           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE              FILED
                            JANUARY 1999 SESSION
                                                            May 4, 1999

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,            *    C.C.A. No. 03C01-9803-CR-00111

      Appellee,                *    SULLIVAN COUNTY

VS.                            *    Hon. R. Jerry Beck, Judge

DANIEL NORRIS,                 *    (Sentencing)

      Appellant.               *




For Appellant:                      For Appellee:

Julia A. Martin                     John Knox Walkup
P.O. Box 426                        Attorney General and Reporter
Knoxville, TN 37901-0426
(on appeal)                         Elizabeth B. Marney
                                    Assistant Attorney General
Terry L. Jordan                     425 Fifth Avenue North
Assistant Public Defender           Second Floor, Cordell Hull Building
266 Blountville Bypass              Nashville, TN 37243
Blountville, TN 37617
                                    Teresa Murray-Smith
                                    Assistant District Attorney General
                                    P.O. Box 526
                                    Blountville, TN 37617




OPINION FILED:__________________


AFFIRMED


GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Daniel Norris, entered a plea of guilt to attempted rape

of a child, a Class B felony. Tenn. Code Ann. §§ 39-12-101, -107(a), & 39-13-522.

The trial court imposed a Range I sentence of eight years. The single issue for

review is whether the trial court erred by denying an alternative sentence.



              We affirm the judgment of the trial court.



              In March of 1997, the defendant engaged in consensual sexual

intercourse with the twelve-year-old victim, whom he had met at a bowling alley.

The incident occurred at the victim's residence while her mother was not at home.

Although initially charged with rape of a child, the state reduced the charge against

the defendant to attempted rape of a child.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption 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); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the


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nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's request for probation

are the circumstances of the offense, the defendant's criminal record, social history,

and present condition, and the deterrent effect upon and best interest of the

defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigated or standard offenders convicted of Class C, D, or E felonies

are, of course, presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. §

40-35-102(6). With certain statutory exceptions, none of which apply here,

probation must be automatically considered by the trial court if the sentence

imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). The ultimate

burden of establishing suitability for probation, however, is still upon the defendant.

Tenn. Code Ann. § 40-35-303(b).



              At the sentencing hearing, the defendant's mother Shirley Ann Boyd,

testified that he could reside with her if he were granted an alternative sentence.

While acknowledging that the defendant had failed to comply with conditions of

probation for an earlier sentence, she promised to try to help the defendant attend

meetings and otherwise conform to any conditions of release. Ms. Boyd testified

that the defendant might be able to obtain employment with his former employer,

Piccadilly Restaurant.




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             The defendant, twenty-one years old at the time of sentencing, has a

history of misdemeanor convictions, including assault. He has a lengthy juvenile

record. At the sentencing hearing, he claimed that he was unaware that the victim

was under thirteen years of age when he met her. He maintained that he was

willing to undergo treatment if granted an alternative sentence and that he believed

he could obtain employment with his former employer. He stated that eight months

of incarceration had taught him to "think more" before he acted. The defendant

admitted that he lost his job at Piccadilly because he had become involved in an

argument in the shopping mall. In consequence, he was barred from the premises.

He testified that he drank five or six beers per day and on occasion used marijuana.

Although he participated briefly in a substance abuse treatment program as a

juvenile, the defendant has not done so since reaching adulthood. He has several

prior alcohol-related convictions and acknowledged having "a tiny bit" of a

substance abuse problem.



             Henry Bobletts testified that he was with the defendant and the victim

on the evening of the offense. He stated that, while the victim claimed to be

eighteen years old, she appeared to be as much as twenty.



             The trial court ordered a risk assessment to evaluate the defendant's

propensity to reoffend. During the interview with Counseling and Consultation

Services, Inc., the defendant admitted to having exposed his genitals to a stranger

in the past. The reporter concluded that the defendant's risk to reoffend was within

the low to moderate range. The defendant received a low score in his ability to

recognize his problem and in his ability to understand in what manner he had

harmed the victim. The reporter recommended as follows:

             1. [The defendant] is considered to be a low-moderated
             risk to re-offend. Without sufficient interventions which

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             limit his access to sexually act out, it is very likely that
             [he] will continue to sexually act out.

             2. [The defendant] presently is a fair candidate for
             treatment at this time. His primary sexually offensive
             behavior is child molestation[,] which Specialized Sex
             Offender Treatment has demonstrated success. His
             other sexual offending behaviors, exposing [himself], is
             more difficult to treat.

             3. The level of therapeutic intensity needed to
             adequately address [the defendant's] sexual offending is
             considered low-moderate. Thus, it is recommended that
             he be treated in an out-patient treatment program which
             specializes in sexual offending.

             4. [The defendant] will require intensive supervision in
             the community. This would include Polygraph
             Examinations and high level of accountability to
             Probation, Parole and his Treatment Team. He would
             need to engage a significant individual (family/ally) in his
             treatment process.



             According to the pre-sentence report, the defendant, who completed

the ninth grade, began using alcohol at the age of fourteen. He was considered an

alcohol abuser at the time of his incarceration. He also admitted to past use of

speed and marijuana. The defendant has worked for two to six months at a time in

the food service industry. He has a lengthy adult criminal record, including

misdemeanor convictions for public intoxication, driving on a revoked license, driving

on a suspended license, theft up to $500, possession and distribution of intoxicating

liquors by a person under twenty-one, assault, disorderly conduct, and a number of

traffic offenses. As a juvenile, the defendant appeared in juvenile court for truancy,

larceny, breaking and entering, destruction of public property, contempt of court,

trespassing, and assault. His criminal history as both a juvenile and an adult

suggests an unwillingness to adhere to the terms of probation. In 1992, the juvenile

court placed him in a mental health and substance abuse treatment program. After

two months of disruptive behavior, including inhaling gasoline, threatening the staff



                                            5
and other residents with violence, and five reported sexual encounters with resident

females, the defendant was discharged from the program.



              At the conclusion of the sentencing hearing, the trial court concluded

that the defendant was a low to moderate risk to reoffend. While determining that

the defendant, although youthful, had a "long history of petty offenses," the trial

court also noted the defendant's poor academic performance, his history of alcohol

abuse, and his use of illegal drugs. His social history was characterized as "not

good" and his work history as "sporadic." The trial court ruled that the defendant's

juvenile record, described as "extremely negative," indicated his inability to "act

properly." While observing that the victim's mother did not oppose an alternative

sentence, the trial court denied probation and refused to consider community

corrections, characterizing the offense as "violent."



              The defendant contends that the trial court failed to make adequate

findings and conclusions, failed to properly consider the defendant's potential for

rehabilitation, and failed to consider treatment within the community under Tenn.

Code Ann. § 40-36-106(c). The 1989 Act provides that the record of the sentencing

hearing "shall include specific findings of fact upon which application of the

sentencing principles was based." Tenn. Code Ann. § 40-35-209(c). The trial court

did not state a statutory basis for denial of probation. Nonetheless, the factual

determinations of the trial court and other portions of the record are adequate to

support the denial of probation.



              While an eight-year sentence does not disqualify the defendant from

probation, he is not presumed to be a favorable candidate for alternative sentencing

because he was convicted of a Class B felony. Tenn. Code Ann. § 40-35-102(6).


                                           6
Confinement is often necessary to protect the public from the conduct of the

defendant, to avoid depreciating the seriousness of an offense or to provide a

deterrent to others likely to commit a similar offense, or because measures less

restrictive have recently or frequently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1). The record here supports the trial court's

conclusion that the defendant was not amenable to rehabilitation due to his prior

criminal convictions, a history of probation violations, and an extensive juvenile

record. His social, employment and work history are poor.



              A lack of candor may also militate against a grant of probation. State

v. Bunch, 646 S.W.2d 158 (Tenn. 1983). Furthermore, acceptance of responsibility

is often an important first step towards a rehabilitation. The mental health

evaluation indicated that the defendant had neither taken full responsibility for his

actions nor could he comprehend how his actions had affected the victim. In

addition, the defendant, who admitted to only "a tiny bit" of a substance abuse

problem, has not yet acknowledged the full extent of his alcohol abuse. While he

maintained that he had not known the actual age of the victim, he stipulated

otherwise at the plea submission hearing. Finally, the defendant has not

demonstrated any basis upon which to conclude that he is a favorable candidate for

probation.



              Next, the defendant contends that the trial court erred by refusing to

consider a sentence within the community corrections program. The purpose of the

Community Corrections Act of 1985 was to provide an alternative means of

punishment for "selected, nonviolent felony offenders in front-end community based

alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The Community

Corrections sentence provides a desired degree of flexibility that may be both


                                           7
beneficial to the defendant yet serve legitimate societal aims. State v. Griffith, 787

S.W.2d 340, 342 (Tenn. 1990). Even in cases where the defendant meets the

minimum requirements of the Community Corrections Act of 1985, the defendant is

not necessarily entitled to be sentenced under the Act as a matter of law or right.

State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders

are eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

              (3) Persons who are convicted of nonviolent felony
              offenses;

              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a) (emphasis added). Subparts (a)(2) and (3) above

disqualify the defendant because attempted rape of a child is classified as an

“offense against the person.” See Tenn. Code Ann. § 39-13-505; see State v.

Boston, 938 S.W.2d 435, 438 n.5 (Tenn. Crim. App. 1996); State v. Clessie T. Jaco,

No. 01C01-9802-CC-00091, slip op. at 9 (Tenn. Crim. App., at Nashville, Dec. 21,

1998), app. for perm. to appeal filed (Feb. 18, 1999); State v. Leonard Eugene

Grant, No. 03C01-9212-CR-00441, slip op. at 4 (Tenn. Crim. App., at Knoxville, July

22, 1993). Because the offense involves sexual penetration, the defendant's crime

is considered "violent." See Tenn. Code Ann. § 40-36-102(12). The defendant is

                                           8
possibly eligible, however, under the "special needs" provision of the Act, which

allows some individuals who commit violent crimes or crimes against the person to

be placed on Community Corrections if they have special needs arising from mental

health problems for which treatment is available. Tenn. Code Ann. § 40-36-106(c).

The defendant, who would require intensive supervision, was described as a "fair"

candidate for out-patient treatment program specializing in sexual offending. Yet he

has a "significant" alcohol and drug abuse problem, as evidenced by mental

evaluation and the number of prior convictions and charges which were alcohol

related. The seriousness of the criminal charges continues to escalate. The

probation violations demonstrate his inability to abide by conditions of release to the

community. Based on these factors, we conclude that the defendant is not a

favorable candidate for community-based treatment under the special needs

provision. In our view, incarceration is warranted.



              Accordingly, the judgment is affirmed.



                                   ______________________________________
                                   Gary R. Wade, Presiding Judge

CONCUR:


_______________________________
James Curwood W itt, Jr., Judge


_______________________________
Norma McGee Ogle, Judge




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