         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    April 18, 2006 Session

            STATE OF TENNESSEE v. EDWARD JANKOWSKI, SR.

                     Appeal from the Circuit Court for Sequatchie County
                               No. 4431   Buddy Perry, Judge



                     No. M2005-01251-CCA-R3-CD - Filed June 2m 2006


The Defendant, Edward Jankowski, Sr., appeals from the sentencing decision of the Sequatchie
County Circuit Court. The Defendant pled guilty to one count of incest. The victim was his
eighteen-year-old daughter. Pursuant to the terms of the plea agreement, he received a six-year
sentence as a Range I, standard offender, and the manner of service was to be determined by the trial
court. Following a sentencing hearing, the trial court ordered the sentence to be served in the
Department of Correction. On appeal, the Defendant argues that the trial court erred by ordering a
sentence of total confinement rather than a less restrictive alternative. After review, the sentencing
decision is affirmed.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Robert Morgan, Assistant Public Defender, Jasper, Tennessee, for the appellant, Edward Jankowski,
Sr.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; and
J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

        A Sequatchie County grand jury returned an indictment against the Defendant in September
of 2004, charging him with five counts of rape and five counts of incest. On January 31, 2005, the
Defendant, a Range I, standard offender, pled guilty to one count of incest, a Class C felony. See
Tenn. Code Ann. § 39-15-302. The plea agreement provided for a six-year sentence with the manner
of service to be determined by the trial court.
        The official version of the events contained in the presentence report summarizes the facts
as follows:

                  On 1/13/04, [the victim], age 18, was taken to Grandview Medical Center
         Emergency Room by her boyfriend, Johnny Carter. Her complaint was that two days
         prior, on 1/11/04, she had been raped by her father, [the Defendant], and that she was
         in severe pain. Emergency room personnel utilized a rape kit, and evidence of
         vaginal bleeding and cuts were found. On 1/14/04, Investigator Keith [Herron] of the
         Sequatchie County Sheriff’s Department interviewed the victim at the sheriff’s
         office. The victim stated that her father had been having sex with her against her will
         regularly for the past two years; she estimated that he had raped her between fifty and
         one hundred times over the past two years. The victim had turned 18 on 12/12/03.
         The most recent occasion was around noon on 1/11/04. The victim, who was living
         in the home with her mother and father at the time of these incidents, stated that her
         father had asked her to come out to the shed on his property; he stated, “I need to use
         you again,” which is what he would usually say when he wanted to rape her. When
         she went out there, he put her on a table saw and had sex with her. The victim stated
         that she complained to the Defendant repeatedly that he was hurting her, but he
         would not stop, and would state, “It won’t take long.” Afterwards, he told her that
         she would get into trouble if she told anyone. The victim told her boyfriend that
         evening what had happened, and when she continued to complain of pain two days
         later, he took her to the hospital.

                 Semen taken from the victim’s panties was sent to the Tennessee Bureau of
         Investigation laboratory in Nashville. The Defendant was ordered by the Sequatchie
         County Circuit Court on 5/28/04 to submit to DNA testing.1 The laboratory report
         was completed on 9/2/04 and it indicated a positive match between the Defendant’s
         DNA and the DNA found in the semen in the [victim’s] panties.

A sentencing hearing was held on April 13, 2005, at the conclusion of which the trial court ordered
that the sentence be served in the Department of Correction. This appeal followed.


                                          ANALYSIS
        In this appeal as of right, the Defendant argues: (1) “the sentencing court committed
reversible error when it relied upon inadmissible hearsay evidence in order to deny the defendant
alternative sentencing” and (2) “the sentencing court failed to comply with the 1989 Sentencing
Reform Act when it denied the defendant an alternative sentence.”




        1
          It was developed at the sentencing hearing that the Defendant voluntarily submitted a blood sample and that
the hospital “did not want to . . . do it without a court order[.]”

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A. Hearsay
        First, the Defendant contends the trial court based its sentencing determination on unreliable
hearsay; specifically, reliance on the victim’s statements contained in the presentence report that the
she was raped “between fifty and one hundred times” and that the Defendant stated to her, “I need
to use you again[.]” The Defendant concedes that he made no objection to use of the victim’s
statements; however, the Defendant argues that any reliance on these hearsay statements rises to the
level of plain error. The State argues that the issue is waived because the Defendant failed to make
a timely objection and, additionally, that the record does not support plain error review.

        “Objections must be timely and specific.” Tenn. R. Evid. 103, Advisory Commission
Comments. Relief is not available to a party who is responsible for, or fails to take action to prevent,
an error. Tenn. R. App. P. 36(a). Therefore, the Defendant’s challenge to any hearsay statements
contained in the presentence report is waived.

        In addition, the issue presented by the Defendant fails to meet the requirements necessary for
a finding of plain error. A finding of plain error will only be predicated upon consideration of the
following factors:

       (a) the record must clearly establish what occurred in the trial court;

       (b) a clear and unequivocal rule of law must have been breached;

       (c) a substantial right of the accused must have been adversely affected;

       (d) the accused [must not have waived] the issue for tactical reasons; and

       (e) consideration of the error [must be] “necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).


       Tennessee Code Annotated section 40-35-209(b) addresses the sentencing hearing and
provides, in pertinent part:

       The rules of evidence shall apply, except that reliable hearsay including, but not
       limited to, certified copies of convictions or documents, may be admitted if the
       opposing party is accorded a fair opportunity to rebut any hearsay evidence so
       admitted; provided, that this subsection shall not be construed to authorize the
       introduction of any evidence secured in violation of the constitution of the United
       States or of Tennessee.




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This Court has consistently held that information in a presentence report is reliable hearsay which
may be admitted if the opposing party is offered the opportunity to rebut the same. See State v.
Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997); State v. Richardson, 875 S.W.2d 671, 677 (Tenn.
Crim. App. 1993); State v. Randolph Scott Jennings, No. E2001-02118-CCA-R3-CD, 2002 WL
31730884, at *5 (Tenn. Crim. App., Knoxville, Dec. 6, 2002). The trial court is also required to
consider the presentence report before imposing sentence. Tenn. Code Ann. § 40-35-210(b)(2)
(2003).2 Moreover, the Tennessee Criminal Sentencing Reform Act of 1989 contemplates that much
of the information contained in a presentence report will be hearsay. Baker, 956 S.W.2d at 17.
However, the information is reliable because it is “based upon the presentence officer’s research of
the records, contact with relevant agencies, and the gathering of information which is required to be
included in a presentence report.” Id.

        The Defendant also contends that he did not have an opportunity to rebut the evidence; thus,
violating his constitutional right to confront witnesses against him. Following the trial court’s
reference to “two things in the victim’s statements,” counsel for the Defendant stated that “we
haven’t received a victim’s statement.” The trial court clarified that it was referencing the official
version of events as stated in the presentence report, not a victim impact statement. It is clear from
the record that the Defendant had access to the presentence report, and he chose not to make a
statement or call any witnesses on his behalf at the sentencing hearing. The Defendant was not
denied an opportunity to rebut this evidence.

        The trial court properly relied on the presentence report and any information contained
therein. The Defendant is not entitled to relief under the plain error doctrine because a clear and
unequivocal rule of law was not breached, no substantial right of the Defendant was adversely
affected, and consideration of the error is not necessary to do substantial justice. See Adkisson, 899
S.W.2d at 641-42.

B. Total Confinement
        Next, the Defendant submits that the trial court failed to comply with the purposes and
principles of the 1989 Sentencing Act and erroneously denied his request for alternative sentencing.
A defendant who does not possess a criminal history showing a clear disregard for society’s laws and
morals, who has not failed past rehabilitation efforts, and who “is an especially mitigated or standard
offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-
102(6) (2003); see also State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The following
considerations provide guidance regarding what constitutes “evidence to the contrary” which would
rebut the presumption of alternative sentencing:



         2
          W e note that the legislature has recently amended several provisions of the Criminal Sentencing Reform Act
of 1989, said changes becoming effective June 7, 2005. However, the Defendant’s crimes in this case, as well as his
sentencing, predate the effective date of these amendments. Therefore, this case is not affected by the 2005 amendments,
and the statutes cited in this opinion are those that were in effect at the time the instant crimes were committed

                                                          -4-
       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
       confinement is particularly suited to provide an effective deterrence to others likely
       to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).


        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the defendant’s potential for rehabilitation or treatment in determining
the appropriate sentence. See id. § 40-35-103(5).

        Upon a challenge to the sentence imposed, this Court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d) (2003). However, 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). We will
uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes and
principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported by
the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that a
sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments (2003); Arnett, 49 S.W.3d at 257.

       In concluding that total confinement was appropriate, the trial court found:

       [I]f I look at the facts in this case where I’ve got the victim saying this went on
       between a 150 times [sic] and the day that this occurred, the event that occurred, he
       says to her, “I need you again.” And used her as [his] personal sex object. If that
       doesn’t fit [reprehensible] or excessive shocking [sic] sufficient to overcome the
       presumption that alternative sentencing is appropriate then I don’t think I could state
       a set of facts that are.

       At the sentencing hearing, the forty-four-year-old Defendant entered into evidence copies of
his two honorable discharges from the military; however, he declined to make any statement at his
sentencing hearing. The presentence report reflected that the Defendant had no prior criminal record



                                                 -5-
and had graduated from high school. He was unable to work due to a back injury. The parties
stipulated that the Defendant had a place to live upon his release.

        The risk assessment of this Defendant found that there was a low risk that the Defendant
would reoffend. It was stated in the risk assessment report that the Defendant would “do best if . .
. incarcerated for a period of time and then given an elongated probation that included treatment and
case management.” The trial court acknowledged the Defendant’s potential for rehabilitation stating,
“The best thing you’ve got going is his report. His report is really quite favorable. . . . Yeah, but the
report is very favorable to him.”

        The record supports the trial court’s determination that confinement is necessary to avoid
depreciating the seriousness of the offense. The facts of this case establish that the Defendant’s
conduct was reprehensible, offensive, and of an excessive degree. See State v. Hartley, 818 S.W.2d
370, 374-75 (Tenn. Crim. App. 1991). As noted by the trial court, “using your somewhat slow child
as your personal pleasure object [is] about as reprehensible as you can get.” Moreover, the victim
was in such extreme pain two days after the incident that she sought medical treatment, and evidence
of vaginal bleeding and cuts were found. She repeatedly complained of pain during the incident, but
the Defendant stated to her, “It won’t take long.”

        Although enhancement and mitigating factors are properly considered when determining
whether to grant an alternative sentence, see Tenn. Code Ann. § 40-35-210(b)(5), consideration of
these factors, contrary to the apparent assertions of the Defendant, is not critical to an alternative
sentencing determination. State v. Terry Edward Jones, No. E2004-01300-CCA-R3-CD, 2005 WL
1219979, at *6 (Tenn. Crim. App., Knoxville, May 24, 2005). Nonetheless, as the victim’s father,
the Defendant occupied a position of trust. Children trust their parents to care for and protect them.
The Defendant, in this case, abused that trust. State v. Richard L. Thompson, No. M2000-01429-
CCA-R3-CD, 2001 WL 1028822, at *7 (Tenn. Crim. App., Nashville, Sept. 7, 2001) (defendant’s
incestuous acts over a period of months, coupled with his abuse of a private trust, directly relevant
to the seriousness of the offense and weighed in favor of confinement). Moreover, upon de novo
review, we conclude that the sentence imposed is no greater than that deserved for the offense
committed and is the least severe measure necessary to achieve the purposes for which the sentence
is imposed. The record amply supports the trial court’s decision in denying alternative sentencing.
See id. at *8. This issue is without merit.


                                     CONCLUSION
       Based upon the foregoing, we conclude that the trial court did not err in ordering total
confinement. The judgment of the Sequatchie County Circuit Court is affirmed.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE


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