         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    April 13, 2004 Session

               STATE OF TENNESSEE v. DARRELL SANDERLIN

                 Direct Appeal from the Circuit Court for Haywood County
                         No. 4900B     Clayburn L. Peeples, Judge



                     No. W2003-01546-CCA-R3-CD - Filed May 27, 2004


The Appellant, Darrell Sanderlin, appeals from the sentencing decision of the Haywood County
Circuit Court. Sanderlin pled guilty to one count of child abuse of his six-year-old son, a class D
felony. Pursuant to a negotiated plea agreement, he was sentenced as a Range I, standard offender,
with the length and manner of service to be determined by the trial court. Following a sentencing
hearing, the trial court imposed a sentence of four years incarceration. On appeal, Sanderlin argues
that the trial court erred by ordering a sentence of total confinement rather than a less restrictive
alternative. After review, the sentencing decision is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and
NORMA MCGEE OGLE, J.J., joined.

David M. Livingston, Brownsville, Tennessee, (on appeal); and David Camp, Jackson, Tennessee,
(at trial), for the Appellant, Darrell Sanderlin.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; Garry Brown, District Attorney General; and Larry Hardister and Elaine
Todd, Assistant District Attorneys General, for the Appellee, State of Tennessee.


                                            OPINION

                                      Factual Background

        On February 26, 2003, the Appellant, a Range I, standard offender, pled guilty to one count
of child abuse, with the length and manner of service to be determined by the trial court.

     The pre-sentence report contains the following information which was prepared by Deputy
Kim Williams with the Haywood County Sheriff’s Department:
                On September 26, 2001, I received information from Lt. Kelvin Evans that
       he had received a phone call from the grandmother of [the victim], stating that [the
       victim’s] father, Darrell Sanderlin, had physically abused him. Upon speaking with
       the grandmother, Investigator Melvin Bonds, and myself went to the residence of Mr.
       Sanderlin’s mother who lives on Dupree Street in Brownsville, Tennessee. Mr.
       Darrell Sanderlin met us at the back door, and after advising him we needed to see
       [the victim] he told us that [the victim] was in Stanton. Mr. Sanderlin advised us he
       would meet us at the sheriff’s department in approximately 15 to 20 minutes with
       [the victim]. Mr. Sanderlin met us within about 10 minutes. . . . We then proceeded
       in telling Mr. Sanderlin that we needed to speak to [the victim] alone. Myself,
       Investigator Bonds and Renae Pullen (DCS) interviewed [the victim]. [The victim]
       was very nervous and would not speak against either his mother or father. When we
       asked to see [the victim’s] back he advised us that his dad had told him not to let us
       look at him without his presence. At this time we did pull [the victim’s] shirt up and
       observed numerous injuries, which covered his back, legs and arms. Some of these
       injuries were scabbed over, and some were whelps. At this time I spoke with Mr.
       Darrell Sanderlin, who advised me that he had disciplined his son as he had been
       disciplined as a child, and he did not think that this was wrong. Mr. Sanderlin did
       not show any remorse at all for the injuries that he had inflicted on his son. Mr.
       Sanderlin did not wish to make any further statements and was charged with
       aggravated child abuse and transported to the Haywood County Jail.

               Later this same date Mrs. Pullen and myself spoke with [the victim’s] mother
       Angela Sanderlin. Mrs. Sanderlin stated to us that her husband had whipped [the
       victim] with switches. She also advised he had whipped him before, and that she had
       asked him not to, but he had done so anyway.

         At the sentencing hearing, Renae Pullen, a case manager with the Department of Children’s
Services, testified that the victim told her that he received a spanking because he had gotten in
trouble at school. Mrs. Pullen’s notes regarding this case were also admitted into evidence. Her
notes reflect that the Appellant also spanked the victim’s one-year-old sister “but that he only popped
her legs.” Moreover, according to Mrs. Pullen, Angela Sanderlin admitted that she too was “abused”
by the Appellant and had left him “more than once[.]” Upon examination by the court, Mrs. Pullen
testified that child abuse was an increasing problem in the county and “we’ve gone from one to one
and half workers to two full-time workers in Haywood County.” Along with the testimony of Kim
Williams and Renae Pullen, the State also introduced the victim’s medical records, which indicated
that “[t]here is evidence of old and new injury suggestive of repeated abuse.”

       The Appellant called four witnesses on his behalf, Bernice Taylor, a counselor at Pathways;
Lakisha Barbee, a social worker with the Carl Perkins Center; Stephanie Lovelace, the home case
manager for the Department of Children’s Services; and Aretha Taylor, the victim’s foster parent.
According to theses witnesses, the Appellant was remorseful for his conduct, the Appellant and his
wife had been involved in parenting counseling, and the Appellant and the victim had a strong bond.


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        The Appellant also testified at the sentencing hearing. He testified that he was gainfully
employed as a brick mason and that he and his wife had been married for eight years. The Appellant
stated, “I realize that it was a little excessive and through parenting and counseling I have learned
a lot about different methods to take as far as punishment and how to deal with behavioral problems
in children.” The Appellant explained that, while he was trying to spank the victim, he was “running
and jumping around the room[,]” which caused the Appellant “to miss angles and miss his buttocks.”

        At the conclusion of the hearing, the trial court sentenced the Appellant to a term of four
years in the Department of Correction. This timely appeal followed.


                                            ANALYSIS

        As his only assignment of error, the Appellant asserts that his sentence “should have been
probated or [he] should have been sentenced alternatively to the community correction program[.]”
When the sentencing court properly considers the relevant sentencing considerations, this court
conducts a de novo review with the presumption that the determinations made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

         Because the Appellant was convicted of a class D felony, he is entitled to the presumption
that he is a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (2003).
We note, however, that “the determination of whether the Appellant is entitled to an alternative
sentence and whether the Appellant is entitled to full probation are different inquiries.” State v.
Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1996). Where a
defendant is entitled to the statutory presumption of alternative sentencing, the State has the burden
of overcoming the presumption of evidence to the contrary. State v. Bingham, 910 S.W.2d 448, 455
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995), overruled on other grounds, State v.
Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). Conversely, the defendant has the burden of establishing his
suitability for full probation, even if the defendant is entitled to the statutory presumption of
alternative sentencing. Id.; see Boggs, 932 S.W.2d at 477.

        When imposing a sentence of total confinement, the trial court should base its decision on
the following considerations:

       (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.


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Tenn. Code Ann. § 40-35-103(1) (2003). Additionally, the potential or lack of potential for
rehabilitation of a defendant should be considered in determining whether he or she should be
granted an alternative sentence. Tenn. Code Ann. § 40-35-103(5).

       In concluding that total confinement was appropriate, the trial court found that:

               I also find that child abuse is an increasing problem in Haywood County. I
       do not find this to be an excessive punishment case. I find this to be the case of a
       vicious criminal attack, one that if it had occurred from a stranger would have
       enraged the community and for some reason there are those who think that crimes
       against people you’re supposed to love should be treated differently than those done
       against a stranger.

                I don’t think that any form of punishment other than confinement can be
       handed out in this case if we are to avoid depreciating the seriousness of this offense.
       I don’t think that less restrictive measures have worked with this Defendant and I do
       feel that the appropriate sentence in this case is four years in the State Penitentiary
       as a Standard Offender.

While we do not discount the trial court’s finding of a need for deterrence in the community, this
finding, we conclude, is overshadowed by the finding that a non-incarcerative sentence would
depreciate the seriousness of the Appellant’s conduct by trivializing the severity of the crime
committed.

       The facts of this case clearly establish that the Appellant’s conduct was reprehensible,
offensive, and of an excessive degree. State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App.
1991). As noted by the trial court,

                I find that even though the charge is child abuse, above and beyond that, this
       child was treated with exceptional cruelty, both emotionally and physically over what
       must have been a prolonged period of time because you couldn’t inflict that many
       injuries in a short period of time. The injuries to this child I find were great. Even
       six days after the fact photographs show bruises, they show welts, they show scars,
       they show open wounds. Those wounds are all over his back, the back of his legs,
       the front of his legs, the sides of his legs. I personally on the exhibit the State
       presented counted over seventy marks. There were injuries on his legs, on the front
       of his legs, literally going up to the line of his underwear at the point where his
       underwear covered his genitals. There were injuries on the back of his arms. All of
       this to a victim who was particularly vulnerable because of his age and also because
       of the custodial parent/child relationship that existed.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996) (permitting use of enhancing
and mitigating factors as relevant to section 40-35-103(1) considerations). Moreover, the victim’s


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medical records indicated signs of prior abuse. The Appellant’s explanation at the sentencing
hearing that he only intended to strike the victim on his buttocks but missed because “he was doing
a lot of running and jumping around the room” was implausible given the extent and severity of the
wounds. The Appellant still failed to comprehend the severity of his actions, as he characterized his
discipline of his son as “a little excessive.”

        Furthermore, measures less restrictive than confinement have frequently or recently been
applied unsuccessfully to the Appellant. Following a single criminal episode, the Appellant was
convicted of five counts of burglary, one count of burglary other than a habitation, two counts of
theft of property between $500 and $1,000, and two counts of theft of property under $500. For
these offenses he was placed on community corrections and probation. Indeed, the pre-sentence
report1 reflects that:

                Defendant was placed on Community Corrections out of Lauderdale County
        Circuit Court on June 19, 1999 for a period of two years. He received a conviction
        in Dyer Circuit Court and was placed on Community Corrections for a period of one
        year to run concurrent with the Lauderdale Convictions. He completed all
        requirements of his behavior contract on February 1, 2000 and was transferred to
        supervised probation. He was discharged from probation on May 24, 2001[.]

       Upon de novo review, we agree with the trial court’s determination that confinement is
necessary to avoid depreciating the seriousness of the offense and that measures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the defendant. The record
amply supports the trial court’s decision in denying all forms of alternative sentencing, including
probation. This issue is without merit.

                                               CONCLUSION

       For the above stated reasons, we affirm the sentencing decision of the Haywood County
Circuit Court, ordering the Appellant to serve his four-year sentence in the Department of
Correction.



                                                              _______________________________________
                                                              DAVID G. HAYES, JUDGE




        1
          The pre-sentence report shall be considered for sentencing purposes by the court. Tenn. Code Ann. § 40-35-
210(b)(2).

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