         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 November 16, 2004 Session

            STATE OF TENNESSEE v. TERRY WAYNE BUCKNER

                   Direct Appeal from the Circuit Court for Coffee County
                       No. 30644 & 31664     L. Craig Johnson, Judge



                     No. M2003-01010-CCA-R3-CD - Filed April 7, 2005


Following a jury trial, Defendant, Terry Wayne Buckner, was convicted of two counts of sexual
battery. Defendant was sentenced to serve one year in confinement for each offense, with the
sentences to run concurrently with each other. On appeal, Defendant challenges the trial court’s
failure to order alternative sentencing and the trial court’s consideration of enhancement factors
which were not submitted to a jury. After a thorough review, we modify Defendant’s sentence for
each conviction to a sentence of one year of split confinement with three months to be served in
confinement and the balance to be served on probation, with the sentences to run concurrently with
each other.

      Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court Modified

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN
E. GLENN , JJ., joined.

Ralph O. Frazier, Jr., Nashville, Tennessee, (on appeal); and Tony L. Maples, Murfreesboro,
Tennessee, (at trial), for the appellant, Terry Wayne Buckner.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Charles Michael Layne, District Attorney General; and Jason Michael Ponder, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                            OPINION

I. Factual Background

          The victims of the Class E felony offenses were Defendant’s then fourteen-year-old
stepdaughter, J.B., and her fourteen-year-old best friend, B.T. Because the victims are minors, their
initials rather than their full names will be used throughout this opinion.
         One summer afternoon, J.B. and B.T. were at J.B.’s grandparents’ home, which was next
door to where J.B.’s mother and her husband, Defendant, lived. B.T. had argued with her boyfriend
the night before and wanted to meet him to talk. Because the girls knew J.B.’s mother and
grandparents would not allow them to meet B.T.’s boyfriend, the two waited until J.B.’s mother had
left for work, then lied to J.B.’s grandparents, saying they were going to visit a neighbor. J.B.’s
grandparents discovered the girls were not at the neighbor’s, and drove down the road to pick them
up. They saw Defendant on the way back home, and the grandparents told him what had happened.
After a lecture by Defendant and J.B.’s grandparents, Defendant took the girls to the neighbor’s
home so they could apologize to her. In the car, instead of continuing to lecture the girls, Defendant
told them that they “should have come to [him] first” and that if they had, he would have allowed
them to meet B.T.’s boyfriend without J.B.’s mother knowing. Defendant asked J.B. if he could trust
B.T. When she said he could, he offered to allow the girls to do a lot of things they would not
normally be allowed to do, such as go skating or meet boyfriends, and also to buy things for them,
without telling anyone.

        J.B. testified that after Defendant and her mother had been married for about two years,
(when J.B. was twelve years old), Defendant had similarly promised to cover for her. He would
allow J.B. to go to parties, meet a boyfriend, or purchase alcohol for her, and then lie to her mother
on her behalf. In exchange, J.B. had to prove to him that he could trust her not to tell her mom or
“get him into trouble.” In order to prove he could trust her, Defendant would force J.B. to expose
her breasts, model her bras and panties for him, and let him touch her vaginal area and breasts.
Defendant would call this the “trust palette.” J.B. testified that this happened on a daily basis for two
years, but she did not tell anyone. When Defendant asked J.B. if he could trust her friend, B.T., J.B.
believed he was referring to this “trust palette” and whether or not “he could trust her like he trusted
me into letting him do things.”

          When Defendant, J.B., and B.T. returned home from the neighbor’s house, Defendant sent
J.B. outside so he could talk to B.T. alone. B.T. testified that when she was left alone with
Defendant, he promised to let her and J.B. go skating, meet her boyfriend, give her money, or let her
do what she wanted to do without telling anyone. Defendant then told B.T., “[s]o I can trust you,
. . . there is something you have got to do for me.” He turned off the lights, knelt in front of her,
lifted up her shirt, and grabbed her breasts with both hands. She tried to get up, but Defendant
grabbed her arm to prevent her from doing so, apologized, and said he wanted to talk. When B.T.
sat back down, Defendant tried to unbutton her pants, but she got up from the chair.

        Defendant went to get J.B. from outside, and B.T. went next door, where she tried to call her
boyfriend. When Defendant was alone with J.B., he told her to sit next to him and he put his hand
on the inside of her thigh. When she told him she was “on her period,” he reached up and touched
her breasts. At that point, Defendant’s nephew pulled up to the house, and J.B. jumped up and ran
outside to meet him.




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       At trial, Defendant denied ever inappropriately touching either B.T. or J.B. He denied ever
making any sexual comments or talking inappropriately to either girl. He stated that he loved his
step-daughter, J.B., very much and thought they had a good relationship.

        Following a sentencing hearing, Defendant was sentenced to serve two concurrent one-year
sentences as a Range I, standard offender. Defendant was ordered to serve this presumptive one-year
minimum sentence in confinement, at thirty percent. On appeal, Defendant argues that the trial court
erred by: (1) failing to sentence Defendant to alternative sentencing such as probation, (2) failing to
apply judicial diversion when sentencing Defendant, and (3) applying the enhancement factors of
“vulnerability” and “abuse of a position of private trust” without submission of proof of these factors
to a jury.

II. Analysis

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d) (2005). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
       presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
       alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
       [e]vidence and information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
       to make on the defendant’s own behalf about sentencing.

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C,
D or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have



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often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       A court may also consider the mitigating and enhancing factors set forth in Tennessee Code
Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations.
Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
Additionally, a court should consider the defendant’s potential or lack of potential for rehabilitation
when determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5);
Boston, 938 S.W.2d at 438.

        There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d 301,
305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case basis,
tailoring each sentence to that particular defendant based upon the facts of that case and the
circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

        Defendant first argues that the trial court erred by denying alternative sentencing and ordering
Defendant to serve his effective one-year sentence in confinement. A defendant is eligible for
probation if the sentence received by the defendant is eight years or less, subject to some statutory
exclusions. Tenn. Code Ann. § 40-35-303(a). As noted earlier, an especially mitigated 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). A trial
court must presume that a defendant sentenced to eight years or less and for whom incarceration is
not a priority is subject to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn.
Crim. App. 1993). It is further presumed that a sentence other than incarceration would result in
successful rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380. However,
although a defendant may be presumed to be a favorable candidate for alternative sentencing, the
defendant has the burden of establishing suitability for total probation. Tenn. Code Ann. § 40-35-
303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Even though probation must
be automatically considered, “the defendant is not automatically entitled to probation as a matter of
law.” Tenn. Code Ann. § 40-35-303(b), Sentencing Commission Comments; State v. Hartley, 818
S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant seeking full probation bears the burden on
appeal of showing the sentence imposed is improper, and that full probation will be in the best
interest of the defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App.
1997).

         In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of the defendant and the public.
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim.
App. 1995). The defendant’s lack of credibility is also an appropriate consideration and reflects on


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a defendant’s potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999).

        Probation may be denied based solely upon the circumstances surrounding the offense. State
v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995); Hartley, 818 S.W.2d at 374. However,
the circumstances of the offense as committed must be especially violent, horrifying, shocking,
reprehensible, offensive or otherwise of an excessive or exaggerated degree; and the nature of the
offense must outweigh all factors favoring probation. Hartley, 818 S.W.2d at 374-75.

        As noted supra, under the 1989 Sentencing Act, sentences which involve confinement are
to be based on the following considerations contained in Tennessee Code Annotated section 40-35-
103(1):

       (A) [c]onfinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;

       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant.

State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps, 920 S.W.2d 267,
270 (Tenn. Crim. App. 1995). There is nothing in the record to indicate that sections 40-35-
103(1)(A) or (C) apply to Defendant. As to section 40-35-103(1)(B), to determine whether there is
a need for deterrence, the following factors should be considered: (1) whether other incidents of the
charged offense are increasingly present in the community, jurisdiction, or state as a whole; (2)
whether the crime was the result of intentional, knowing, or reckless conduct or was otherwise
motivated by a desire to profit or gain from criminal behavior; (3) whether the alleged offense
received substantial publicity beyond that normally expected in a typical case; (4) whether the
defendant was a member of a criminal enterprise, or substantially encouraged or assisted others in
achieving the criminal objective; and (5) whether the defendant has previously engaged in criminal
conduct of the same type as the offense in question, irrespective of whether such conduct resulted
in previous arrests or convictions. State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000). These factors
serve as a guide, and a court need not find all factors applicable in order to conclude there is a need
for deterrence. Id. at 12. Additional factors may also be considered, provided the court states them
with specificity and they are supported by the proof. Id.

       When imposing Defendant’s sentence, the trial court initially ordered Defendant to serve split
confinement under Tennessee Code Annotated section 40-35-306. Defendant was ordered to serve
five months in the Coffee County Jail, with the balance of the one-year sentence to be served on
probation. As a condition of Defendant’s probation, he was ordered to receive outpatient treatment


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to address the sexual battery convictions and his risk for future similar conduct. In ordering this
sentence, the court stated:

       The Court has carefully considered all probation factors including those located in
       [Tennessee Code Annotated section] 40-35-303. The Court specifically notes that
       the sentence of incarceration shall be reserved for those convicted felons who commit
       the most severe offenses and who possess criminal histories demonstrating a clear
       disregard for the laws and morals of society and those that possess criminal histories
       demonstrating failure of past efforts at rehabilitation. The defendant is presumed by
       law to be a favorable candidate for alternative sentencing. However, under the
       circumstances of this case, in particular a sexual battery against teenage girls placed
       in the trust and care of the defendant, the Court finds under the psychosexual report,
       the defendant’s potential for similar behavior is a moderate to high risk. The court
       finds that confinement is necessary to avoid depreciating the seriousness of the
       offense and is particularly suited to provide an effective deterrent to others likely to
       commit similar offenses. In addition, the nature and circumstances of the criminal
       conduct involved were especially shocking and reprehensible and offensive
       considering the age of the victims and the defendant’s violations of his duties to care
       for the children under his care.

The prosecutor had concerns about this sentence, noting to the trial court that Defendant could not
be ordered to serve more than thirty percent, or three months and eighteen days, of a one-year
sentence if split confinement was ordered. See Tenn. Code Ann. § 40-35-501(a)(3), (c); see also
State v. Steven Michael Ware, No. E2000-01952-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 592,
at *12 (Tenn. Crim. App., at Knoxville, Aug. 7, 2001) (“a trial court may impose a period of up to
one year in the local jail as part of a sentence involving split confinement, but only when the period
of confinement would be completed before the release eligibility date”) (no Tenn. R. App. P. 11
application filed). The trial court agreed and immediately modified the sentence and ordered
Defendant to serve one year in confinement “subject to the law of the State of Tennessee as far as
eligibility for probation and parole.”

         Defendant has not met his burden on appeal of demonstrating that the trial court’s denial of
full probation was improper. The record supports the trial court’s decision to order Defendant to
serve a portion of his sentence in confinement. One of the victims, Defendant’s step-daughter,
testified that Defendant had committed similar acts against her for two years on a daily basis. This
fact alone indicates that incarceration is an appropriate means of deterring Defendant. See State v.
Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000) (“defendant has previously engaged in criminal conduct
of the same type as the offense in question, irrespective of whether such conduct resulted in previous
arrests or convictions”). However, we note that the trial court initially ordered an alternative
sentence of split confinement. We agree that a sentence of split confinement, rather than full
incarceration, is appropriate. The trial court, after realizing that the five-month period of
confinement originally ordered would violate Tennessee Code Annotated section 40-35-501(a)(3)
because it would exceed Defendant’s release eligibility, modified the sentence to a full year in


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confinement (allowing Defendant to be eligible for release after serving thirty percent of this one-
year sentence). We modify the sentence to one year of split confinement, with three months served
in confinement, and the balance on probation. As a condition of Defendant’s probation, Defendant
should receive outpatient treatment to address the sexual battery convictions and his risk for future
similar conduct, as originally ordered by the trial court.

        Defendant argues that the trial court abused its discretion by denying judicial diversion
pursuant to Tennessee Code Annotated section 40-35-313. Judicial diversion is a “legislative
largess” where a defendant, upon being found guilty or pleading guilty, may complete a diversion
program and receive expungement of records and dismissal of the charges. State v. Schindler, 986
S.W.2d 209, 211 (Tenn. 1999). When a defendant contends that the trial court committed error in
refusing to impose a sentence pursuant to Tennessee Code Annotated section 40-35-313, commonly
referred to as “judicial diversion,” this court must determine whether the trial court abused its
discretion in failing to sentence pursuant to the statute. State v. Cutshaw, 967 S.W.2d 332, 344
(Tenn. Crim. App. 1997); State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). Judicial
diversion is similar to pretrial diversion; however, judicial diversion follows a determination of guilt,
and the decision to grant judicial diversion rests with the trial court, not the prosecutor. State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial
court’s denial of judicial diversion, we may not revisit the issue if the record contains any substantial
evidence supporting the trial court’s decision. Cutshaw, 967 S.W.2d at 344; State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996). This Court said in Anderson:

        We conclude that judicial diversion is similar in purpose to pretrial diversion and is
        to be imposed within the discretion of the trial court subject only to the same
        constraints applicable to prosecutors in applying pretrial diversion under Tennessee
        Code Annotated section 40-15-105. Therefore, upon review, if “any substantial
        evidence to support the refusal” exists in the record, we will give the trial court the
        benefit of its discretion. Only an abuse of that discretion will allow us to overturn
        the trial court.

857 S.W.2d at 572 (citation omitted). In the case sub judice, the trial court, having decided
Defendant was not an appropriate candidate for full probation, also denied Defendant’s application
for judicial diversion. We will not disturb this decision on appeal. The trial court did not abuse its
discretion by refusing to consider judicial diversion as an appropriate sentence. This issue is without
merit.

        Finally, Defendant argues that in light of Blakely v. Washington, the trial court erred when
sentencing Defendant by applying two enhancement factors that were not submitted to a jury: (1) a
victim of the offense was particularly vulnerable because of age; and (2) the defendant abused a
position of private trust. 542 U.S. __, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004); see Tenn. Code
Ann. § 40-35-114(5), (16). As a Range I offender convicted of a Class E felony, Defendant is
subject to a sentence of between one and two years. Tenn. Code Ann. § 40-35-112(a)(5). In
calculating the sentence for a Class E felony conviction, the presumptive sentence is the minimum


                                                  -7-
in the range if there are no enhancement or mitigating factors. Id. § 40-35-210(c). If there are
enhancing but no mitigating factors, the trial court may set the sentence above the minimum, but still
within the range. Id. § 40-35-210(d). If both enhancing and mitigating factors are present, the trial
court must start at the presumptive minimum, enhance the sentence within the range as appropriate
for the enhancing factors, and then reduce the sentence as appropriate for the mitigating factors. Id.
§ 40-35-210(e). The Sentencing Order set forth the trial court’s reasoning in assigning the
presumptive one-year minimum sentence for each offense:

       [T]he court does feel that the enhancing factor of the victim being particularly
       vulnerable because of age applies. The Court notes that both victims in this case
       were young teens that were extremely vulnerable because they were under
       supervision of the defendant. In addition, the Court finds as to the victim, [J.B.], that
       the defendant abused a position of public or private trust, because he committed the
       offense against his step-daughter. As to mitigating factors, the Court finds that the
       defendant has no previous criminal history. In addition, the Court finds that the
       defendant’s criminal conduct neither caused nor threatened serious bodily harm.
       Applying these enhancing and mitigating factors and weighing them under Tennessee
       Law, the Court finds that the sentence should be one (1) year on each count, each
       running concurrent with the other, there being no circumstances in this case that
       would require consecutive sentencing.

        The State argues that Defendant has waived any sentencing issues that are impacted by
Blakely. However, because Blakely calls into question certain aspects of our current sentencing
scheme, we will address the merits of Defendant’s challenge to the length of his sentence. In
Blakely v. Washington, 542 U.S. __, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), the United States
Supreme Court, applying the rule in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435,
120 S. Ct. 2348 (2000), struck down a provision of the Washington sentencing guidelines that
permitted a trial judge to impose an “exceptional sentence” upon the finding of certain statutorily
enumerated enhancement factors. Blakely, 124 S. Ct. at 2537. Prior to Blakely, the Apprendi court
had observed “that nothing in [the] history [of the common law] suggests that it is impermissible for
judges to exercise discretion-- taking into consideration various factors relating both to offense and
offender-- in imposing a judgment within the range prescribed by statute.” Apprendi, 530 U.S. at
481, 120 S. Ct. at 2358 (emphasis in original). Thus, the Supreme Court of Tennessee concluded
that under Apprendi, a trial court still retained its discretion to consider applicable enhancement and
mitigating factors so long as the defendant’s sentence is not enhanced beyond the statutory
maximum. Graham v. State, 90 S.W.3d 687, 692 (Tenn. 2002). The Blakely court, however,
clarified that the relevant “statutory maximum” which forms the basis of the Apprendi rule “is not
the maximum sentence a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings.” Blakely, 124 S. Ct. at 2537 (emphasis in original). In other
words, “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
Id. (emphasis in original).



                                                 -8-
        In the case sub judice, the trial court sentenced Defendant to one year for each offense, the
presumptive sentence for a Range I, standard offender, convicted of a Class E felony. The trial court
could have sentenced Defendant to one year absent any enhancing or mitigating factors. Even if the
trial court had found only mitigating and no enhancement factors, the sentence could have been set
at one year, the presumptive sentence. As such, the trial court did not apply enhancement factors to
exceed the “statutory maximum” sentence, and Blakely is not applicable.

         Defendant claims, however, that Blakely requires that he be sentenced as an especially
mitigated offender, rather than a standard, Range I offender. If sentenced as an especially mitigated
offender, Defendant would have either: (1) his sentence reduced by ten percent, or (2) his release
eligibility date reduced to twenty percent of the sentence, or (3) both reductions. Tenn. Code Ann.
§ 40-35-109(b). According to Tennessee Code Annotated section 40-35-109, “the court may find
the defendant is an especially mitigated offender, if: (1) [t]he defendant has no prior felony
convictions; and (2) [t]he court finds mitigating, but no enhancement factors.” § 40-35-109(a)
(emphasis added). Therefore, the finding that Defendant is an especially mitigated offender is
permissive and not required when there is an absence of enhancement factors and mitigating factors
are found to be applicable. Defendant asserts that because Blakely prevents a court from applying
the enhancement factors listed in section 40-35-114 to impose a sentence longer than the
presumptive sentence for a Class E felony without first submitting those enhancement factors to a
jury, Blakely also prevents a court from considering those enhancement factors when deciding
between sentencing a defendant as a standard offender rather than an especially mitigated offender.
Under this reasoning, Defendant argues that because he has no prior felony convictions, the court
did find applicable mitigating factors, and Blakely prevents a court from applying enhancement
factors, he would qualify for sentencing as an especially mitigated offender under section 40-35-109.
In essence, Defendant argues that when no prior criminal record exists, a trial court cannot find a
defendant ineligible for especially mitigated offender status except by violating that defendant’s right
to a jury trial by applying at least one other enhancement factor. We disagree.

         Whether a defendant should be sentenced as an especially mitigated offender under
Tennessee Code Annotated section 40-35-109 is a question which rests within the sound discretion
of the trial court. State v. Blackstock, 19 S.W.3d 200, 211 (Tenn. 2000); State v. Braden, 867
S.W.2d 750, 762 (Tenn. Crim. App. 1993); State v. Buttrey, 756 S.W.2d 718, 722 (Tenn. Crim. App.
1988). The statute states that a court “may find the defendant is an especially mitigated offender.”
§ 40-35-109(a) (emphasis added). The word “may”, when used in a statute or rule, “usually indicates
that the act to which it refers is discretionary, rather than mandatory, and will be so construed unless
the context indicates a different meaning.” Halfacre v. State, 79 S.W. 132, 133 (Tenn. 1904)
(emphasis added); Braden, 867 S.W.2d at 762. If the Tennessee General Assembly had intended for
sentencing within this classification to be mandatory, it would have used the word “shall” as it did
in other provisions of the Tennessee Criminal Sentencing Reform Act of 1989. Braden, 867 S.W.2d
at 762-63; see also Buttrey, 756 S.W.2d at 722. Even where a defendant is eligible for especially
mitigated offender status, he or she will fall within the standard offender status by default. State v.
Linda H. Overholt, No. E2003-01881-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 48, at *42-43
(Tenn. Crim. App., at Knoxville, Jan. 21, 2005).


                                                  -9-
        In State v. Linda H. Overholt, a panel of this Court held that Blakely “holds no sway over
[the] judge-made determination” of whether a defendant should be sentenced as an especially
mitigated offender. Id. at *43. In Overholt, although the trial court did not apply any enhancement
factors, the proof before the court at sentencing showed that defendant had admitted to prior drug
use and to driving a motor vehicle on an expired driver’s license. Id. at *38. When considering
mitigating factors, the trial court found that the defendant had acquired a good employment record
and a reputation for industry and that she took care of needy family members. Id. The court,
however, did not attribute enough weight to the mitigating circumstances to further reduce the
defendant’s sentences below the minimum Range I sentences imposed. Id. The defendant argued
that the trial court violated her right to a jury trial when it declined to sentence her as an especially
mitigated offender. Id. at 35. In affirming the defendant’s sentence, the Court noted that “the
Blakely rule is not linked to eligibility for sentence mitigation; it is tied to a judge finding factual
standards to justify increasing the sentence beyond the ‘maximum’ or presumptive sentence.” Id.
at *42. Because a judge’s actions pursuant to section 50-35-109(a) are purely discretionary, allowing
a judge to decline to award especially mitigated offender status to even an eligible defendant, this
Court saw “no Blakely implications in this sentencing activity.” Id. at *41.

        Likewise, in this case, we find no error in the trial court’s sentencing Defendant as a standard
offender. Blakely does not apply to the determination of mitigated offender status. Defendant is not
entitled to relief on this issue.

                                           CONCLUSION

        For the foregoing reasons, the judgment of the trial court is modified such that Defendant’s
sentence is as follows: Defendant is ordered to serve one year in split confinement for each count
of sexual battery running concurrently with each other. Defendant is ordered to serve three months
in the Coffee County Jail, with the balance of the sentence on probation. As a condition of
probation, Defendant is to receive outpatient treatment to address the sexual battery convictions and
his risk for future conduct.

                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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