        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 28, 2011

           STATE OF TENNESSEE v. JACKIE DARRELL MESSER

                Direct Appeal from the Circuit Court for Cocke County
                         No. 1729 Ben W. Hopper, II, Judge


                No. E2011-00156-CCA-R3-CD - Filed December 5, 2011


The Defendant-Appellant, Jackie Darrell Messer, was indicted by the Cocke County Grand
Jury for rape of a child, a Class A felony. He subsequently entered a guilty plea as a Range
I, standard offender to the offense of attempted sexual battery by an authority figure, a Class
D felony, with the length and manner of service of the sentence to be determined by the trial
court. Following a sentencing hearing, the court imposed a sentence of four years in the
Tennessee Department of Corrections. On appeal, Messer argues that the trial court erred
in denying his request for an alternative sentence. Upon review, we affirm the trial court’s
judgment.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and D. K ELLY T HOMAS, J R., JJ., joined.

Edward C. Miller, District Public Defender; Keith E. Haas, Assistant Public Defender,
Newport, Tennessee, for the Defendant-Appellant, Jackie Darrell Messer.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James B. Dunn, District Attorney General; and Tonya D. Thornton, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

      Guilty Plea Hearing. At the guilty plea hearing on October 26, 2010, the trial court
advised Messer of his rights. Messer, age fifty, then informed the court that he was freely
and voluntarily entering a guilty plea to the offense of attempted sexual battery by an
authority figure. The prosecutor summarized the facts in this case:

       The State’s proof would have been, on May 31st [sic], 2009, at some point in
       the morning[,] Mr. Messer was left alone in a bedroom with his girlfriend’s,
       I believe, three-year-old child at the time, Your Honor. Later that evening, the
       child told the mother that while they were alone that Mr. Messer had touched
       her on her vaginal area, that she was hurting down there. The mother then
       took her to the doctor and called the detectives, and the detectives went and
       spoke with Mr. Messer.

              He came to the Sheriff’s Department, and we had a prior hearing on
       this, Your Honor, so you heard all of those details previously. But the gist of
       [Messer’s] statement [was] that he was left alone with the child, that they were
       laying [sic] on the bed, and when he reached over and touched her on her
       vaginal area, it lasted only a few seconds, he realized it was wrong and he
       stopped and he got up and left the bedroom. He had told . . . the mother[]
       previously that he should not be left alone with her children for her protection
       and – for their protection and his own.

              ....

             He had previously – he told the mother – it says, I had told [her] I
       should not be left alone with her kids. I told her this for her protection and
       mine. Other than this one time, I have never been left alone with her children.

The prosecutor informed the court that Messer had initially been charged with rape of a child
and was entering a plea of guilt to attempted sexual battery by an authority figure. She added
that the trial court denied Messer’s motion to suppress the statement he gave to law
enforcement regarding this case.

       Sentencing Hearing. At the sentencing hearing on January 5, 2011, the State entered
the presentence investigation report and Messer’s statement to law enforcement into
evidence. The prosecutor informed the court that Messer had admitted to touching the
victim’s vagina in his written statement. She stated that the district attorney’s office made
Messer the offer contained in the plea bargain agreement because of the difficulty of trying
the case with such a young victim.

      The prosecutor, noting that Messer had previously been granted diversion on twenty-
one counts of sexual exploitation of a minor, opined that Messer had “a problem with small

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children.” She added that Messer had told his girlfriend, the victim’s mother, “not to let him
be around her children, which was for their protection as well as his.” The prosecutor argued
that, based on the “seriousness of the original charge, the age of the child, and the prior
record of Mr. Messer[,]” a sentence of four years in the Tennessee Department of Correction
was appropriate.

        Defense counsel stated that Messer had abided by all the terms of judicial diversion
for the charges regarding sexual exploitation of a minor, but he acknowledged that Messer
had not requested that the case be expunged from his record at the end of the diversion
period. Defense counsel contended that Messer was considered a favorable candidate for
alternative sentencing pursuant to Tennessee Code Annotated section 40-35-102(6) (2006).

       Messer then made the following statement to the trial court:

             Your Honor, I would like to add that I no longer am around Cocke
       County at all. I live in Tazewell. I have a really good job in Kentucky. Next
       month I’m up for a raise.

               I have literally no contact with anyone. I live back in the . . . woods in
       an area called Cedar Gorge, and I live with a woman who, she put her home
       up . . . as collateral to get me out on bond. And that’s my main reason for
       asking this Court for probation, because if I don’t . . . pay those payments on
       the bond, she loses her home.

              And now I have another reason, another obligation, the financial. I
       have child support of four hundred and fifty dollars a month that I pay [the
       victim’s mother for a child they had together]. She . . . should get her check
       out today. I don’t think it’s arrived yet, but the financial responsibilities that
       I’ve got because of this, I can – I can take [care] of. And – and being away
       from everyone, I can take care of that and complete . . . anything that . . . you
       so order. Thank you.

       Jaime Hance, Messer’s sister, testified that Messer helped raise her. She stated that
Messer “doesn’t come to Cocke County because he doesn’t want to put himself in a position
to be around [the victim] or to be doing something that he doesn’t need to be doing.” She
added that Messer has kept his distance from family and friends since the incident.

       At the conclusion of the sentencing hearing, the trial court imposed a four-year
sentence of incarceration. Messer filed a timely notice of appeal.



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                                         ANALYSIS

        Messer argues only that the trial court erred in denying him alternative sentencing.
In response, the State contends that Messer has failed to show that he is entitled to relief and
that the trial court considered the relevant factors before denying the alternative sentence.
We agree with the State.

        On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action 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 defendant has the burden of showing the
impropriety of the sentence. T.C.A. § 40-35-401(d) (2006), Sentencing Comm’n Comments.
This means that if the trial court followed the statutory sentencing procedure, made adequate
findings of fact that are supported by the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, this court “may not disturb the sentence even if we would have preferred a different
result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Because the trial
court in this case properly considered the sentencing principles and all relevant facts and
circumstances, our review is de novo with a presumption of correctness. See Ashby, 823
S.W.2d at 169.

       A trial court, when sentencing a defendant, must consider the following:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;

       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and



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       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

T.C.A. § 40-35-210(b) (2006); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002);
State v. Osborne, 251 S.W.3d 1, 24 (Tenn. Crim. App. 2007).

       Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated
section 40-35-102(5) (2003) gives courts guidance regarding the types of individuals who
should be required to serve their sentence in confinement:

              In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the laws
       and morals of society, and evincing failure of past efforts at rehabilitation shall
       be given first priority regarding sentencing involving incarceration[.]

        Messer argues that he is presumed to be a favorable candidate for alternative
sentencing. However, under Tennessee Code Annotated section 40-35-102(6) (2006), a
defendant who does not require confinement under subsection (5) and “who is an especially
mitigated or standard offender convicted of a Class C, D, or E felony, should be considered
as a favorable candidate for alternative sentencing options in the absence of evidence to the
contrary[.]” T.C.A. § 40-35-102(6) (2006) (emphasis added). A trial court, when imposing
a sentence of total confinement, should base its decision on the following factors:

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

       (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 similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Id. § 40-35-103(1)(A)-(C) (2006); see also Ashby, 823 S.W.2d at 169.

        We initially note that the trial court’s determination of whether the defendant is
entitled to an alternative sentence and whether the defendant is a suitable candidate for full
probation are different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d

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467, 477 (Tenn. Crim. App. 1996). Where a defendant is considered a favorable candidate
for alternative sentencing, the State has the burden of presenting evidence to the contrary.
See State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, the defendant has the
burden of establishing suitability for full probation, even if the defendant is considered a
favorable candidate for alternative sentencing. See id. (citing T.C.A. § 40-35-303(b)).

        Messer argues that the State failed to carry its burden of presenting evidence that he
was not a favorable candidate for alternative sentencing. He specifically asserts that the State
presented no witnesses and no proof to rebut the mitigating factors filed by him. We
acknowledge that, because Messer was considered a favorable candidate for alternative
sentencing, the State had the burden of presenting evidence to the contrary. See T.C.A. § 40-
35-102(6) (2006). A review of the record shows that although the State did not present
witnesses, it did enter the presentence investigation report and Messer’s written statement
to law enforcement into evidence. Moreover, it argued that confinement was necessary in
this case because of the “seriousness of the original charge, the age of the child, and the prior
record of Mr. Messer[.]” We conclude that the State satisfied its burden. See id. § 40-35-
102(6)(D) (stating that a trial court “shall consider, but is not bound by, the advisory
sentencing guideline” in section 40-35-102(6)(A)).

        We acknowledge that Messer was eligible for probation because his potential sentence
was ten years or less and the offense for which he was sentenced was not specifically
excluded by statute. Id. § 40-35-303(a) (2006). Here, Messer was facing a sentence of two
to four years because he entered a guilty plea as a Range I, standard offender to the offense
of attempted sexual battery by an authority figure. Id. §§ 39-12-101, 39-13-527,
39-12-107(a) , 40-35-112(a)(4) (2006). A trial court shall automatically consider probation
as a sentencing alternative for eligible defendants. Id. § 40-35-303(b) (2006). However, “the
defendant is not automatically entitled to probation as a matter of law.” Id. § 40-35-303(b)
(2006), Sentencing Comm’n Comments. Rather, the defendant must demonstrate that
probation would serve the ends of justice and the best interests of both the public and the
defendant. See State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citation
omitted).

       When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, his present condition, including physical and mental condition, the
deterrent effect on the defendant, and the best interests of the defendant and the public. See
State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568
S.W.2d 285 (Tenn. 1978)). In addition, the principles of sentencing require the sentence to
be “no greater than that deserved for the offense committed” and “the least severe measure

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necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-
103(2), (4) (2006). The court should also consider the potential for rehabilitation or
treatment of the defendant in determining the appropriate sentence. See id. § 40-35-103(5)
(2006).

       At the conclusion of the sentencing hearing, the trial court applied the enhancement
factor that “[t]he defendant ha[d] a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range[.]” Id. § 40-35-
114(1) (2006). The court explained the application of this particular factor:

               [W]e have a [defendant with] a past with criminal behavior which is
       found in this Court’s records in Case No. 9438, which was dealt with back in
       probably November of 2004. I forget how many separate counts there were,
       twenty, twenty-one or so, charging him with engaging in the possession of
       material showing minors involved in sexual activity or simulated sexual
       activity that was patently offensive, which is really a – it’s almost a separate
       and distinct category, and it’s recognized in our laws as being a separate and
       distinct type of an offense.

The court found that Messer had a lack of potential for rehabilitation, given that he had
previously received judicial diversion for twenty-one counts of sexual exploitation of a
minor. Given Messer’s prior offenses involving children, we conclude that the trial court’s
finding that Messer was a poor candidate for rehabilitation was proper.

        The trial court also found that confinement was “necessary to protect society by
restraining a defendant who has a long history of criminal conduct” and confinement was
“necessary to avoid depreciating the seriousness of the offense[.]” Id. § 40-35-103(1)(A),
(B) (2006). Regarding the need to protect society from the defendant, the court determined
that the fact that Messer distanced himself from family and friends seemed to be “almost an
admission that [Messer was] not capable of being around young children.”

        Regarding the seriousness of the offense, the trial court described the offense in this
case as “impermissible, intolerable.” The court added: “[I]t’s a bad crime. It’s one that I feel
incarceration is necessary to protect possibly other young girls [from Messer]. It is necessary
to avoid [depreciating] the seriousness of this offense.” When considering whether measures
less restrictive than confinement had frequently or recently been applied unsuccessfully to
the defendant pursuant to section 40-35-103(1)(C) (2006), the court noted that although
Messer did not violate the terms of his judicial diversion regarding the twenty- one counts
of sexual exploitation of a minor, the alternative sentence in that case did not prevent Messer
from committing the offense against the minor victim in this case.

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        Messer contends that the offense to which he pleaded guilty was not so serious that
he should be required to serve his sentence in incarceration. However, a review of the record
shows that the trial court’s denial of an alternative sentence was proper given the gravity of
the offense. A trial court may rely solely on the seriousness of the offense in denying an
alternative sentence when the circumstances of the offense are “especially violent, horrifying,
shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree” and
the nature of the offense outweighs all the factors favoring an alternative sentence. State v.
Bottoms, 87 S.W.3d 95, 103 (Tenn. Crim. App. 2001) (internal quotations and citations
omitted); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991); State v. Travis,
622 S.W.2d 529, 534 (Tenn. 1981). Messer also argues that the trial court improperly
considered the seriousness of the initial charge in sentencing the defendant. The State
contends, and we agree, that a trial court may look behind a plea agreement to consider the
proof of the actual crime committed. See State v. Biggs, 769 S.W.2d 506, 507-08 (Tenn.
Crim. App. 1988) (stating that “[i]n considering the circumstances of the offense, the court
may go beyond the negotiated plea and consider the true nature of the crime”) (internal
quotation omitted); State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983) (holding that
it is “proper for a trial court to look behind the plea bargain and consider the true nature of
the offenses committed”).

        Here, the trial court properly considered the fact that Messer entered a guilty plea to
attempted sexual battery by an authority figure, a Class D felony, but was originally charged
with rape of a child, a Class A felony, which carries a sentence of fifteen to twenty-five years
for a Range I, standard offender. See T.C.A. §§ 39-13-522, 40-35-112(a)(1) (2006). The
State explained that it made Messer the offer contained in the plea agreement because of the
difficulty of trying a case with a victim so young. However, the evidence, including
Messer’s confession, showed that he had touched the victim’s vaginal area. Accordingly, we
conclude that the trial court, in denying an alternative sentence in this case, properly
considered the especially reprehensible nature of the offense and the fact that Messer entered
a guilty plea to a substantially lesser crime.

        Messer also argues that the trial court erred in stating during the sentencing hearing
that it did not believe there was a “cure” for Messer’s behavior and that there was “no way
for [defendants like Messer] to be deterred other than by punishment by incarceration.”
Messer contends that these comments equate to the trial court improperly using information
outside the record in sentencing. See State v. James Allen Bailey, No. E2001-02443-CCA-
R3-CD, 2002 WL 2012652 (Tenn. Crim. App., at Knoxville, Aug. 28, 2002). In James Allen
Bailey, this court held that the trial court’s sentencing decision was not entitled to a
presumption of correctness because the court independently and improperly researched
pyromania before determining that the defendant’s “condition was untreatable” and

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sentencing him to fifteen years of incarceration and five years of probation. Id. at *2. We
agree that a trial court may not base its sentencing decision on matters outside the record.
However, the equivocal statements made by the court, when considered within the context
of its findings regarding Messer’s prior criminal activity and lack of potential for
rehabilitation, do not negate the presumption of correctness afforded to its sentencing
decision.

       The record shows that the trial court considered the purposes and principles of the
sentencing act in this case. The court properly relied on the need to protect society and the
seriousness of the offense in denying alternative sentencing. See T.C.A. § 40-35-103(1)(A),
(B) (2006). Accordingly, we conclude that the record supports the trial court’s denial of an
alternative sentence in this case. We further conclude that Messer failed to establish his
suitability for full probation.

                                     CONCLUSION

       Upon review of the record, we affirm the trial court’s judgment.


                                                   ___________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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