         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs December 5, 2000

                   STATE OF TENNESSEE v. TYRONE PIERCE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 96-02967    Bernie Weinman, Judge



                    No. W2000-00571-CCA-R3-CD - Filed March 27, 2001


The defendant pled guilty to criminal attempt to commit aggravated sexual battery, a Class C felony.
Pursuant to a plea agreement he agreed to a three-year sentence as a Range I Standard Offender, with
the manner of service to be determined after a hearing by the trial court. The trial court sentenced
the defendant to serve 270 days in the workhouse on weekends (“day for day”) from 7:00 p.m. on
Fridays to 7:00 p.m. on Sundays and five years probation with a 10:00 p.m. curfew on weekdays.
The defendant contends he should have received full probation or some other less restrictive form
of alternative sentencing. We affirm the trial court’s denial of full probation but modify the time of
service in the workhouse on weekends to 104 days.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT
W. WEDEMEYER , JJ., joined.

Phyllis Aluko and W. Mark Ward, Assistant Public Defenders, for the appellant, Tyrone Pierce.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General;
William L. Gibbons, District Attorney General, and John W. Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION


       On March 14, 1996, the defendant, Tyrone Pierce, was indicted in Shelby County for
aggravated sexual battery of a child less than thirteen years of age, allegedly committed between May
1, 1993 and September 30, 1993. The defendant was in the Navy and received no notice of the
indictment until his arrest on November 23, 1998.
        On September 30, 1999, the defendant waived his right to a trial by jury, and entered into a
negotiated plea agreement, by which he pled guilty to the lesser offense of criminal attempt to
commit aggravated sexual battery, a Class C felony, with an agreed upon sentence of three years as
a Range I Standard Offender. The manner of service of the sentence was to be determined by the
trial court, after a hearing. A Pre-sentence Investigation Report was prepared, and a sentencing
hearing was conducted on February 11, 2000. At the conclusion of the sentencing hearing, the trial
judge denied the defendant full probation and ordered him to serve 270 days in the workhouse on
weekends (“day for day”) from 7:00 p.m. on Fridays to 7:00 p.m. on Sundays and ordered five years
probation with a 10:00 p.m. curfew on weekdays. The defendant was also ordered to maintain
employment and to continue psychiatric care.

        In this appeal the defendant contends that the trial court erred in refusing to fully suspend his
sentence or, in the alternative, place him on some other less restrictive form of alternative sentencing.
After review, we affirm the trial court’s denial of full probation; however, we modify the defendant’s
sentence.

                                                 Facts

        The defendant stipulated to the following summary of facts in support of his conviction:

        MR. CAMPBELL: Your Honor, the facts that give rise to this indictment occurred
        during the summer of 1992. The defendant was babysitting for the victim in this case
        and her sister. During that time, the victims – during that time after this time, the
        victims told their father that the defendant had taught them how to, quote, unquote,
        pee like a boy, as well as some details regarding how to masturbate. The father then
        turned in this information to the police.

        The defendant was subsequently interviewed by the Navy after he went into the
        Navy. That testimony, Your Honor recalls, the special investigator for the Navy was
        here. He, in his statement, denied any contact but did in fact give statements that
        seemed to corroborate what these little girls were saying had happened. He was then
        charged with this offense.

                                                 ***

        MS. ALUKO: Your Honor, we would stipulate with one exception. I believe that the
        initial complaint came from a teacher –

        MR. CAMPBELL: Okay. Right.

        MS. ALUKO: – and not the parent of the child. We would stipulate that those are
        the facts that the state would have presented had this matter gone to trial, and we do
        ask you to accept the negotiated settlement.


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        The pre-sentence report contained no information from the victim or her family. The report
reflects they were unable to be located. Therefore, we have no information concerning the impact
of this crime on the victim. At the time of sentencing the victim was around seven years old and
her sister was around twelve years old.

                                               Analysis

         The defendant contends the trial court erred in denying him full probation or some other less
restrictive form of alternative sentencing. The State contends the record supports the trial court’s
sentencing determination, and that the sentence should be affirmed.

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken 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. Ashy, 823
S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing the accused or to determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App.), perm. app. denied (Tenn. 1994).
However, this Court must give great weight to the trial court’s determination of controverted facts
as the trial court’s determination of these facts is predicated upon the witnesses’ demeanor and
appearance when testifying.

        The defendant, as the party challenging the sentence imposed by the trial court, has the
burden of establishing that his sentence was erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; Ashy, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311. In determining
whether the defendant has shown that the sentence imposed by the trial court was erroneous, this
Court considers: (a) any evidence received at the trial and/or sentencing hearing; (b) the presentence
report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the nature and
characteristics of the offense; (f) any mitigating or enhancing factors; (g) any statements made by
the accused in his own behalf; and (h) the accused’s potential, or lack of potential, for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103 and -201; State v. Scott, 735 S.W.2d 825, 829 (Tenn.
Crim. App.), perm. app. denied, (Tenn. 1987).

        In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of both the defendant and the public.
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim.
App. 1995). The defendant’s lack of credibility is also an appropriate consideration and reflects on


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a defendant’s potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.
1994).

        Probation may be denied based solely on the circumstances surrounding the offense. State
v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). However, the circumstances of the
offense as committed must be especially violent, horrifying, shocking, reprehensible, offensive, or
otherwise of a excessive or exaggerated degree; and the nature of the offense must outweigh all
factors favoring probation. Hartley, 818 S.W.2d at 374-75.

        In determining if incarceration is appropriate, a trial court considers (1) the need to protect
society by restraining a defendant having a long history of criminal conduct; (2) the need to avoid
depreciating the seriousness of the offense; (3) whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses; and (4) whether less restrictive measures
have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-
103(1); see also Ashy, 823 S.W.2d at 169; 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).

        At the sentencing hearing only the defendant and his father testified. The defendant was
twenty years old at the time of the offense and twenty-seven at the time of the sentencing hearing.
He has no prior juvenile or adult criminal record of arrests or convictions. He does not use drugs
or alcohol. He resides with his parents and the family is willing to support any conditions of
probation. He faithfully attends church and received a perfect attendance certificate for attendance
in Sunday School. He is employed where he works approximately forty hours per week from 2:30
p.m. to 12:00 a.m. He admits that he was at fault in this offense. He states he is staying away from
situations where he would be alone with children. He has investigated avenues of obtaining
psychological help but is limited by his lack of financial resources. Nevertheless, he was evaluated
by Dr. Hoffman, a specialist in the “special problems unit” at Dr. William Murphy’s Clinic at the
University of Tennessee. A treatment program has been created for the defendant. In addition, the
defendant’s father pledges his support for his son and is willing to assist his son in complying with
any conditions of probation set by the court.

        After hearing all the proof, the trial court sentenced the defendant and denied his request for
full probation because of (a) the horrifying nature of the offense, (b) the need for punishment, and
(c) the need for deterrence. However, the trial court granted the defendant an alternative sentence
of serving 270 days in the workhouse on weekends (“day for day”) from 7:00 p.m. on Fridays to 7:00
p.m. on Sundays and five years probation with a 10:00 p.m. curfew on weekdays.

        After our de novo review of the record before us, we find that there is insufficient evidence
to deny probation solely on the need for deterrence and need for punishment, as some aspect of these
is present in every case. See, e.g., State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). In addition, we
do not concur with the trial court’s finding that this offense was necessarily “horrifying” as set out
in State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). We recognize the seriousness



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of this case and all child sexual cases, but, do not, however, find that this case rises to such an
exaggerated degree as to be “horrifying” under the Hartley test.

        We do find, in our de novo review, that some incarceration is necessary to avoid depreciating
the seriousness of this offense. The defendant was charged with aggravated sexual battery of a child
under thirteen years of age and pled guilty to attempt to commit aggravated child sexual battery. We
believe that the underlying facts giving rise to this crime are such that mandate some period of
incarceration. Therefore, the need to avoid depreciating the seriousness of this offense supports the
trial court’s determination that some incarceration is necessary.

        The trial court was correct in its denial of full probation. However, we conclude that under
the facts of this case requiring the defendant to serve 270 days on weekend was erroneous. Such a
sentence would require this defendant to be incarcerated every weekend for a period of two years and
seven months. Therefore, we modify the term of periodic confinement to 104 days on the weekends.
We further agree with the trial court’s imposition of probation for a five year period and all other
conditions set out by the trial court.

                                            Conclusion

        Accordingly, we affirm the trial court’s judgment in every respect except we modify the term
of periodic confinement to 104 days on the weekends.




                                                              ______________________________
                                                              JOHN EVERETT WILLIAMS, JUDGE




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