            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                       March 5, 2013 Session

               STATE OF TENNESSEE v. ROBERT JOSEPH HARR

                      Appeal from the Circuit Court for Carroll County
                         No. 10-CR-0159 Donald E. Parish, Judge


                No. W2011-02735-CCA-R3-CD - Filed September 27, 2013




J OSEPH M. T IPTON, P.J., concurring and dissenting.

     I concur with the majority opinion, except I respectfully disagree with its affirming the
imposition of forty-five days’ confinement. I do not believe the trial court justified
confinement as opposed to full probation under the circumstances in this case. My view
results from the trial court’s findings and the law that guides its determinations.

      As the majority opinion indicates, the record reflects that the appellant’s background
is worthy of note. He had no significant history of criminal conduct.1 He was a Vietnam
veteran and had maintained employment throughout his life. He had worked at a homeless
shelter. He had fostered thirty to forty children. Significantly, he had found work for young
men on probation, noting that his son could not find work after being incarcerated. The trial
court also found that he had “good potential for rehabilitation.” At the time of the trial, the
appellant suffered from “white cancer” and kidney failure.

      With these facts indicating the appellant was a good candidate for probation, the trial
court chose to require him to serve forty-five days. It stated that there was “some need for
the protection of the interests of society for future criminal conduct.” It also stated that
“some confinement” would “provide an effective deterrent to others” and that full probation
would “depreciate the seriousness of the offense.”

       My problem is that the trial court did not note any fact or circumstance in the case that
would give rise to these concerns or separate this case from other similar offenses. Although
the trial court’s comments indicated that it believed the appellant committed a sexual battery,


        1
         The trial court referred to a case in an adjacent county but stated it would not consider it in this
case. The record does not show what that case involved, and we, too, should not consider it.
a Class E felony, the legislature has authorized a sentence for full probation for that offense
in appropriate cases. See T.C.A. § 40-35-303(a) (2010).

      In any event, the basic considerations for felony sentencing also apply to misdemeanor
sentencing. “The court shall impose a sentence consistent with the purposes and principles
of this chapter.” T.C.A. § 40-35-302(b). The same is true regarding probation. “In
determining the percentage of the sentence to be served in actual confinement, the court shall
consider the purposes of this chapter, the principles of sentencing and the enhancement and
mitigating factors set forth in this chapter and shall not impose such percentages arbitrarily.”
Id. at -302(d).

      The majority opinion quotes Tennessee Code Annotated section 40-35-103(1)(A)-(C)
as considerations for sentences to confinement. The present case involves (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 a similar
offense.” Neither the trial court nor the majority opinion, though, specifies what facts justify
confinement in this case.

      Initially, I do not believe that our supreme court intended in Bise or Caudle to do away,
in wholesale fashion, with Tennessee jurisprudence developed over the last thirty years upon
which the Sentencing Act is based and in which the Act’s provisions are interpreted. One
such consideration is that the circumstances surrounding an offense may not justify denying
probation regardless of the other factors to be considered unless they are “especially violent,
horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated
degree.” State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); see State v. Fields, 40 S.W.3d
435, 441 (Tenn. 2001); State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991)
(stating the Travis standard applies to section 40-35-103(1)(B)). I note that Travis was
decided under an abuse of discretion standard, which we use now. In this regard, I do not
believe the circumstances in this case rise to the degree contemplated in Travis.

       The other relevant consideration is the need for deterrence. The general deterrence
expected from punishment is not what is at issue. The Sentencing Act states that
confinement be “particularly suited to provide an effective deterrence to others likely to
commit similar offenses.” T.C.A. § 40-35-103(1)(B). This means that the evidence
presented should “indicate some special need or consideration relative to that jurisdiction
which would not be addressed by the normal deterrence inherent in any criminal activity.”
Hartley, 818 S.W.2d at 375; see State v. Nunley, 22 S.W.3d 282, 286 (Tenn. Crim. App.
1999). In other words, a finding of deterrence must not be conclusory, but based upon proof.
See State v. Davis, 940 S.W.2d 558, 560 (Tenn. 1997). In State v. Hooper, 29 S.W.3d 1, 9
(Tenn. 2000), our supreme court stated that given the goals of the Sentencing Act, a “blanket

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policy allowing incarceration based solely upon deterrence could do significant harm to these
purposes, if not eliminate them all together.” I do not believe the circumstances in this case
reflect that confinement is particularly suited for deterrence purposes, and I believe the trial
court made a conclusory finding of the need for deterrence.

        Based on the trial court findings, the appellant, the circumstances of the case, and the
applicable purposes and principles for sentencing, I believe the sentence to confinement for
forty-five days was arbitrarily imposed. I would order that the appellant be placed on
probation.




                                            ____________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




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