            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE             FILED
                           JUNE 1998 SESSION
                                                     September 10, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 03C01-9708-CC-00365
            Appellee,            )
                                 )    BLOUNT COUNTY
VS.                              )
                                 )    HON. D. KELLY THOMAS, JR.
CHARLES HARRILL,                 )    JUDGE
                                 )
            Appellant.           )    (Denial of Alternative Sentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:


JULIE A. MARTIN                       JOHN KNOX WALKUP
P.O. Box 426                          Attorney General & Reporter
Knoxville, TN 37901-0426
      (On Appeal)                     GEORGIA BLYTHE FELNER
                                      Asst. Attorney General
GERALD RUSSELL                        John Sevier Bldg.
117 E. Harper Ave.                    425 Fifth Ave., North
Maryville, TN 37801                   Nashville, TN 37243-0493
      (At Trial)
                                      MIKE FLYNN
                                      District Attorney General
                                      363 Court St.
                                      Maryville, TN 37804




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                                  OPINION




                   The defendant was indicted for rape, a Class B felony. He pled guilty and

after a hearing, was sentenced to eight years as a Range I standard offender in the

Department of Correction. The defendant now appeals, arguing that the trial court should

have granted him alternative sentencing. We affirm the defendant’s sentence.



                   The defendant, a forty-five-year-old male, raped his thirteen-year-old

daughter1 one morning after his wife had left for work. The victim was in bed when the

defendant told her to take off her underpants. When she refused to obey, he forced her

knees straight and pulled off her underpants. He removed his clothing and sexually

penetrated her for thirty minutes. He then told her to take a shower and prepare for

school. The defendant drove her to school, where she reported the rape.



                   The defendant pled guilty, agreeing to a negotiated sentence of eight years.

The cause proceeded to a sentencing hearing, where the defendant requested

community release in lieu of confinement. According to the defendant’s testimony at the

hearing, the defendant did not remember the exact events during the rape, although he

did recall penetrating the victim. The defendant wished to maintain a family relationship

with his wife and the victim and stated that he shouldered full responsibility for the rape.

The defendant also admitted having a lengthy prior record, beginning at age eighteen or

nineteen, although he claimed not to remember all of his past offenses. The defendant

described his present mental health as “fair” because he allowed the rape to occur, and

he noted that because of the rape, he was attending counseling. The presentence report


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          The defendant previously adopted the victim, who is the defendant’s wife’s natural daughter by
a prio r ma rriag e. W e not e, ho weve r, that portio ns of the tra nsc ript re fer to the vic tim a s the defe nda nt’s
stepdaughter.

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acknowledges a history of drug and alcohol use, but the defendant maintained he had

not used illegal drugs in eighteen years and had not drunk alcohol heavily since around

1981. He admitted to presently enjoying a cold beer on a hot day, but he maintained that

“abstinence would be no problem” if the court so ordered.



              At the conclusion of the hearing, the trial court accepted the State’s

recommendation of eight years, which was the minimum sentence for the offense, but

noted that the evidence could have supported three enhancing factors, including the

victim’s young age, the abuse of a position of trust, and the defendant’s history of criminal

conduct. In determining whether the defendant should be released into the community

during his eight year sentence, the trial court noted that there was no restitution to be

made in this case and that confinement was necessary to protect society from the

defendant and to avoid depreciating the offense. The trial court also recognized that it

should consider the defendant’s potential for rehabilitation. Noting that the offense was

the forcible rape of a young child, the trial court stated that the defendant was not an

appropriate candidate for any kind of release and ordered the defendant to serve his

sentence in the Department of Correction. The defendant now appeals, arguing that the

trial court improperly considered his eligibility for alternative sentencing.



              Since the defendant pled guilty to a Class B felony, he did not enjoy the

presumption of alternative sentencing under T.C.A. § 40-35-102(6). While both parties

agree that the defendant is statutorily eligible for probation under T.C.A. § 40-35-303(a)

because the sentence imposed was eight years, they disagree as to whether the

defendant is statutorily eligible for community corrections under T.C.A. § 40-36-106.



              Section 40-36-106(a) provides that persons convicted of crimes against the



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person as provided in title 39, chapter 13, parts 1-5 and persons convicted of violent

felony offenses are not eligible for community corrections.        § 40-36-106(a)(2)-(3).

Because the defendant was convicted of rape, a violent felony offense, in violation of §

39-13-503, he is not eligible for community corrections under § 40-36-106(a). The

defendant contends, however, that he is eligible for community corrections under § 40-36-

106(c), which provides:

              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.

We disagree. The record is devoid of any evidence that the defendant suffers from

mental health problems, apart from the defendant’s passing assessment that raping his

daughter has caused his mental health to be “fair.” The defendant’s prior criminal record

shows some illicit drug use and alcohol abuse during the 1970s. However, the defendant

explicitly denied any illegal drug or alcohol use in the past eighteen years. He maintained

that he quit drinking alcohol “cold turkey” around 1981 and now only drinks a cold beer

in hot weather. The defendant also boasted that he has abstained from alcohol for as

long as six years and that further abstinence would be “no problem” if the court so

ordered. Given the defendant’s admissions concerning his alcohol and drug use (or lack

thereof) and the lack of evidence that the defendant suffers from mental health problems,

the defendant does not have “special needs” that would qualify him for community

corrections under § 40-36-106(c).



              Even assuming that the defendant was statutorily eligible for community

corrections, however, we agree with the trial court’s decision that the defendant is not

entitled to any sort of alternative sentencing or release in the community. The record

contains ample evidence of the defendant’s long criminal history, which is probative of


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the defendant’s lack of potential for rehabilitation. We also agree with the trial court’s

determination that confinement is necessary to avoid depreciating the seriousness of the

offense, which involved a father violating his daughter’s trust and causing her physical

and emotional damage. Given the circumstances of this case, we affirm the trial court’s

decision.



                                                 _______________________________
                                                 JOHN H. PEAY, Judge


CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge




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