the underlying offense, the defendant’s
statement of allocution, and counsel argument to present their respective cases for sentencing.
During the sentencing hearing, counsel for the defendant argued in favor of an alternative sentence
to confinement because he claimed the defendant was guilty of committing an impulsive act which
was out of character. Counsel tried to paint a picture of the defendant as an upstanding citizen,
dedicated fireman, and good father who was a low risk to commit this type of act in the future.
Defense counsel argued in favor of a supervised probation program for the defendant rather than a
sentence of confinement. Defense counsel characterized the defendant’s behavior as an irresponsible
act rather than sustained sexually deviant behavior.

        Next, the Assistant District Attorney General argued that the defendant had established a
record of lying to protect himself since the charges were brought against him. He pointed out two
instances, in the presentence report and the Centerstone report, of the defendant telling different
stories regarding his use of illegal drugs, and he argued that the defendant was not trustworthy
because of his behavior. He also pointed to a portion of the Centerstone report in which the
defendant discussed that the crimes he committed were “no big deal” because they were
“nonsexually orientated [sic]” despite the fact that he held his then three-year-old daughter naked
in front of a webcam. The Assistant District Attorney General further stated that though the
defendant claimed his actions were not sexual, there was, in fact, a person on the other end of his
internet connection who was “doing stuff for him.” He further argued that the defendant breached
his duty to protect his daughter on separate occasions because, by his own admission, he repeated
his act multiple times. He then argued that, because the events occurred on separate occasions, the
court could impose consecutive sentencing. The Assistant District Attorney General requested that
the court impose a consecutive sentence to be served in the Tennessee Department of Correction.



        1
        The Centerstone report is a psychosexual evaluation for the defendant that contains an evaluation and
recommendation for treatment.

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        Next, the defendant read his statement of allocution in which he stated that, prior to the
underlying charges, he: (1) had never been arrested, (2) had a good job, and (3) took care of his
children. He acknowledged that his actions were “incredibly stupid” but claimed that the acts were
impulsive. He pled guilty because he was, in fact, guilty of the charged conduct. He said that his
“stupid act” cost him his relationship with his children, his job, and his reputation and that he has
embarrassed his family by becoming a convicted felon. He said that he was sorry for his actions and
for involving his child in those actions. He said he thinks about his terrible mistake daily, and he
asked the court to grant him probation so he could rebuild his life and support his children.

         After hearing the statements of the parties and reviewing the submitted exhibits, the trial
court stated that it was not of the opinion that the defendant’s actions were impulsive. The court
specifically stated that because the defendant admitted he engaged in the illegal behavior on a
number of occasions, his actions were deliberate rather than impulsive and amounted to an abuse of
his position of trust with his child which has, in turn, caused her great psychological damage. The
court also stated it believed the defendant minimized the severity of his actions and was dishonest
about his interest in sexual deviance. The court said it was concerned about the defendant’s
justification of his actions and his refusal to acknowledge his inappropriate sexual behavior. It
specifically referenced the Centerstone report in stating its belief that the defendant was a risk to re-
offend because of his lack of insight as to the extent of his problem.

       The court ordered the defendant to serve two consecutive ten-year sentences on the sexual
offenses, the first to be served in confinement and the second to be served on intensive probation.
The court also sentenced the defendant to terms of eleven months and twenty-nine days for each
misdemeanor conviction, to run concurrently with the first term of confinement. The court
determined that the range of sentence for the Class B felonies was eight to twelve years, with the
presumptive minimum sentence at eight years. However, the court enhanced the sentence to ten
years because of the defendant’s abuse of his position of trust and the damage done to the child.
Further, the court ordered the defendant to: register as a sex offender; undergo sex offender specific
treatment as well as regular polygraph tests; and pay child support, cost of counseling for the victim,
and court fines and costs. The court specifically stated that this was an egregious crime and that the
aggregate length of the sentence relates to the severity of the offenses. The court stated that the
sentence was necessary to send a message and to serve as a deterrent to others.

                                               Analysis

        When reviewing sentencing issues raised by a defendant on appeal pursuant to Tennessee
Code Annotated section 40-35-401(d), the appellate court shall conduct a de novo review of the
sentence with a presumption of correctness for the determinations of the trial court. The
presumption of correctness 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 has the burden of proving that the sentence is
improper. When considering whether a defendant should be incarcerated, the trial court should
consider, inter alia, whether confinement is necessary to avoid depreciating the seriousness of the

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offense. T.C.A. 40-35-103(1)(B); State v. Ashby, 823 S.W.2d at 169. Under the 1989 Sentencing
Act, sentences which involve confinement are to be based on the following considerations contained
in Tennessee Code Annotated § 40-35-103(1):
        (A)    Confinement in necessary to protect society by restraining a defendant who
               has a long history of criminal conduct;
        (B)    Confinement is necessary 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 restrictive than confinement have frequently or recently been
               applied unsuccessfully to the defendant.
See also State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps, 920
S.W.2d 267, 270 (Tenn. Crim. App. 1995). Here, the trial court properly considered the provision
of Tennessee Code Annotated section 40-35-103(1)(B) in determining that the defendant’s sentence
should be served in confinement. The trial court specifically addressed this consideration in
determining that the defendant consistently depreciated the seriousness of his offenses requiring
confinement under the statute. The trial court pointed out that the defendant minimized the severity
of his actions and, further, that he refused to acknowledge the seriousness of his inappropriate
behavior. Further, the trial court properly considered and admitted the portion of the Centerstone
report which stated that the defendant’s potential for rehabilitation was poor based on his
unwillingness to acknowledge that he had a sexual problem.

        The defendant contends that the trial court erred in the implementation of an excessive
sentence and in not granting full probation. The defendant first contends that the trial court was
required to follow the 2005 amendments to the Tennessee Criminal Sentencing Reform Act of 1989
because the sentencing hearing occurred July 8, 2005. However, upon review of the compiler’s
notes to Tennessee Code Annotated section 40-35-102 (2005), we conclude that sentencing under
prior law was proper. The notes to Tennessee Code Annotated section 40-35-102 state:
        Acts 2005, ch. 353, § 18 provided that the act shall apply to sentencing for criminal
        offenses committed on or after June 7, 2005. Offenses committed prior to June 7,
        2005, shall be governed by prior law, which shall apply in all respects. However, for
        defendants who are sentenced after June 7, 2005, for offenses committed on or after
        July 1, 1982, the defendant may elect to be sentenced under the provisions of the act
        by executing a waiver of such defendant’s ex post facto protections. Upon executing
        such a waiver, all provisions of the act shall apply to the defendant.
The sentencing scheme reviewed by the trial court on the record, without objection by counsel or
execution of a waiver, was proper under the law.

        Next, the defendant contends that the trial court’s reliance on the victim impact statement
was improper and violated his “statutory and constitutionally protected right of allocution.” This
argument is without merit. The victim impact statement and all other relevant evidence are properly
considered by the sentencing court when determining the length and manner of service of a sentence.
The trial court properly considered the Centerstone report which made clear statements about the
defendant’s depreciation of the seriousness of the offense, his lack of rehabilitative potential, and


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his likelihood to commit an offense in the future. Further, the statement had no impact on the
defendant’s right of allocution because the defendant exercised his right to read an allocution
statement to the court.

        The defendant also argues that the court did not consider his statement of allocution and
contends that there are no comments on the record regarding his statement. However, our review
of the record reveals that the trial court considered the defendant’s statement of allocution and
specifically cited from it at the sentencing hearing. The trial court refuted the assertions made in the
defendant’s statement of allocution that his actions were impulsive rather than indicative of his
character. Further, the trial court began the sentencing decree by citing the mitigating factors in
favor of alternative sentencing, namely his employment history and lack of a criminal record, as
stated by the defendant at the sentencing hearing. Therefore, this argument is also without merit.

        Next, the defendant argues that the ten-year sentences on each felony count are excessive.
He argues that the minimum sentence in the range of eight years is a more appropriate sentence. The
defendant argues that no enhancement factors exist to raise his sentence from the presumptive
minimum to the ten-year sentences as applied by the trial court. However, upon a review of the
record, we conclude that two enhancement factors exist to support the sentence imposed by the trial
court. The trial court made specific findings that two enhancement factors existed to raise the
sentence from the presumptive minimum sentence of eight years upward to ten years. The trial court
stated that the defendant’s abuse of his position of trust and the extent of the damage to the victim
justified an enhancement of his sentence under Tennessee Code Annotated section 40-35-114.

        The defendant further argues that he should be allowed to serve his entire sentence on
probation. Here, the defendant has not carried the burden of showing that the imposed sentence is
improper. A defendant is eligible for probation if the sentence received by the defendant is eight
years or less, subject to some statutory exclusions. T.C.A. § 40-35-303(a)(2003). Although
probation must be considered in sentencing, the defendant is not automatically entitled to probation
as a matter of law. T.C.A. § 40-35-303(b), Sentencing Commission Comments; State v. Fletcher,
805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). An especially mitigated or standard offender
convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative
sentencing in the absence of evidence to the contrary. T.C.A. § 40-35-102(6). However, although
a defendant may be presumed to be a favorable candidate for alternative sentencing, the defendant
has the burden of establishing suitability for total probation. T.C.A. § 40-35-303(b); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). A defendant seeking full probation bears the burden
on appeal of showing the sentence imposed is improper and that full probation will be in the best
interest of the defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App.
1997).

        The trial court announced that confinement was necessary to deter this type of behavior and
to punish the defendant for his actions. The trial court also announced that its sentencing decision
was based, in part, upon the defendant’s lack of candor. We have previously held that the
untruthfulness of a defendant can be the basis for a denial of probation. State v. Jenkins, 733 S.W.2d


                                                  -5-
528, 534-36 (Tenn. Crim. App. 1987); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). This court has also upheld the denial of judicial diversion on the basis of untruthfulness.
Dowdy, 894 S.W.2d at 305; see also State v. Anderson, 857 S.W.2d 571, 573 (Tenn. Crim. App.
1992). In the present case, the trial court pointed out the defendant’s dishonesty with the court
regarding his behavior and his interest in sexual deviance, and the court considered that dishonesty
when presenting the sentence. We conclude that the defendant’s credibility and willingness to accept
responsibility for the offenses are properly considered in determining his potential for rehabilitation
and are relevant in determining the appropriate sentence. The trial court observed the defendant’s
statements, attitude, and demeanor and determined that he was dishonest, was in denial, and was
likely to re-offend. This is sufficient to give the trial court the benefit of discretion. See State v.
Anderson, 857 S.W.2d at 573-74. We conclude that there was adequate evidence to support the
sentences as imposed by the trial court.

        Because the offenses committed by the defendant occurred prior to the enactment of the 2005
amendment, we again look to the prior law for sentencing. The defendant contends that the ten-year
sentence is excessive. We do not agree. However, we must remand to the trial court on the issue of
sentencing because the defendant was ineligible for probation under the prior law. Prior to the 2005
amendment, a defendant was eligible for probation only if the imposed sentence was eight years or
less. T.C.A. § 40-35-303(a) (2003). After receiving consecutive ten-year sentences, the defendant
should have been sentenced to confinement for both offenses. He was not statutorily eligible for
probation because of the length of his imposed sentence. The defendant could have elected to be
sentenced under the 2005 amendment by executing a waiver of his ex post facto protections. This
waiver would have allowed him to serve the second sentence on probation rather than in
confinement. Our review of the record reveals no such waiver. Therefore, we conclude that the
defendant could only be sentenced to confinement for service of both sentences. We reverse the
judgments of the trial court and remand for resentencing on both sentences consistent with this
opinion.

                                             Conclusion

        Based upon the foregoing and the record as a whole, we reverse the judgments of the trial
court and remand this case for further proceedings consistent with this opinion.




                                                       ____________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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