            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                           SEPTEMBER 1998 SESSION
                                                         October 21, 1998

                                                      Cecil W. Crowson
STATE OF TENNESSEE,            *                     Appellate Court Clerk
                                    C.C.A. # 01C01-9708-CR-00355

             Appellee,         *    WILSON COUNTY

VS.                            *    Hon. J. O. Bond, Judge

LISA DIANE MURPHY,             *    (Solicitation to Commit First Degree
                                     Murder)
             Appellant.        *




For Appellant:                      For Appellee:

Comer L. Donnell                    John Knox Walkup
District Public Defender            Attorney General & Reporter

Howard L. Chambers                  Janis L. Turner
Assistant Public Defender           Assistant Attorney General
213 North Cumberland Street         425 Fifth Avenue North
P.O. Box 888                        Nashville, TN 37243-0493
Lebanon, TN 37087
                                    Robert Hibbett
                                    Assistant District Attorney General
                                    111 Cherry Street
                                    Lebanon, TN 37087




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                      OPINION

             The defendant, Lisa Diane Murphy, pled guilty to solicitation to commit

first degree murder. As part of a plea agreement, the trial court imposed a Range I,

ten-year sentence. The defendant appeals because the trial court denied an

alternative sentence in the Community Corrections program.



             We affirm the judgment of the trial court.



             On May 4, 1995, the seventeen-year-old defendant gave birth to a

son. She delivered the baby at her boyfriend's parents' trailer without any medical

assistance. After the baby was born, the defendant's boyfriend, William Stockwell,

who was the father, buried the infant near a barn. The defendant, who had

previously agreed to dispose of the child so that no one would discover she had

been pregnant, later claimed that she had changed her mind during labor and asked

to be taken to the hospital. Stockwell was convicted of first-degree murder and

received a life sentence. The defendant testified as a witness for the state.



             At the sentencing hearing, Dr. Jeri Lee testified that he had examined

the defendant about two weeks after she had given birth. He found that she

suffered from post traumatic stress disorder (P.T.S.D.), which resulted from the

trauma associated with unattended childbirth and the death of the victim. He

described the symptoms of P.T.S.D. as distress and depression. Dr. Lee also

determined the defendant suffered from dependent personality disorder, the primary

symptom of which is "chronic and severe problem[s] making decisions." Individuals

who suffer from this disorder rely on other people to "make their decisions for them."

Dr. Lee testified that the defendant would be able to abide by the terms of an

alternative sentence and would not be a threat to society. It was his opinion that she


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could benefit from counseling and would be a good candidate for treatment.



             The defendant, who lived with her parents, was sixteen years old at

the time she became pregnant. Stockwell was twenty-two. Since the offense, she

had graduated from high school and had been seeking employment. The defendant

acknowledged that a condition of her pre-trial release was that she disassociate

herself from Stockwell. Despite that promise, however, she had married Stockwell

and had given birth to their second child. At the time of sentencing, a divorce was

pending. Her parents were to get custody of her son in the event of a Department of

Correction sentence.



             John Johnson, principal at Watertown High School, described the

defendant as an excellent student and stated that she did not present any discipline

problems. Judy Murphy, the defendant's mother, testified that the defendant could

continue to live with her. She and the defendant's father agreed to help the

defendant meet the terms of an alternative sentence.



             The trial court made the following ruling:

             I don't believe community corrections applies on anything
             over eight years, ... The law is very clear in 40-35-303 to
             this Court when it says probation, the defendant shall be
             eligible for probation under the provisions of this chapter
             if the sentence actually imposed upon such defendant is
             eight years or less. ... [T]he Court doesn't believe it's
             available. ... I don't have any alternative, I don't believe,
             under the law as it's written but to let this lady go to
             prison for ten years.

The defendant argues that the trial court erred by concluding that, as a matter of

law, she could not serve her sentence on Community Corrections.



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


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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 court from which the appeal is

taken are correct." Tenn. Code Ann. § 40-35-401(d). 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

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

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

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210.



              Among the factors applicable to alternative sentencing consideration

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 (Tenn. 1978). 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 beneficial to the defendant and serve legitimate societal aims. State v. Griffith,

787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum

requirements of the Community Corrections Act of 1985, however, does not mean

that she is 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:


                                            4
              (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).



              Although one must receive a sentence of eight years or less to be

eligible for probation, a defendant who is sentenced under subpart (a) of Tenn.

Code Ann. § 40-36-106 is eligible for Community Corrections regardless of the

length of the sentence. "Neither the Act nor any other statute makes the length of

the accused's sentence a criteria for eligibility" under subpart (a). State v. Lanny

Crowe, No. 01C01-9503-CC-00064, slip op. at 2 (Tenn. Crim. App., at Nashville,

July 6, 1995).



              The defendant, however, is not eligible for Community Corrections

under subpart (a) because section (a)(3) excludes individuals convicted of crimes

against the person. Tenn. Code Ann. § 40-36-106(a)(3). This court has previously

held that solicitation to commit murder is a crime against the person. State v.

James Kenneth Spry, No. 01C01-9409-CC-00309, slip op. at 7 (Tenn. Crim. App., at

                                           5
Nashville, June 15, 1995). A defendant ineligible for Community Corrections under

subpart (a) may, however, be eligible under subpart (c), which creates a "special

needs" category of eligibility:

              Felony offenders not otherwise eligible under subsection
              (a), and who would be usually considered unfit for
              probation due to histories of chronic alcohol, drug abuse,
              or mental health problems, but whose special needs are
              treatable and could be served best in the community
              rather than in a correctional institution, may be
              considered eligible for punishment in the community
              under the provisions of this chapter.

Tenn. Code Ann. § 40-36-106(c) (emphasis added).



              Under our law, a defendant convicted of solicitation of first degree

murder could arguably be eligible for Community Corrections, if she can show

eligibility under the "special needs" category. In State v. Staten, 787 S.W.2d 934,

936 (Tenn. Crim. App. 1989), however, this court ruled that to be sentenced under

the "special needs" provision, the defendant must otherwise be eligible for

probation. While subpart (a) does not require eligibility for probation, subpart (c)

does. Id. This defendant is not eligible for probation because she received a ten-

year sentence. Eligibility for probation depends on the sentence being "eight (8)

years or less." Tenn. Code Ann. § 40-35-303(a). The trial court correctly ruled that

a sentence to Community Corrections was proscribed by law.



              Accordingly, the judgment of the trial court is affirmed.



                                          __________________________________
                                          Gary R. Wade, Presiding Judge




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CONCUR:



________________________________
Thomas T. W oodall, Judge



________________________________
Curwood Witt, Judge




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