            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1999


                                                             FILED
STATE OF TENNESSEE,     )                              April 19, 1999
                        )        No. 02C01-9808-CC-00251
    Appellee            )                            Cecil Crowson, Jr.
                        )        HARDIN COUNTY       Appellate C ourt Clerk
vs.                     )
                        )        Hon. C. Creed McGinley, Judge
HAROLD DEWAYNE JARRETT, )
                        )        (Three Counts - Sexual Battery)
    Appellant           )



For the Appellant:               For the Appellee:

Richard W. DeBerry               Paul G. Summers
Asst. District Public Defender   Attorney General and Reporter
117 Forrest Avenue North
Camden, TN 38320                 Patricia C. Kussmann
                                 Assistant Attorney General
                                 Criminal Justice Division
Guy T. Wilkinson                 425 Fifth Avenue North
District Public Defender         2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 G. Robert Radford
                                 District Attorney General

                                 John W. Overton
                                 Asst. District Attorney General
                                 P. O. Box 484
                                 Savannah, TN 38372




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                            OPINION



        The appellant, Harold Dewayne Jarrett, entered “best interest” guilty pleas to

three counts of sexual battery in the Circuit Court of Hardin County on June 9,

1998.1 The negotiated plea agreement provided that the appellant would receive

three two year sentences to be served consecutively and that the trial court would

determine the manner of service of the sentences. At the sentencing hearing, the

trial court imposed penitentiary confinement. The appellant appeals this ruling,

arguing that the trial court should have granted him either total probation or

placement in a community corrections program.



        Finding no error in the sentencing decision of the trial court, we affirm.




                                          Background



        The appellant’s convictions arose from incidents in early 1998 involving three

minor children, ages seven, fourteen, and fifteen. The appellant was a neighbor and

friend of the victims’ parents and the victims often visited at the appellant’s

residence. The basis for the instant charges stem from the appellant’s sexual

contact of the juvenile victims in the appellant’s automobile and in his home.



        Despite these allegations, the appellant adamantly denies his culpability in

these offenses. Rather, he maintains that the “three girls lied about me messing

with them.” The appellant provided his version of the events which entailed his

driving the three girls to Wal-Mart so they could purchase film. The appellant

dropped the girls off at Wal-Mart while he waited in his vehicle in the parking lot.



        1
          The appellant was indicted on two counts of sexual battery and one count of aggravated
sex ual ba ttery.

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Inside the store, the three girls were arrested for shoplifting and taken to “city hall.”

Frightened by what would happen to them, the girls informed police officers that the

appellant “had handle[d] the girls the wrong way.”



       At the time of the sentencing hearing, the appellant, a life-long resident of

Hardin County, was a sixty-seven year old divorcee. The appellant has no prior

criminal record. He has never abused alcohol nor taken any illegal substance. The

appellant quit school in the sixth grade in order to help on his parents’ farm. The

appellant’s medical condition is in a state of deterioration. Since the late 1970's, the

appellant has suffered an “episode of Bell’s Palsy . . . , stroke (1981-82), heart

surgery (1989-90), second heart attack (1995), and on-going treatment for high

blood pressure.” He is currently taking medication for his heart condition along with

blood pressure medication.



       The appellant’s granddaughter testified that, if granted probation, the

appellant would live with family members and she guaranteed that family members

would look after him. She explained that, considering the appellant’s deteriorating

health, she would like to spend time with him before he dies.



       In addition to this testimony and the pre-sentence report, the trial court also

had the opportunity to examine a mental evaluation of the appellant conducted

pursuant to Tenn. Code Ann. § 39-13-705 (1998 Supp.), which revealed:

       The examinee’s level of denial regarding his current conviction
       demonstrated severe avoidance. He denied participation in any
       offense against the victims. His lack of acceptance of responsibility
       (denial), poor insight, and failure to learn from the experience
       increases the likelihood of reoffending. Further, the examinee has
       developed, expressed, and seems to have internalized his story of how
       he was victimized for the offense(s). This will make treatment more
       complicated and difficult.

       The examinee, based o[n] his level of denial, should participate in
       individual followed by group treatment in order to reduce his tendency
       to reoffend. . . .



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       In addition, the subject’s tendency to associate himself with younger
       females and/or males should be addressed, processed, and forbidden.


       After considering all the evidence presented, the trial court denied the

appellant any form of an alternative sentence and imposed a sentence of

confinement in the Department of Correction. Specifically, the trial court found:

       We have a person before the Court that quite obviously is a sexual
       deviate and has a pattern of behavior that poses a substantial risk to
       the community at large. . . .
       ...
       . . . [T]his is the type of activity that the public deserves to be protected
       from.

       Particularly in looking at the report that was filed, Sex Offender
       Presentence Clinical Evaluation, it gives the Court great cause for
       concern because of an indication in there of his lack of acceptance or
       responsibility, his poor insight, and failure to learn from the experience
       increases the likelihood of reoffending.

       The Court feels . . . that this person poses a very high likelihood of
       recidivism. He is not the type that would be subject to effective
       rehabilitation. That alternative sentencing would be of no effect in this
       because of his lack of cooperation in compiling the sex offender’s
       report plus the nature and circumstances surrounding these offenses.




                                        Analysis

       When a defendant challenges the manner of service of his sentence, this

court must conduct a de novo review with the presumption that the determination

made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1997). This

presumption only applies, however, if the record shows that the trial court properly

considered relevant sentencing principles.      State v. Ashby, 823 S.W.2d 166, 169

(Tenn.1991). Moreover, the appellant maintains the burden of showing that the

sentence imposed by the trial court is improper. Sentencing Commission

Comments, Tenn. Code Ann. § 40-35-401(d).



       The appellant first argues that the trial court should have granted him a

sentence pursuant to the Community Corrections Act. A defendant convicted of a

crime against the person, as provided in title 39, chapter 13, parts 1-5, is not eligible


                                           4
for a community corrections sentence. See Tenn. Code Ann. § 40-36-106(a)(2)

(1996 Supp.). Sexual battery is codified at Tenn. Code Ann. § 39-13-505 and is,

therefore, a crime against the person. Notwithstanding his ineligibility based upon

the classification of offenses, he would, nevertheless, remain eligible for placement

in the community corrections program, if the proof in the record established a causal

connection between the crimes committed and a history of chronic alcohol abuse,

drug abuse or mental health problems. See Tenn. Code Ann. § 40-36-106(c). See

also State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). The record

reflects no such proof. Indeed, the appellant denies that he has a “special need” as

required by the statute. Accordingly, the appellant is not eligible for a sentence

pursuant to the Community Corrections Act.



       Nonetheless, the appellant remains statutorily eligible for probation. See

Tenn. Code Ann. § 40-35-303(a) (1997). His eligibility for probation, however, is not

conclusive; the appellant bears the burden of establishing his suitability for

probation. See Tenn. Code Ann. § 40-35-303(b). To meet this burden, the

appellant must demonstrate that probation will "subserve the ends of justice and the

best interest of both the public and the defendant." State v. Bingham, 910 S.W.2d

448, 456 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1995) (citation omitted).



       While not controlling on the issue of probation, but relevant to the sentencing

court's determination are the following:


       (1) the nature and circumstances of the conduct involved, Tenn. Code Ann §
       40-35-210(b)(4);

       (2) the defendant's potential or lack of potential for rehabilitation, Tenn. Code
       Ann. § 40-35-103(5);

       (3) whether a sentence of probation will unduly depreciate the seriousness of
       the offense, Tenn. Code Ann. § 40-35-103(1)(B); and

       (4) whether a sentence other than probation would provide an effective
       deterrent to others likely to commit similar crimes, Tenn. Code Ann. §
       40-35-103(1)(B).


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         See Bingham, 910 S.W.2d at 456.



         As previously indicated, the appellant maintains the burden of establishing

that the sentence imposed by the trial court is improper. In this regard, we find that

the appellant has failed in carrying this burden. The appellant adamantly denies any

criminal wrongdoing. Rather, he asserts that he is the victim of the ruthless revenge

and lies created by the three girls. Additionally, the record reflects the appellant’s

lack of cooperation in compiling the required sex offender’s report and the result

therein indicating that the appellant poses a very high likelihood of recidivism.

Finally, the appellant was both a trusted neighbor and friend of the victims’ and their

families. By his own admission, the victims frequently visited the appellant at his

residence and he would let them borrow food, would drive them to Wal-Mart, and

would drive them to school.



         Factors of credibility, remorse, and candor are legitimate considerations in

determining suitability for total probation as they reflect upon a defendant’s potential

for rehabilitation. See Tenn. Code Ann. §40-35-103(5) (1997); State v. Bunch, 646

S.W.2d 158 (Tenn.1993); State v. Dykes, 803 S.W.2d 250 (Tenn.Crim.App.1990);

State v. Jenkins, 733 S.W.2d 528 (Tenn.Crim.App.1987); State v. Pierson, 678

S.W.2d 905 (Tenn.1984); State v. Leone, No. 02C01-9206-CR-00148

(Tenn.Crim.App. at Jackson, September 29, 1993). Notwithstanding, there is

concern that “it is unfair” to rely solely upon the defendant’s lack of remorse or

candor where an Alford plea has been entered since an Alford plea, by definition,

does not acknowledge one’s guilt.2 See, e.g., Leone, No. 02C01-9206-CR-00148.

The nature of the plea, however, does not alter the resulting effect of the plea or

make the defendant less guilty. An Alford guilty plea is a guilty plea in all material

respects. See North Carolina v. Alford, 400 U.S. at 37, 91 S.Ct. at 167 (no

         2
           In entering an Alford plea, a defendant “faced with strong evidence of guilt and no
sub stan tial evid entia ry sup port f or [his ] claim of inn oce nce ” ma y refra in from adm itting h is
culpability and a ccept a senten ce. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160
(1970).

                                                        6
constitutional requisite that accused make express admission of guilt); United States

v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995). Indeed, this situation is no different

from that of a defendant who is found guilty by a jury and at sentencing refuses to

admit his criminal wrongdoing. Thus, a sentencing court is not prohibited from

considering a defendant’s denial or lack of remorse in making the appropriate

sentencing determination. See Leone, No. 02C01-9206-CR-00148. As evidenced

by the medical evaluation in the present case, albeit preceded by an Alford plea,

“circumstances may justify finding that defendant’s attitude and behavior are not

conducive to rehabilitation.” Id. The record supports consideration of these

principles in denying total probation. See, e.g., State v. McConnell, No. 03C01-

9604-CC-00148 (Tenn. Crim. App. at Knoxville, Feb. 24, 1998). Moreover, there is

no dispute that the young victims in this case were children over whom the appellant

had assumed a paternal role. This proof supports a finding that the appellant

abused a position of trust. See State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim.

App. 1996). Although the appellant is eligible for probation, the circumstances of

the offenses, including the appellant's abuse of a position of private trust, Tenn.

Code Ann. § 40-35-114(15), are sufficient to support a denial of probation. State v.

Boston, 938 S.W.2d 435, 438 (Tenn.Crim.App. 1996).



       After review of the record before us, we conclude that the appellant has failed

to establish that the sentence imposed by the trial court was erroneous. Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-401(d)(1997); Ashby, 823

S.W.2d at 169. The record supports the trial court’s denial of a sentence of total

probation or placement in a community corrections program. Accordingly, the

judgment of the trial court is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:


____________________________________
JOSEPH M. TIPTON, Judge



____________________________________
L. T. LAFFERTY, Senior Judge




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