         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs October 30, 2001

                  STATE OF TENNESSEE v. JOSEPH S. HAYES

                     Appeal from the Criminal Court for Sullivan County
                     No. S42789, S42790, S42791   R. Jerry Beck, Judge



                                 No. E2001-00868-CCA-R3-CD
                                       January 7, 2002


The defendant, Joseph S. Hayes, appeals the Sullivan County Criminal Court’s denial of alternative
sentencing in the defendant’s three Class B misdemeanor convictions of assault. Finding no
reversible error, we affirm.

               Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JOHN EVERETT WILLIAMS, JJ., joined.

Thomas C. Jessee, Johnson City, Tennessee, and Thomas Dossett, Kingsport, Tennessee, for the
Appellant, Joseph S. Hayes.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and James Goodwin, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                The defendant, a medical physician, was indicted on five counts of sexual battery and
one count of assault. These counts alleged 1998 offenses involving three female patients. The
defendant made a plea agreement with the state, which provided that the defendant would enter
“best interest,” nolo contendere pleas to three counts of Class B misdemeanor assault, one per
victim. See Tenn. Code Ann. § 39-13-101(a)(3) (1997) (Class B misdemeanor committed by one
who “[i]ntentionally or knowingly causes physical contact with another and a reasonable person
would regard the contact as extremely offensive or provocative”). According to the agreement
terms, the defendant would receive concurrent sentences of six months in each case, but the manner
of service of the effective six months sentence would be determined by the trial court. After a
sentencing hearing, the trial court ordered the defendant to serve the sentence by confinement in the
county jail. The defendant now appeals this ruling and posits that he should have been awarded
probation or some other alternative to confinement.
               The sentencing hearing consisted of the arguments of counsel and submission of the
presentence investigative report and a diagnostic report from Behavioral Medicine Institute of
Atlanta (BMI). The presentence report revealed that the defendant was 55 years of age at the time
of sentencing, married, and, at the time the offenses were committed, employed as a licensed
physician by Med-Choice in Kingsport. The victims of these offenses complained that during 1998
medical examinations performed on them by the defendant at Med-Choice, he inappropriately
touched their breasts, and in some cases, their pubic areas.

               The report stated that the defendant formerly served in the United States Navy, where
as a family physician he attained the rank of Lieutenant Commander. He received an honorable
discharge in 1977.

                In 1991, the defendant’s medical license was revoked following the Tennessee
Department of Health’s summary suspension for “immoral or unprofessional conduct; distribution
of intoxicating liquors or drugs for other than lawful purposes.” The defendant’s license was
reinstated in 1993. The 1991 license revocation may have been based upon the events that led to his
1992 convictions of casual exchange of a controlled substance, delivery of a legend drug, and felony
possession with intent to deliver controlled substances.

               In addition to these 1992 convictions, the defendant was also convicted in 1991 of
assault and in 1992 of resisting arrest and assault. The defendant reported to the presentence
investigator that in 1979 he began using marijuana and later began “self-prescribing” Halcion.
Because of the drug abuse, the defendant completed a regimen of drug rehabilitation.

               A report of a psychological counselor at Child and Adult Clinical Associates (CAC)
in Knoxville was contained within the presentence report. According to CAC, the defendant later
got “into trouble due to a history of several extramarital affairs, some of which constituted
professional sexual misconduct (PSM) because they occurred with patients, nurses, or other staff.”
 The Tennessee Physicians Health Program referred the defendant to BMI in August, 1999.
Following “successful treatment” in Atlanta, the defendant was referred in November 1999 to CAC
for “maintenance treatment.” According to the CAC report, he has fulfilled expectations and has
begun practicing medicine part-time in South Carolina, operating under stringent rules of supervision
concerning his treatment of female patients.

                 The BMI report indicated that the defendant’s “professional sexual misconduct”
could be considered an impulse control disorder. The defendant also evinced depression, but his
drug and alcohol abuse was in remission. During his stay at BMI, the defendant initially “failed to
appreciate the potential consequences of his behavior on the women,” but as treatment progressed,
he became more appreciative and became “motivated for treatment and began reading about
professional sexual misconduct.” He received treatment focusing on disrupting the “factors
antecedent to his inappropriate behavior.” He agreed to the imposition of “checks and balances . .
. to ensure the absence of professional sexual misconduct,” including the use of staff surveillance
techniques, patient satisfaction surveys, and regular polygraph examinations of the defendant. BMI
referred the defendant to CAC for follow-up treatment.

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                In reviewing the factors relevant to determining the manner of service of the
defendant’s six-month sentence, the trial judge first mentioned the two prior felony convictions and
the misdemeanor convictions. The judge acknowledged that the drug-related offenses appear to have
emanated from a drug problem that has been essentially resolved; however, all in all, the court found
a prior history of criminal conduct.

                On the other hand, the court found that the defendant had demonstrated some “very
good conduct as a young man.” He maintained an impressive grade point average in college and
medical school and served honorably in the military. The defendant had “attempted self-
rehabilitation.”

               In short, the court found the biographical factors to be a “mixed bag,” but it accorded
“great weight” to the prior felony record. The court also gave “some weight to the Disciplinary
Board’s prior actions” in finding the defendant guilty of inappropriate professional conduct. The
court considered the victim impact statements and expressed concern that the defendant’s conduct
had caused one of the victims to experience “utter humiliation” and another to feel “violated and
degraded.” The court found that the impact on at least two victims was substantial and that this fact
was relevant to the nature and circumstances of the offenses involving those victims. The court
concluded that the “negative” factors outweighed the factors favoring any form of alternative
sentence and ordered the defendant to serve his effective sentence in confinement.

               On appeal, the defendant points to his “successful” voluntary psychological
counseling, his age and health problems, his prior military service, and the remoteness of his prior
criminal convictions as bases for “granting probation.” The state maintains that the trial court had
more than adequate bases for its order of confinement, especially the prior criminal record and the
recurrent nature of the defendant’s professional sexual misconduct.

                 Tennessee Code Annotated section 40-35-302 provides in part that the trial court shall
impose a specific misdemeanor sentence consistent with the purposes and principles of the 1989
Criminal Sentencing Reform Act. Tenn. Code Ann. § 40-35-302(b) (1997). In misdemeanor
sentencing, a separate sentencing hearing is not mandatory, but the court is required to provide the
defendant with a reasonable opportunity to be heard as to the length and manner of service of the
sentence. Tenn. Code Ann. § 40-35-302(a) (1997). Misdemeanor sentencing is designed to provide
the trial court with a great deal of flexibility. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998).
One convicted of a misdemeanor, unlike one convicted of a felony, is not entitled to a presumption
of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). This court
has also held that the statutory presumption of favorable candidacy for alternative sentencing does
not apply to a defendant who has been convicted of a misdemeanor. State v. Williams, 914 S.W.2d
940, 949 (Tenn. Crim. App. 1995); see Troutman, 979 S.W.2d at 273 (citing Williams with
approval). But see State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996); State v. Boyd,
925 S.W.2d 237, 245 (Tenn. Crim. App. 1995); State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim.
App. 1992). Our law does not require that a trial judge make specific findings of fact in
misdemeanor sentencing when determining what portion of a sentence the defendant will serve in
confinement. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). The trial court is empowered

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to place the misdemeanant on probation immediately or after a period of confinement. Tenn. Code
Ann. § 40-35-302(e) (1997). The burden for showing that the court should probate the sentence rests
with the defendant. Tenn. Code Ann. § 40-35-303(b) (1997).

              The defendant, as the appellant in this court, has the burden of establishing that the
sentence was erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts. (1997);
Williams, 914 S.W.2d at 949.

                 We conclude that the defendant has failed to carry the burden of establishing that the
trial court erred in imposing a sentence of confinement. The trial court considered relevant factors
in determining whether a sentencing alternative to confinement should have been utilized, including
the defendant’s prior criminal record, his potential for rehabilitation, his background and social
history, and his present physical and mental condition, and whether probation is in the best interests
of the defendant and the public. See, e.g., State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). The record
fully supports the court’s factual findings, as well as its conclusions resulting from those findings.

                We find no basis for disturbing the lower court’s decision, and accordingly, we affirm
the denial of alternative sentencing.1



                                                                    ___________________________________
                                                                    JAMES CURWOOD WITT, JR., JUDGE




         1
           In passing, and in an effort to forestall what may have resulted in further litigation in this case, we note that
the conviction judgments do not express a percentage of the effective sentence to be served “in actua l confinem ent”
before the defendant becomes eligible for “work release, furlough, trusty status and related rehabilitative program s.”
See Ten n. Co de A nn. § 40-35-302 (d) (1 997 ). The statute contains a d efault provision that ap plies in this situation: “If
no percentage is expressed in the judgment, the percentage shall be considered zero percent (0%).” Id. Howev er,
despite the absence of a percentage expressed in the judgment, “[w]hen this court has been faced with a transcript of
the sentencing hearing clearly indicating the trial court’s intention that the defendant’s percentage is not zero percent,
. . . we have deferred to the trial court’s express pronouncement as reflected in the transcript.” State v. Russell, 10
S.W.3d 270, 279 (Tenn. Crim. App. 1999) (emphasis in original). In the present case, perhaps the trial judge intended
the default pro vision to apply or otherwise intended the percentage to be zero. Nevertheless, we have reviewed the trial
judge’s findings and comments in the transcript of the sentencing hearing. We discern no clear indication that he
intended anything other than a zero percentage. Accordingly, in our view, the statutory default controls, and the
app licable percentag e of service is zero.

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