                                                                                         05/16/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              December 13, 2016 Session

            STATE OF TENNESSEE v. WESTLEY A. ALBRIGHT

                  Appeal from the Circuit Court for Dickson County
                   No. 22CC-2013-CR-206 David D. Wolfe, Judge
                       ___________________________________

                           No. M2016-01217-CCA-R3-CD
                       ___________________________________


The defendant, Westley A. Albright, pled nolo contendere to one count of soliciting a
minor in violation of Tennessee Code Annotated section 39-13-528, a Class E felony, for
which he received a one-year suspended sentence and deferred judicial diversion. As a
condition of probation, the defendant agreed to participate in therapeutic treatment for the
duration of probation or until favorably discharged. Prior to the conclusion of the one-
year suspended sentence, the defendant’s treatment provider discharged him for failure to
comply with the goals of his treatment program. Following service of a probation
warrant and a hearing, the trial court revoked the defendant’s deferred diversion and
extended his probation for six months to allow for the completion of treatment. On
appeal, the defendant argues: (1) the trial court violated his due process rights by failing
to advise him at the time he entered his nolo contendere plea that, as a condition of
probation, he would be required to confess to the solicitation of a minor; (2) the trial
court violated his due process rights by relying on a probation rule not referenced in the
revocation warrant; and (3) the trial court erred when revoking his deferred diversion
despite his completion of the objective requirements of the sex offender treatment
program. Upon review, we affirm the findings of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., J.,
joined. CAMILLE R. MCMULLEN, J., concurring in results only.

Timothy V. Potter, Dickson, Tennessee, for the appellant, Westley A. Albright.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Ray Crouch, District Attorney General; and Sarah Wojnarowski,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                             Factual and Procedural History


        On April 23, 2013, a Dickson County Grand Jury returned a two-count indictment
charging the defendant with solicitation of a minor to commit aggravated statutory rape
in violation of Tennessee Code Annotated section 39-13-528, a Class E felony, and
especially aggravated sexual exploitation of a minor in violation of Tennessee Code
Annotated section 39-17-1005, a Class C felony. These charges arose as the result of the
defendant’s text messages and email exchanges with an undercover detective from the
Dickson County Sheriff’s Office who was posing as the mother of a thirteen-year-old
girl. According to the Affidavit of Complaint, the defendant expressed a desire to engage
in sexual acts with the mother and her minor daughter and arranged a meeting at a local
ball field for that purpose. In advance of the meeting, the defendant sent a photograph of
himself to the undercover detective and requested nude photographs of the mother and
minor. When questioned by the detective, the defendant admitted to the communications
but stated he was only going to the ball field to obtain the license plate number of the
minor’s mother.

        On September 16, 2015, the defendant entered a plea of nolo contendere to the
solicitation of a minor charge in exchange for the dismissal of the aggravated sexual
exploitation of a minor charge and a suspended sentence of one year. After the
successful conclusion of the defendant’s one-year probationary period, the solicitation of
a minor charge was to be dismissed but not be expunged from his record.

        During the plea hearing, the trial judge questioned the defendant extensively
regarding his understanding of the plea, and the defendant acknowledged he understood
his right to trial, the requirements of his probation, and the ramifications of his plea. The
defendant admitted the plea was voluntary. The defendant additionally acknowledged the
terms of his probation by signing an order indicating, in part, that he would “observe any
special conditions imposed by the Court as listed below: register as a sex offender [and]
pay court costs/fines” and “abide by the Specialized Probation Conditions for Sex
Offenders as adopted by the Tennessee Department of Correction.” The defendant then
initialed each specialized condition of probation separately, including the requirements
that he “attend, participate in, and pay for treatment or counseling with an approved
treatment provider” and “continue in such treatment as instructed for the duration of
supervision unless [his] treatment provider, in consultation with [his] Officer, instructs
[him] in writing that [he has] satisfactorily completed treatment.”

                                            -2-
       The defendant subsequently selected James Barry Welch from a list of sexual
offender treatment providers approved by the State to provide the mandated treatment.
The goal of the treatment program was one-hundred percent honesty, community safety,
and no more victims. In furtherance of this goal, Mr. Welch conducted an assessment
and developed a treatment plan that included group therapy. The defendant signed off on
the objectives listed in the treatment plan, including:

      Client will admit to 100 percent elements of the offense as described by his
      victims through the official victims’ statement . . . Client will complete a
      written statement of responsibility describing all elements of his crime, to
      include grooming and cover-up actions . . . Client will complete a sexual
      autobiography which will include all deviant or illegal sexual fantasies or
      behaviors, the veracity and completeness which will be verified by
      polygraph examination or other means . . . Client will complete a sexual
      history following that.

       According to Mr. Welch, it is typical for patients to initially deny wrongdoing.
However, once treatment begins and they are faced with their treatment goals, most
patients admit to the charges against them and move forward. The defendant did not do
this. As his treatment progressed, the defendant continued to maintain his innocence.
The defendant told Mr. Welch and the group that he never intended to engage in sexual
acts with a minor. Rather, he claimed he had a stalker and searched motherless.com, a
website notorious for incest, to locate and confront the stalker. He then arranged a
meeting with this alleged stalker so he could obtain her license plate number and turn it
over to authorities. When the defendant arrived for the meeting, he discovered the person
he had been communicating with was an undercover police officer, and he was arrested.

       Mr. Welch and the group confronted the defendant regarding the weaknesses in
his story. They asked him questions like, “Why would you tell somebody that you want
to do an illegal sex act with a child if you didn’t intend to do that?” The defendant
refused to offer any further explanation. According to Mr. Welch, all evidence indicated
the defendant was lying about why he went to motherless.com and arranged the meeting,
so he asked the defendant to undergo a specific-incident polygraph examination. Mr.
Welch told the defendant that if he passed the examination, he would send a favorable
report to the defendant’s probation officer indicating there is no need for treatment.
Otherwise, he would unfavorably discharge the defendant due to his failure to comply
with the requirements of the program.

       The defendant underwent the specific-incident polygraph examination and failed.
Mr. Welch subsequently gave the defendant the opportunity to return to the group and
explain why he failed. If the defendant had admitted to lying, he could have stayed and
                                          -3-
received treatment. Instead, the defendant continued to deny he intended to engage in
sexual acts with a minor. Mr. Welch then informed the defendant in front of the group
that he was being discharged from treatment. The other group members begged the
defendant to tell the truth so he could stay. At that point, the defendant changed his story
and indicated he intended to have sex with the minor’s mother, not the minor. Mr. Welch
proceeded with discharging the defendant because engaging in sexual activity with a
consenting adult does not violate the law or require treatment.

        According to Mr. Welch, the defendant had a problem that needed to be addressed,
but the defendant was not willing to address it. For example, participation in group
therapy is a required component of treatment. While the defendant attended all scheduled
group meetings, he was hesitant to speak and would “dance around questions.”
Additionally, Mr. Welch worked with the group on cognitive distortion and issued
homework assignments on the topic. While these assignments were not mandatory, Mr.
Welch spoke to the defendant about them and informed the defendant they could be
completed without admitting guilt. The defendant still did not complete them. Mr.
Welch testified he could not treat the defendant if he would not admit he had a problem
or at least show progress towards being able to admit he had a problem. Ultimately, Mr.
Welch discharged the defendant due to his “failure to comply with his treatment
program.” Due to the defendant’s discharge from treatment, he never progressed to the
point of completing a sexual autobiography to be verified by polygraph examination or
completing a sexual history.

       After Mr. Welch discharged the defendant from treatment, he and another
therapist wrote a letter to Jessica Forbes, the defendant’s probation officer, notifying her
that the defendant had been discharged from the program due to noncompliance with
treatment goals, explaining: “Although he appeared to be in compliance with supervision
and attended all required treatment groups, he was not able to give a credible statement of
responsibility for his offense of conviction.” Ms. Forbes requested a revocation warrant
by completing a Diversion Violation Report wherein she indicated the defendant was in
violation of Probation Rule Number 12, mandating the defendant “will abide by the
Specialized Probation Conditions for Sex Offenders as adopted by the Tennessee
Department of Correction.” Ms. Forbes then referenced Special Condition Number 3,
which states:

       I will attend, participate in, and pay for treatment or counseling with an
       approved treatment provider as deemed necessary by the Board, the Court,
       or my Officer. I will continue in such treatment as instructed for the
       duration of supervision unless my treatment provider, in consultation with
       my Officer, instructs me in writing that I have satisfactorily completed
       treatment.
                                           -4-
       Thereafter, the trial court issued a revocation warrant on February 17, 2016,
indicating the defendant violated the terms of his probation when he was discharged from
sex offender treatment for noncompliance with treatment goals in violation of Probation
Rule Number 12 and Special Condition Number 3. In response, the defendant filed a
“Motion to be Relieved from Certain Conditions of Probation and to Avoid Unnecessary
VOP Allegation,” arguing he received probation as a result of entering a no contest plea
wherein he was not required to admit to the facts asserted against him. The completion
of a sex offender assessment was one of the many conditions of probation, and the
assessment required the defendant to participate in a sex offender treatment class. Mr.
Welch, the therapist conducting the class, required the defendant to admit to the facts
alleged by the State against him, but the defendant would not admit the facts because they
are false. Due to the defendant’s position that the facts asserted by the State are untrue,
he requested that the trial court relieve him of the condition of completing sex offender
treatment as a condition of his probation.

       The trial court subsequently held a hearing during which it considered both the
revocation warrant and the defendant’s motion. After hearing arguments from the
attorneys and testimony from Ms. Forbes and Mr. Welch, the trial court found the
defendant to be in violation of his probation and denied the defendant’s motion. When
doing so, the trial court noted that Probation Rule Number 10 required the defendant to
comply with any special conditions imposed by the court, including registration as a sex
offender. The trial court then stated, “The only requirement he had was to complete
successfully the sex offender registry and his probation. The sex offender registry
requires the therapy that is described in this Court. It is required that he successfully
complete it, and the Court finds he did not.” Accordingly, the trial court found the
defendant violated his conditional plea and revoked his deferred diversion, making the
conviction permanent. The trial court further extended the defendant’s probation for six
months so he could complete treatment.

        Following the hearing, the trial court entered a written order memorializing its
ruling, including these findings of fact and conclusions of law:

      2.     Following entry of his plea, the [d]efendant signed a form given to
      him by his probation officer entitled “Specialized Probation Conditions for
      Sex Offenders.” As part of said conditions, the [d]efendant acknowledged
      that he “will attend, participate in, and pay for treatment or counseling with
      an approved treatment provider as deemed necessary by the Board, the
      Court or my Officer. I will continue in such treatment as instructed for the
      duration of my supervision unless my treatment provider, in consultation

                                           -5-
      with my Officer, instructs me in writing that I have satisfactorily completed
      treatment.”

      3.     The [d]efendant selected an approved treatment program with an
      entity known as Associates for Sexual Assault Prevention (ASAP).

      4.     The [d]efendant followed all directives and participated in the
      program by attending all meetings and complying with all directions.
      However, the [d]efendant’s sexual offender treatment provider, J. Barry
      Welch, made the decision to discharge the defendant from the program
      because the determination was made by him that the [d]efendant was not
      truthful regarding his intentions for committing the crime that he was
      convicted of committing. Specifically, Mr. Welch wrote a letter to the
      [d]efendant’s probation officer which stated in part, “Although he appeared
      to be in compliance with supervision and attended all required treatment
      groups, he was not able to give a credible statement of responsibility for his
      offense of conviction.”

                                           ...

      6.     This Court believes that the [d]efendant has in fact been dishonest
      with his sexual offender treatment provider regarding his intentions for
      committing the offense of solicitation of a minor. The Court believes the
      [d]efendant has not been truthful about his motivations for committing the
      crime.

        Based on these findings, the trial court ordered the defendant is “adjudicated
GUILTY of violating his court ordered probation; therefore, the [d]efendant’s judicial
diversion in accordance with T.C.A. § 40-35-313 is hereby REVOKED and the
[d]efendant is hereby adjudicated GUILTY of the [C]lass E felony which he plead[ed] to
at the time his plea agreement was entered” and extended the defendant’s probation for
six months to allow compliance with the Specialized Probation Conditions for Sex
Offenders. This timely appeal followed.

                                         Analysis

       On appeal, the defendant argues: (1) the trial court violated his due process rights
by failing to advise him at the time he entered his nolo contendere plea that, as a
condition of his probation, he would be required to confess to the solicitation of a minor;
(2) the trial court violated his due process rights by relying on a probation rule not
referenced in the revocation warrant; and (3) the trial court erred when revoking his
                                           -6-
deferred judicial diversion despite his completion of the objective requirements of the sex
offender treatment program. In response, the State contends: (1) the defendant waived
the first issue by raising it for the first time on appeal; (2) the evidence supports probation
revocation based on the conditions included in the revocation warrant; and (3) the trial
court properly revoked the defendant’s probation and diversion status due to the
defendant’s failure to satisfactorily participate in the treatment program. Upon review,
we affirm the findings of the trial court.

I.     Notice of Admitting Guilt

       The defendant first asserts the trial court erred when revoking his deferred
diversion because the trial court failed to provide notice the confession of guilt was a
condition of his probation. In response, the State contends the defendant waived this
issue on appeal by failing to complain of lack of notice at the probation revocation
hearing. We conclude the issue is properly before this Court but lacks merit.

        “[A] defendant who is granted probation has a liberty interest that is protected by
due process of law. Also, it is fundamental to our system of justice through due process
that persons who are to suffer penal sanctions must have reasonable notice of the conduct
that is prohibited.” State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997)
(citations omitted). Defendants are presumed to be on notice that, as a condition of
probation, they are required to comply with the criminal laws this state. Id. Revocation
of probation is subject to an abuse of discretion standard of review. State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991).

       Prior to his probation revocation hearing, the defendant filed a motion to be
relieved of the requirement that he complete sex offender treatment because “confession
should not be a condition of [his] probation.” He further addressed this argument during
the probation revocation hearing. This was enough to preserve the notice issue for
appeal.

       With respect to notice of the terms of his probation, including the requirement he
participate in sex offender treatment, the defendant testified during his plea hearing that
he understood the terms of his probation. He further acknowledged the terms of his
probation by signing an order indicating, in part, that he would “observe any special
conditions imposed by the Court as listed below: register as a sex offender [and] pay
court costs/fines” and “abide by the Specialized Probation Conditions for Sex Offenders
as adopted by the Tennessee Department of Correction.” The defendant then initialed
each specialized condition of probation separately, including the requirements that he
“attend, participate in, and pay for treatment or counseling with an approved treatment
provider” and “continue in such treatment as instructed for the duration of supervision
                                             -7-
unless [his] treatment provider, in consultation with [his] Officer, instructs [him] in
writing that [he has] satisfactorily completed treatment.”

       Subsequent to the defendant’s receipt and recognition of the terms of his
probation, he entered into the mandated sexual offender treatment. Ultimately, the
defendant was unfavorably discharged by Mr. Welch due to his failure to completely
participate in treatment by providing a credible statement of responsibility for his actions.
At the revocation hearing, Mr. Welch clarified that had the defendant been able to pass a
specific-incident polygraph examination in which he denied intending to solicit sex from
a minor, he would have instead sent a favorable report to the defendant’s probation
officer indicating no further need for treatment. The defendant, however, was unable to
do so. The defendant was then given multiple opportunities to explain his actions to Mr.
Welch and the treatment group but refused. The defendant’s actions were tantamount to
failing to fully participate in the program, so he was unfavorably discharged by Mr.
Welch prior to the completion of his probation.

       In its order revoking the defendant’s probation, the trial court found the defendant
was dishonest during treatment regarding his intentions when sending messages to the
undercover agent via motherless.com. The trial court further found Mr. Welch
discharged the defendant from treatment due to this dishonesty, so he was guilty of
violating his probation. Based on our review of the record, the defendant was sufficiently
on notice that he had to attend, participate in, and pay for sexual offender treatment for
the duration of his probation or until satisfactory completion of treatment. While it
would have been helpful for the Specialized Probation Conditions for Sex Offenders to
include a more detailed description of the requisite treatment or counseling, a reasonable
person would believe this treatment or counseling requires honesty regarding the
underlying actions of the defendant. The defendant is not entitled to relief on the issue.

        We note that in State v. Edith Mae Gillman, No. M2005-01863-CCA-R3-CD,
2006 WL 2960598 (Tenn. Crim. App. Oct. 18, 2006), this Court reversed a trial court’s
order revoking probation because the appellant was not on notice that admitting guilt was
a criterion for compliance with the treatment program. Id. at *7. When doing so, we
stated, “[I]t appears that successful completion of a sexual offender program wherein
guilt must be admitted may be a condition of probation.” Id. at *6 (emphasis added).
Looking to other states for guidance, we found “where the trial court failed to include
specific probation instructions requiring admissions of guilt, reticence does not constitute
a violation of probation.” Id. We, however, stopped short of requiring the defendant to
explicitly agree on the record that he was accepting probation on the basis he would
admit to his sex crimes. Id. at *6 n.3.



                                            -8-
       The present matter is factually distinct from Edith Mae Gillman. In Edith May
Gillman, the defendant repeatedly admitted to the commission of the charged sex crime
during the course of treatment and would later recant her admissions. Here, Mr. Welch
repeatedly gave the defendant the opportunity to offer a credible explanation for his
actions, and the defendant could not do so. According to Mr. Welch, had the defendant
been able to give a credible explanation that did not involve the commission of a sex
crime, he would have favorably discharged the defendant from the program. This would
have fulfilled the terms of terms of the defendant’s probation without the admission of
guilt. The defendant, however, was unable to do this, and ultimately discharged from
treatment due to his dishonesty and failure to participate in treatment. The defendant had
ample notice of these probation requirements.

II.    Notice of Probation Violation

        The defendant next argues he did not receive proper notice of the probation
violation relied on by the trial court when revoking his deferred judicial diversion. Trial
courts follow the same procedure for terminating a defendant’s deferred diversion used
for revocation of probation. Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App.
2012). Trial courts have statutory authority to revoke probation upon a finding by a
preponderance of the evidence the defendant violated a condition of probation. Tenn.
Code Ann. § 40-35-311(e). To overturn the trial court’s revocation, the defendant must
show the trial court abused its discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.
2001). “In order to find such an abuse, there must be no substantial evidence to support
the conclusion of the trial court that a violation of the conditions of probation has
occurred.” Id. (citing Harkins, 811 S.W.2d at 82). The proof of a probation violation is
sufficient so long as it allows the trial court to make a conscientious and intelligent
judgment. Harkins, 811 S.W.2d at 82.

       Both the Tennessee Supreme Court and the United States Supreme Court have
recognized that “the full panoply of rights due a defendant” in criminal prosecutions do
not apply to probation revocation hearings. See Black v. Romano, 471 U.S. 606, 613
(1985) (stating that “the flexible, informal nature of the revocation hearing, . . . does not
require the full panoply of procedural safeguards associated with criminal trial”); Bledsoe
v.. State, 387 S.W.2d 811, 814 (1965) (stating that “the defendant [in a probation
revocation hearing] is not entitled to the same guarantees as a person who is not
convicted and is merely on trial upon an accusation of crime”). Such a defendant is
instead entitled to the “minimum requirements of due process,” including: (1) written
notice of the claimed violation(s); (2) disclosure of the evidence against him or her; (3)
the opportunity to be heard in person and to present witnesses and documentary evidence;
(4) the right to confront and cross-examine adverse witnesses (unless good cause is
shown for not allowing confrontation); (5) a neutral and detached hearing body, members
                                            -9-
of which need not be judicial officers or lawyers; and (6) a written statement by the fact-
finder regarding the evidence relied upon and the reasons for revoking probation. Gagnon
v. Scarpelli, 411 U.S. 778, 786 (1973).

        In 1996, the legislature enacted the Tennessee Standardized Treatment Program
for Sex Offenders in an effort to standardize “the evaluation, identification, treatment,
and continued monitoring of sex offenders at each stage of the criminal justice system, so
that the offenders will curtail recidivistic behavior, and so that the protection of victims
and potential victims will be enhanced.” Tenn. Code Ann. § 39-13-702. Accordingly,
offenders who are placed on probation as part of a negotiated settlement of their case are
required to submit to an evaluation for treatment. Tenn. Code Ann. § 39-13-705(b). Any
resulting plan of treatment then becomes a condition of probation. Id.

        In the present matter, as a condition of his probation, the defendant agreed to
register as a sex offender and abide by the Specialized Probation Conditions for Sex
Offenders, including attendance and participation in an approved treatment program for
the duration of probation or until being notified in writing of his satisfactory completion
of treatment. After receiving notice of the defendant’s discharge from treatment due to
his noncompliance with treatment goals, Ms. Forbes requested a revocation warrant. The
trial court then issued and served the defendant with an Affidavit Violation of Diversion
that provided the following notice of his alleged probation violations:

       Deponent further states that the aforesaid has not properly conducted
       himself but has violated the conditions of his probation in material respect
       by:

       Probation Rule No. 12: If convicted of a sex offense, I will abide by the
       Specialized Probation Conditions for Sex Offenders as adopted by the
       Board of Probation and Parole.

       Specialized Condition No. 3. which states: I will attend, participate in, and
       pay for treatment or counseling with an approved treatment provider as
       deemed necessary by the Board, the Court, or my Officer. I will continue in
       such treatment as instructed for the duration of my supervision unless my
       treatment provider, in consultation with my Officer, instructs me in writing
       that I have satisfactorily completed treatment.

       Violation: On 02/17/2016, Offender was discharged from the sex offender
       specific treatment for noncompliance with treatment goals.



                                           - 10 -
        During the subsequent revocation hearing, the State called two witnesses: Jessica
Forbes and Barry Welch. The defendant had the opportunity to cross-examine each
witness and did. The defendant also had the opportunity to call witnesses on his own
behalf but did not. The defendant had access to the discharge letter relied on by Ms.
Forbes when requesting the revocation warrant and even asked the trial court to place that
letter under seal, and the trial court granted the request. After considering the testimony
and evidence presented during the hearing, the trial court noted that Probation Rule
Number 10, mandating the defendant register as a sex offender, also required sex
offender treatment. Following the hearing, the trial court entered its written order
revoking the defendant’s deferred diversion and extending his probation for six months to
allow for completion of treatment. When doing so, the trial court did not mention
Probation Rule Number 10 and instead relied upon the defendant’s noncompliance with
the same Specialized Probation Conditions for Sex Officers requiring the defendant to
“attend, participate in, and pay for treatment or counseling” and to continue in such
treatment for the duration of his probation or until receiving written notice of satisfactory
completion referenced in the revocation warrant.

        The revocation warrant put the defendant on notice of the charges against him,
namely that his discharge from treatment for noncompliance with treatment goals
violated Probation Rule Number 12 and Special Condition Number 3. When orally
ruling, the trial court noted the defendant’s premature discharge from treatment also
violated Probation Rule Number 10, which required the defendant to register as a sex
offender. However, trial courts speak through their written orders. Williams v. City of
Burns, 465 S.W.3d 96, 119 (Tenn. 2015). In its written order revoking the defendant’s
deferred diversion and extending his probation, the trial court relied on Special Condition
Number 3. Moreover, the purpose of the written notice requirement “is to provide
forewarning to the person sought to be charged of the existence of the particular facts in
question or to enable him of acquiring a means of knowing it.” State v. James C.
Wolford, No. 03C01-9708-CR-00319, 1999 WL 76447, at *7 (Tenn. Crim. App. Feb. 18,
1999). As demonstrated by his simultaneous request to be relieved of the requirement
that he attend sex offender treatment for the duration of his probation, the defendant
undoubtedly knew in advance of his revocation hearing that his untimely discharge from
treatment was the basis for his alleged probation violation. The defendant is not entitled
to relief on this basis.

III.   Objective Requirements of Probation

       Finally, the defendant argues he complied with the objective requirements of
treatment, and the trial court abused its discretion when revoking his probation based on
the subjective decision of the treatment provider. In response, the State contends the trial
court properly exercised its discretion when revoking the defendant’s probation and
                                           - 11 -
deferred diversion after finding he had been dishonest with his treatment provider. We
agree with the State.

       As discussed supra, Tennessee Code Annotated section 39-15-705 required the
defendant to submit to an evaluation for sex offender treatment, and the subsequent plan
of treatment was to become a condition of probation. The probation order also required
the defendant to abide by the Specialized Probation Conditions for Sex Offenders, which
included attendance and participation in an approved treatment program for the duration
of probation or until being notified in writing of his satisfactory completion of the
treatment program. Relying on State v. William A. Marshall, No. M2001-02954-CCA-
R3-CD, 2002 WL 31370461 (Tenn. Crim. App. Oct. 14, 2002), the defendant claims he
complied with all objective requirements of treatment and was arbitrarily discharged due
to Mr. Welch’s subjective belief he was dishonest about the veracity of the State’s
charges against him. We disagree. Unlike the defendant in William A. Marshall, the
defendant in the present matter did not comply with the objective standards of treatment
and, therefore, did not satisfy the probation condition requiring treatment.

       In William A. Marshall, the trial court examined the meaning and effect of the
term “complete” with respect to sex offender treatment. Id. at *7. This Court found
Marshall completed treatment despite his therapist’s subjective belief he had not
internalized the dogma and may be a continued threat to the community, thus requiring
additional treatment. Id. There, the treatment program did not have a finite deadline, and
no participants had ever completed it. Id. Marshall’s progress in the program, however,
was on track with other participants. Id. Moreover, Marshall had completed a total of
ten modules of treatment, including the “preventative relapse module.” Id. This Court
acknowledged that the General Assembly has recognized “‘some sex offenders cannot or
will not respond to treatment,’” and “‘it did not intend to imply that all sex offenders can
be successful in treatment’” by enacting the Tennessee Standardized Treatment Program
for Sex Offenders. Id. at *8; citing Tenn. Code Ann. § 39-13-702(b). This Court held
that due to Marshall’s completion of all objective standards of the treatment program,
while perhaps not cured, he completed treatment and, therefore, fulfilled the condition of
his probation requiring it. Id. at *9.

       This Court has subsequently analyzed and distinguished William A. Marshall on
multiple occasions. For example, in State v. Joe Shelton Berry, No. M2004-03052-CCA-
R3-CD, 2005 WL 2438390 (Tenn. Crim. App. Sept. 27, 2005), we affirmed the trial
court’s revocation of probation after Berry, who pled no contest to rape, was discharged
from the mandated sex offender treatment class due to ongoing deceptive activity that
prevented him from being assessed for future risk and completing the program. Id. at *3.
The treatment provider testified at the revocation hearing that during group therapy
sessions, Berry would “‘almost [tell] the truth but then refuse to’” and “vaguely
                                           - 12 -
acknowledge his criminal actions but later deny them,” so he was discharged for not fully
participating and holding back the rest of the group. Id. at *1-2. Berry “refused to be
honest and try to work out his problems,” so the treatment provider refused to allow him
back into the program. Id. at *3. This Court, relying on the treatment provider’s
testimony and the trial court’s accreditation of that testimony, concluded the record
contained sufficient evidence to support the trial court’s finding that Berry did not meet
the objective standards of treatment. Id. When doing so, this Court factually
distinguished the case from William A. Marshall because, despite attending every session,
Berry’s “lack of candor, lackadaisical attitude, and inadequate participation” prevented
him from fulfilling the objective standards of treatment. Id.

        In State v. Jackie Lee Holliman, No. M2005-02139-CCA-R3-CD, 2007 WL
316406 (Tenn. Crim. App. Sept. 19, 2006), we again considered whether the trial court
properly found Holliman violated his probation where he was discharged from sex
offender treatment due to his inability to progress out of the initial stage of treatment after
one and a half years of therapy. Id. at *3-4. At the revocation hearing, the treatment
provider offered testimony regarding Holliman’s dishonesty during group therapy and
disparaging comments made about his victim, both of which prevented him from
progressing to the “victim empathy” stage of treatment. Id. This Court found that unlike
the defendant in William A. Marshall, who had completed all ten modules of treatment
before his treatment provider determined he could not be discharged because he had not
been cured, the record lacked evidence Holliman had completed any objective portion of
his treatment program. Id. at *9. Relying on Joe Shelton Berry, this Court additionally
noted “he was dismissed from the treatment program for cause, and the record supports
the trial court’s reliance upon the defendant’s blameworthy failure at treatment as a basis
for revocation.” Id. Accordingly, we held the record supported the trial court’s finding
Holliman did not comply with the court-ordered condition that he receive sex offender
treatment. Id.

       Later, in State v. Reams, this Court considered the revocation of Reams’ probation
for driving on a suspended license and being discharged from sex offender treatment due
to dishonesty with his treatment provider. Reams, 265 S.W.3d at 428. After pleading
guilty to two counts of attempted aggravated sexual battery and one count of sexual
battery, Reams received an effective sentence of eight years of probation, and the trial
court ordered sex offender treatment as a condition of probation. Id. at 425. Reams’ sex
offender treatment provider placed him in level two group therapy following his initial
assessment. Id. One of the goals of treatment required Reams to “admit to 100 percent
of the elements of the offenses described by the victim.” Id. at 429. Due to his
dishonesty regarding his contact with the victim, the treatment provider felt Reams “had
not advanced in meeting the treatment program’s goals” and demoted him to level one
therapy. Id. at 428. Reams did not progress as quickly as expected after demotion. Id.
                                            - 13 -
After giving information during a polygraph examination that conflicted with information
given during group therapy and being unable to provide an explanation for the conflict,
the treatment provider terminated Reams from the program. Id. at 429. Following
service of a revocation warrant and a hearing, the trial court revoked his probation and
ordered him to serve his sentence in confinement. Id. at 430.

        One of the issues considered by this Court on appeal was again whether the trial
court erred in revoking Reams’ probation because he had complied with all objective
standards of sex offender treatment. Id. at 432. Reams argued William A. Marshall
controlled, and the State argued Joe Shelton Berry applied. Id. at 432-33. With respect
to Reams’ compliance with the treatment program, we noted he “attended his treatment
classes; participated as far as turning in a homework assignment and confronting another
defendant, who also attended treatment; and paid for treatment, although he was behind
on payments.” Id. at 433. However, like the defendant in Joe Shelton Berry, Reams had
also been demoted because his dishonesty was holding back the group. Id. Accrediting
the testimony of the treatment provider who opined Reams could not satisfy the first step
of treatment due to his repeated dishonesty, we held the trial court did not abuse its
discretion when finding the defendant violated the terms of his probation by getting
discharged from sex offender treatment due to his own “‘blameworthy failures at
treatment.’” Id. at 432-433 (quoting Jackie Lee Holliman, 2007 WL 316406).

       In the present matter, our review of the record reveals that like the defendants in
Joe Shelton Berry, Jackie Lee Holliman, and Reams, the defendant has not fulfilled the
objective standards of treatment. At the revocation hearing, Mr. Welch testified that the
defendant’s treatment goals included admission to one-hundred percent of the elements
of the offense, completion of a written statement of responsibility describing the elements
of his crime, completion of a sexual autobiography to be verified by polygraph
examination, and completion of a sexual history. Unlike the defendant in William A.
Marshall, who completed all ten modules of treatment prior to being discharged based on
his inability to be cured, Mr. Welch discharged the defendant prior to meeting a single
goal of treatment. This discharge did not occur due to a subjective belief the defendant
could not be cured. Rather, Mr. Welch discharged the defendant because he refused to
admit to or discuss the State’s charges against him, so he could not progress in treatment.

       Like attendance and payment of treatment fees, the admission of guilt, completion
of a written statement of responsibility, completion of a sexual autobiography, and
completion of a sexual history were also objective requirements of the defendant’s
treatment. See State v. Edith Mae Gillman, No. M2005-01863-CCA-R3-CD, 2006 WL
2960598, at *7 (Tenn. Crim. App. Oct. 18, 2006) (noting that along with attendance and
participation, the admission of guilt is an objective measure of compliance with sex
offender treatment). Moreover, the trial court accredited Mr. Welch’s testimony that the
                                          - 14 -
defendant’s dishonesty impeded his ability to progress in treatment by relying on it when
revoking the defendant’s probation and deferred diversion, and this Court will not
reweigh evidence on appeal. The record contains substantial evidence to support the trial
court’s finding the defendant violated his probation when he was discharged from the
treatment program for failing to meet program goals. The defendant is not entitled to
relief on this issue.

                                    CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE




                                          - 15 -
