         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 26, 2004

             STATE OF TENNESSEE v. JACKIE SAMUEL FINGER

                       Appeal from the Circuit Court for Blount County
                       No. C-13527, 13803 D. Kelley Thomas, Jr., Judge



                    No. E2003-02994-CCA-R3-CD - Filed January 31, 2005


The appellant, Jackie Samuel Finger, pled guilty to aggravated burglary and attempted rape. The
plea agreement specified that he would receive a four-year sentence on each charge as a Range I,
Standard Offender and that the sentences would run concurrently, for an effective sentence of four
years. The manner of service of the sentence was to be determined by the trial court. After a hearing,
the trial court denied alternative sentencing and ordered the appellant to serve the sentence in the
Department of Correction in the Special Needs Facility. On appeal, the appellant challenges his
conviction for aggravated burglary as void due to a mistake on the judgment form and the trial
court’s denial of alternative sentencing. Because the trial court corrected the judgment to reflect the
proper conviction and properly denied alternative sentencing, we affirm the judgment of the trial
court.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which ALAN E. GLENN and J. C. MCLIN ,
JJ., joined.

Steve McEwen, Mountain City, Tennessee, (on appeal); and Shawn G. Graham, Assistant District
Public Defender, Maryville, Tennessee, (at trial), for the appellant, Jackie Samuel Finger.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman McIntire, Assistant Attorney
General; Mike Flynn, District Attorney General, and Robert Headrick, Assistant District Attorney,
for the appellee, State of Tennessee.
                                              OPINION

                                         Factual Background



       On March 4, 2002, two separate informations were filed charging the appellant with
aggravated burglary and attempted rape. The appellant waived prosecution by indictment and agreed
to proceed on the informations.

        The appellant subsequently pled guilty to both charges with an agreed sentence of four years
as a Range I, Standard Offender on each conviction, to run concurrently, for a total effective sentence
of four years. The manner of service of sentence was to be determined by the trial court.

        According to the presentence report, on August 4, 2001, the appellant entered the victim’s
home without her permission. Once inside, the appellant began touching the victim’s private parts.
Despite her requests to stop, the appellant forced the victim onto the couch and, while holding her
down, continued to touch her private parts. The appellant told the victim that he wanted to have sex
with her. The two struggled for several minutes until the victim finally broke free. The appellant
exposed himself to the victim and forced the victim against his penis. The victim continued to
struggle with the appellant and told him “no.” Eventually, the appellant fled the victim’s residence.

         At the sentencing hearing, the appellant testified that he was thirty-two years of age and lived
with his mother and step-father. At the time, he was single and had no children. The appellant told
the court that he did “odd jobs” like mowing yards and raking leaves. He stated that he received
disability payments in excess of $500 per month because of mental disabilities. The appellant
testified that he had a twelfth grade education, but could not read very well.

         The appellant testified that he went to the victim’s house to obtain payment for mowing her
yard. The appellant claimed that the victim invited him inside her home and wrote him a check for
$15 for his services. The appellant stated that he and the victim continued talking for about fifteen
to twenty minutes and eventually sat down on the couch together. He described the victim’s actions
as “friendly.” He admitted that he “kind of touched her breast” and that he should not have engaged
in this type of behavior. The appellant stated that he would not engage in this type of behavior again.

       The appellant admitted that he had previous charges for resisting arrest and assault, but that
he was acquitted of the resisting arrest charge. The appellant also stated that while he had never been
placed on probation, he had been required by the court to attend an anger management class.

       A psychosexual evaluation completed prior to sentencing revealed that the appellant is
mentally challenged. The report detailed the appellant’s social history and living arrangements as



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well as his mental health. The following summary and recommendation appeared in the evaluation
which was introduced as an exhibit at the sentencing:

               [The appellant] is guilty of using force and coercion in his Attempted Rape
       of his adult female victim. He used force and coercion in the commission of his
       crime and has no remorse or sense of guilt. He is unable to care for himself and is
       POORLY supervised by his guardian mother who has apparently made NO effort to
       make him follow the rules of probation. He has a previous history of assault.

               Because . . . [the appellant] has poor impulse control, a history of violence,
       lacks a Guardian who will closely supervise him, and because violence was used in
       the commission of his crime, he is a poor candidate for probation and could be a
       significant danger to the community. Confinement in an institution that could
       provide education geared toward his intellectual capacity and assist him in learning
       appropriate sexual boundaries, impulse control, and overall socially appropriate
       behavior is recommended. Incarceration in the Correctional System is another
       alternative.

              [The appellant’s] victim was seriously traumatized by his actions and had to
       seek psychiatric treatment as a result of his Attempted Rape. [The appellant] should
       be ordered to compensate his victim as well as being required to pay into the State
       of Tennessee Sex Offender Victim’s Fund.

              [The appellant] is a serious danger to the community and is at risk of sexually
       reoffending, creating victims and causing injury to others.

       At the conclusion of the sentencing hearing, the appellant asked the trial court for probation,
claiming that if he were granted probation he would comply with the rules of the court. However,
the appellant agreed with the portion of the psychosexual assessment that stated he would have a
hard time controlling himself if placed in the community. Additionally, the appellant could not
unequivocally guarantee that he would attend counseling if it were required as a term of his
probation.

        The trial court determined that the presumption of alternative sentencing was overcome and
that the appellant should serve his sentence in the Tennessee Department of Correction. The trial
court also ordered that the appellant be housed in the Special Needs Facility.

       The appellant filed a timely notice of appeal challenging his conviction for aggravated
burglary as void and the trial court’s decision to deny alternative sentencing.




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                                  Aggravated Burglary Conviction

         The appellant first contends on appeal that his judgment in case no. C-13527 is void because
the information in the case charged him with aggravated burglary and the judgment form reflects a
guilty plea for attempted rape. The State concedes that the information charges the appellant with
aggravated burglary and that the original judgment entered reflects that the appellant pled guilty to
attempted rape. However, the State argues that the appellant’s argument has no merit because the
trial court filed an amended judgment properly reflecting that the appellant pled guilty to aggravated
burglary in case no. C-13527. We agree. Tennessee Rule of Criminal Procedure 36 allows a trial
court to correct a mistake in the judgment at any time. The trial court herein filed an amended
judgment correcting its mistake. Accordingly, the appellant’s judgment is not void and this issue
is without merit.

                                  Denial of Alternative Sentencing

       The appellant also complains on appeal that the trial court erred by denying him probation
or another form of alternative sentencing. Specifically, the appellant argues that “the record does
not support the trial court’s conclusion that the presumption in favor of alternative sentencing had
been rebutted.” The State counters that the trial court properly determined that the appellant was not
a good candidate for any type of alternative sentencing.

        “When reviewing sentencing issues . . ., the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted 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). “However, the presumption of correctness which accompanies the trial court’s action
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). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

        In regards to alternative sentencing Tennessee Code Annotated section 40-35-102(5) provides
as follows:

       In recognition that state prison capacities and the funds to build and maintain them
       are limited, convicted felons committing the most severe offenses, possessing
       criminal histories evincing a clear disregard for the laws and morals of society, and
       evincing failure of past efforts at rehabilitation shall be given first priority regarding
       sentencing involving incarceration.



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A defendant who does not fall within this class of offenders “and who is an especially mitigated
offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court
must presume that a defendant sentenced to eight years or less is an offender for whom incarceration
would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim.
App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The appellant pled guilty to aggravated
burglary and attempted rape, both Class C felonies. As a Range I, Standard Offender convicted of
and sentenced to less than eight (8) years for each of these offenses, the appellant was eligible for
probation. See Tenn. Code Ann. §§ 40-35-102(6) & -303(a); Byrd, 861 S.W.2d at 379-80. However,
all offenders who meet the criteria are not entitled to relief; instead, sentencing issues must be
determined by the facts and circumstances of each case. See State v. Taylor, 744 S.W.2d 919, 922
(Tenn. Crim. App. 1987) (citing State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). Even if a
defendant is presumed to be a favorable candidate for alternative sentencing under Tennessee Code
Annotated section 40-35-102(6), the statutory presumption of an alternative sentence may be
overcome if

       (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)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated section 40-35-103(5), which states, in
pertinent part, “[t]he potential or lack of potential for the rehabilitation or treatment of a defendant
should be considered in determining the sentence alternative or length of a term to be imposed.”
Tenn. Code Ann. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).
The trial court may consider a defendant’s untruthfulness and lack of candor as they relate to the
potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999); see
also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v. Zeolia, 928 S.W.2d 457, 463
(Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy,
894 S.W.2d at 305-06.

       In the case herein, the trial court learned through the appellant’s testimony at the sentencing
hearing and the pre-sentence report that the appellant was disabled, collected social security and
worked odd jobs such as mowing yards and raking leaves. The trial court also learned that the
appellant acquired an additional assault conviction since his arrest in the present case and that he was
poorly supervised by his family members. The trial court also learned that the incident had a



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profound effect on the victim, requiring therapy to deal with the emotional problems she experienced
as a result of the incident.

        The trial court recognized that the appellant was presumptively eligible for probation or some
other form of alternative sentencing. However, the trial court denied alternative sentencing and
commented:

                In arriving at . . . the manner of service, I have considered the testimony that
       . . . [the appellant] gave here on the witness stand, I have read several times the
       psycho-sexual evaluation that is an exhibit, and also the presentence report that has
       the victim impact statement attached to it. I’ve considered the Sentencing Act. As
       I said earlier, this is a C-felony, range one, so . . . [the appellant] is presumed
       appropriate for alternative sentencing. I have considered probation, split
       confinement, and also Community Corrections.

              I think that the presumption in favor of alternative sentencing has been
       rebutted. I think this calls for a sentence of confinement as a range-one offender in
       the Department. I think . . . [the appellant] should be treated in the Special Needs
       Unit. There is no evidence of any appropriate and safe treatment that’s available in
       the community, and I don’t know of any.

               I think any sentence that would involve release, whether straight probation or
       split confinement, is not in the interest of the community or the Defendant or justice.
       And the reason I say that is because, under the proof, . . . [the appellant] has difficulty
       understanding other people; he has a poor ability to follow instructions; was told not
       to be around children [by the psycho-sexual evaluator] and was seen just a few days
       later around young children down on the Greenbelt; his supervision is minimal; he
       has got a simple assault, misdemeanor assault conviction since this even has
       happened.

                 So all of that, I think, points to a slim chance at rehabilitation, absent some
       sort of intervention. And I think the only way that that can be safely performed for
       . . . [the appellant’s ] own safety, to keep him from committing more offenses, and
       for the public’s safety, is for him to be housed at the Special Needs Unit and treated,
       and then, when appropriate, paroled. And hopefully he’ll be in the position to be able
       to follow the rules of release and be safe for himself and everybody else.

       As stated previously, we review sentencing issues with the presumption that the
determinations made by the trial court are correct so long as the trial court followed sentencing
procedures. Tenn. Code Ann. § 40-35-401(d). The record herein fully supports that the trial court
analyzed the relevant factors for denying the appellant’s request for probation. Therefore, there is
a presumption that the trial court’s judgment is correct. It is clear in this case that the trial court
believed that the appellant was not a good candidate for probation primarily based on his psycho-


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sexual evaluation, his own testimony and lack of ability to follow rules. The trial court felt that the
appellant’s needs would be best served in incarceration. Further, the trial court commented that the
best interests of the community would be served by the appellant serving his sentence in
incarceration. We agree with the trial court’s assessments. The evidence does not preponderate
against the trial court’s sentencing determination. Accordingly, the judgment of the trial court is
affirmed.

                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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