             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                  FILED
                            JULY 1998 SESSION
                                                            September 10, 1998

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )
             Appellee,         )    No. 03C01-9708-CR-00370
                               )
                               )    Sullivan County
v.                             )
                               )    Honorable R. Jerry Beck, Judge
                               )
BOBBY W. CANTER,               )    (Denial of probation)
                               )
             Appellant.        )



For the Appellant:                  For the Appellee:

Stephen M. Wallace                  John Knox Walkup
District Public Defender            Attorney General of Tennessee
   and                                     and
Gale K. Flanary                     Clinton J. Morgan
Assistant Public Defender           Assistant Attorney General of Tennessee
P.O. Box 839                        425 Fifth Avenue North
Blountville, TN 37617               Nashville, TN 37243-0493

                                    H. Greeley Wells, Jr.
                                    District Attorney General
                                            and
                                    Teresa Murray Smith
                                    Greg Newman
                                    Assistant District Attorneys General
                                    P.O. Box 526
                                    Blountville, TN 37617




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                              OPINION



                The defendant, Bobby W. Canter, appeals as of right from the denial of

probation by the Sullivan County Criminal Court. Pursuant to a plea agreement, the

defendant pled guilty to the attempt to commit aggravated sexual battery, a Class C

felony, and was sentenced to eight years in the Department of Correction as a Range

II, multiple offender. 1 We affirm the trial court.



                The defendant was originally charged with the aggravated sexual battery

of his stepdaughter. The presentence report reflects that the victim stated that the

defendant required her to masturbate him and that it had happened before. It also

reflects that the defendant denied that it happened, even after his guilty plea.



                The gist of the defendant’s concern relates to the fact that as part of the

plea agreement, he agreed to attend a program with Counseling and Consultation

Services, Inc., in order to evaluate his suitability for treatment in the community. The

state had agreed that if he were suitable for such treatment, he should be placed on

intensive probation. However, the defendant did not attend any sessions.



                 At the sentencing hearing, the defendant and his live-in girlfriend testified

that he was going to the first evaluation meeting on April 23, 1997, when the car broke

down. The defendant said that he called and obtained another appointment for May 6,

1997. However, when he arrived, he was told that he would have to pay the one

hundred fifty dollars for the first missed session before he had another session. He

testified that he did not have the money.




                1
                   The record reflects that although the defendant did not qualify through prior convictions
for Ran ge II, he ag reed to s uch sta tus as p art of the p lea agree men t.

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              The defendant testified that he worked as a roofer and that business had

been slow. He said that the money he made went for rent, electricity and the like and

that he did not have the money to pay for the sessions. The presentence report reflects

that the defendant telephoned the presentence officer on August 14, 1997, and told her

that he was not going to counseling because he was not guilty and he could not afford

it. The defendant essentially confirmed this conversation in his testimony.



              In considering the sentence, the trial court noted that the defendant had a

lengthy misdemeanor record, including convictions for driving under the influence,

driving on a suspended license, theft, and obtaining money by fraud. It stated that the

presentence report reflects that the defendant was less than candid about his

employment status at the time of his interview. Also, the trial court doubted the

defendant’s sincerity relative to his claim of inability to attend the evaluation sessions

that were required. The trial court concluded that the defendant had failed to prove that

he was a worthy candidate for probation.



              The defendant contends that the record supports his request for

probation. We disagree. As a Range II, multiple offender, the defendant is not

presumed to be an appropriate candidate for alternative sentencing. See T.C.A. § 40-

35-102(6). The burden was and is on him to prove such entitlement. See State v.

Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990); T.C.A. § 40-35-401(d).



              The trial court found that the defendant was not candid, a circumstance

that bears on his amenability to rehabilitation and may justify a denial of probation. See

State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim. App. 1992). Also, the defendant’s

unexcused failure to comply with the sexual offender evaluation process militates

against probation. These circumstances, coupled with his criminal record and the




                                             3
circumstances surrounding the present offense, more than justifies the denial of

probation. The judgment of conviction is affirmed.



                                        _____________________________
                                        Joseph M. Tipton, Judge

CONCUR:



___________________________
Gary R. Wade, Presiding Judge



___________________________
David H. Welles, Judge




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