            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                            OCTOBER 1997 SESSION
                                                          January 6, 1998

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,                 *     C.C.A. # 03C01-9701-CR-00032

             Appellee,              *     CARTER COUNTY

VS.                                 *     Hon. Arden L. Hill, Judge

ANTHONY CHARLES GODSEY,             *     (Sexual Battery)

             Appellant.             *




For Appellant:                      For Appellee:

Robert Y. Oakes                     John Knox Walkup
Office of the Public Defender       Attorney General and Reporter
First Judicial District
Main Courthouse                     Georgia Blythe Felner
Elizabethton, TN 37643              Counsel for the State
                                    450 James Robertson Parkway
Gerald L. Gulley, Jr.               Nashville, TN 37243-0493
Attorney
P.O. Box 1708                       Kenneth C. Baldwin
Knoxville, TN 37901-1708            Assistant District Attorney General
(on appeal only)                    900 East Elk Avenue
                                    Elizabethton, TN 37643




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                                 OPINION

                 The defendant, Anthony Charles Godsey, was indicted by a Carter

County Grand Jury for aggravated sexual battery. Pursuant to a plea agreement,

the defendant entered a guilty plea to sexual battery, a Class E felony. Tenn. Code

Ann. § 39-13-505. The trial court approved a Range I, five-year sentence but

denied the defendant's application for probation.1



                 In this appeal of right, the defendant contends that the trial court

should have granted probation, split confinement, or Community Corrections. We

find no error and affirm the judgment of the trial court.



                 On the evening of August 3, 1995, the defendant delivered some

firewood to the residence of his friend, Lawrence "Buck" Hite. Hite's ex-wife, Nellie,

and her two minor daughters were present. After drinking several beers with Hite,

the defendant "laid down on the couch like on numerous occasions" to spend the

night. During the early morning hours of the next day, the defendant went to the

bed of the eight-year-old victim, "pulled down her panties, kissed her around her

vagina, and made digital penetration...." When the victim began to cry, the

defendant left her bedroom. Later, the victim told her grandmother who, in turn, told

Ms. Hite. A physical examination of the victim at Northside Hospital indicated sexual

abuse.



                 When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

        1
          A Ran ge I sente nce for a Class E felony is one to two years ; a Rang e III senten ce is four to
six years. Tenn. Code Ann. § 40-35-112. Our supreme court approved such hybrid sentences as
long as th ey are the p roduct o f a "plea ag reem ent enter ed volun tarily and kno wingly." Hicks v. State,
945 S.W .2d 706 ( Tenn . 1997).

                                                      2
Ann. § 40-35-401(d). 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). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's application for

probation are the circumstances of the offense, the defendant's criminal record,

social history, and present condition, and the deterrent effect upon and best interest

of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-

102(6). With certain statutory exceptions, none of which apply here, probation must

be automatically considered by the trial court if the sentence imposed is eight years

or less. Tenn. Code Ann. § 40-35-303(a), (b).




                                           3
              The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103. The Community Corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets

the minimum requirements of the Community Corrections Act of 1985, however,

does not mean that he is entitled to be sentenced under the Act as a matter of law

or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following

offenders are eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

              (3) Persons who are convicted of nonviolent felony
              offenses;

              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



              Subsection (2) would initially exclude the defendant from receiving a

Community Corrections sentence because sexual battery is a "crime[] against the

person" codified in "title 39, chapter 13, parts 1-5." See Dwight Leatherwood v.

                                           4
State, No. 113 (Tenn. Crim. App., at Knoxville, Oct. 4, 1990). He is possibly eligible,

however, under the special needs provision of the Act, which allows some

individuals who commit crimes against the person to be placed on Community

Corrections if they have special needs arising from mental health problems for which

treatment is available. Tenn. Code Ann. § 40-36-106(c).



              The 1989 Act does provide that the record of the sentencing hearing

"shall include specific findings of fact upon which application of the sentencing

principles was based." Tenn. Code Ann. § 40-35-209(c). And, while we

acknowledge that de novo appellate review does not relieve the trial judge from

compliance with the provisions of § 40-35-209(c), we are nonetheless able to

conclude that the record is adequate to support the denial of an alternative

sentence.



              The defendant, thirty-one years of age, has an eleventh grade

education and has worked as a roofer. An alcoholic who has drunk heavily since

the age of sixteen, the defendant has stated that he is "willing to do whatever is

necessary to try to treat" his problem with alcohol. The defendant provides little in

the way of support for his only child, a thirteen-year-old daughter. He is divorced

and lives with his parents.



              The presentence report reveals that the defendant has had a number

of brushes with law enforcement since the time he was nineteen years old. The

record establishes that the defendant had eleven prior convictions for public

intoxication, and prior convictions for driving under the influence, destruction of

private property, driving on an expired license, driving on a revoked license, reckless

burning, resisting arrest, and disorderly conduct. After being placed on an intensive


                                           5
probation program in 1990, the defendant was convicted of driving under the

influence within a year thereafter. The defendant became intoxicated while on work

release and took marijuana into the county jail; that resulted in an additional thirty-

day incarcerative sentence and another year of probation. In 1995, the defendant

was convicted of reckless burning, resisting arrest, and disorderly conduct; he

committed sexual battery while on probation for those offenses.



              While stating a belief that the defendant was not a "full blown"

pedophile, the trial court determined that the defendant's continuous abuse of

alcohol presented a significant risk to others. It denied probation upon the basis that

conditional release from incarceration had not worked in the past. The defendant's

prior criminal history was a significant factor in the denial. The trial court also

pointed to deterrence, both individual and general. It concluded that the victim had

been "injured for the rest of her life," based upon testimony by her mother that she

suffered both physical and psychological consequences from the assault.



              In our view, the defendant's prior criminal history militated against the

grant of probation. Although an important sentencing consideration is to impose the

least severe punishment necessary, the grant of probation might tend to depreciate

the seriousness of this offense. Tenn. Code Ann. § 40-35-103(1)(B). His failure to

rehabilitate after a number of previous jail terms and periods of probation indicates a

lack of amenability for rehabilitation. Measures less restrictive than confinement

have been unsuccessful. Tenn. Code Ann. § 40-35-103(1)(C). The number of the

prior offenses as much their gravity tend to support the denial of probation or a

sentence of split confinement. See Tenn. Code Ann. § 40-35-306.




                                            6
                Deterrence, of course, can rarely be the sole reason for the denial of

an alternative sentence. State v. Cummings, 868 S.W.2d 661, 668 (Tenn. Crim.

App. 1992); State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991). 2 Yet

sentencing requires an individualized, case-by-case approach. State v. Moss, 727

S.W.2d 229, 235 (Tenn. 1986). That method of analysis necessarily embodies the

exercise of discretion at the trial court level. See State v. Fletcher, 805 S.W.2d 785

(Tenn. Crim. App. 1991). Thus, there is a sound basis for the presumptive

correctness standard of appellate review:

                It is not the policy or purpose of this Court to place trial
                judges in a judicial strai[gh]t-jacket in this or any other
                area, and we are always reluctant to interfere with their
                traditional discretionary powers.

State v. Ashby, 823 S.W.2d 166, 171 (Tenn. 1991). That principle prevails here on

the matter of probation, split confinement, and Community Corrections. In our view,

the trial court acted within its discretion in denying an alternative sentence.



                Accordingly, the judgment is affirmed.



                                                  ________________________________
                                                  Gary R. Wade, Judge

CONCUR:


_____________________________
David H. Welles, Judge


____________________________
Jerry L. Smith, Judge



        2
          Deterrence is a factor in every criminal case and, therefore, the statutory denial of probation
because of deterrence, alone, must be supported by evidence indicating some special need or
consideration relative to that jurisdiction which would not be addressed by the normal deterrence
inheren t in any crim inal penalty. See State v. Jenkins, 733 S.W .2d 528, 535 (Tenn. Crim . App. 1987);
State v. Vance, 626 S.W.2d 287, 290 (Tenn. Crim. App. 1981). This standard appears in section 40-
35-103(1)(B) of Tenn. Code Ann., which provides for confinement if it is "particularly suited to provide
an effec tive deterre nce to oth ers likely to co mm it similar offe nses."

                                                    7
