             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                           DECEMBER 1997 SESSION
                                                            May 21, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                )    No. 01C01-9701-CC-00034
                                   )
      Appellee                     )
                                   )    MARSHALL COUNTY
V.                                 )
                                   )    HON. CHARLES LEE,
WILBERT HELLER,                    )    JUDGE
                                   )
      Appellant.                   )    (Sentencing)
                                   )
                                   )


For the Appellant:                      For the Appellee:

Robert Lee Marlow                       John Knox Walkup
Thomas A. Davidson                      Attorney General and Reporter
107-C West Commerce Street
Lewisburg, TN 37091                     Karen M. Yacuzzo
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493


                                        W. Michael McCown
                                        District Attorney General

                                        Weakley E. Barnard
                                        Assistant District Attorney
                                        Marshall County Courthouse
                                        Lewisburg, TN 37091



OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                        OPINION


      The appellant, Wilbert Heller, appeals as of right the sentence he received in

the Marshall County Circuit Court upon his plea of guilty to the offense of aggravated

sexual battery. The trial court sentenced appellant to nine years, six months in the

Department of Correction as a Range I offender. Appellant’s only issue on appeal is

whether he is eligible for community corrections under the special needs provision.

See Tenn. Code Ann. §40-36-106(c) (1990). We affirm the judgment of the trial court.

      Appellant was indicted for a 1992 aggravated sexual battery and a 1996

attempted aggravated sexual battery of his adopted daughter. After admitting to

numerous instances of sexual contact with the victim, he pled guilty on July 3, 1996 to

the aggravated sexual battery charge. Pursuant to a plea agreement, the remaining

charge was dismissed, but there was no agreement as to his sentence. At a

subsequent sentencing hearing, the trial court sentenced appellant to serve nine

years, six months in the Department of Correction. It denied appellant’s request for

community corrections, stating that appellant was an ineligible offender.

       When a defendant challenges the length, range, or manner of service of a

sentence, we must conduct a de novo review of the record. Tenn. Code Ann. §40-35-

401(d) (1990). The sentence imposed by the trial court is accompanied by a

presumption of correctness and the appealing party carries the burden of showing that

the sentence is improper. Tenn. Code Ann. §40-35-401 Sentencing Commission

Comments. The presumption, however, is conditioned upon an 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).

Because, in this case, the trial court carefully considered the mandates of the

Community Corrections Act and applicable law, we accord its judgment the

presumption of correctness.




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       Appellant concedes that he is ineligible for community corrections under the

minimum criteria set forth in Tennessee Code Annotated section 40-36-106(a). As a

sexual offender, appellant committed a crime against a person, which prohibits his

placement in such a program. Tenn. Code Ann. §40-36-106(a)(2) (1990).

       Nevertheless, appellant argues that he is eligible for community corrections

under the special needs provision. Tenn. Code Ann. §40-36-106(c) (Supp. 1990).

That section provides:

       Felony offenders not otherwise eligible under subsection (a), and who
       would be usually considered unfit for probation due to histories of
       chronic alcohol, drug abuse, or mental health problems, but whose
       special needs are treatable and could be served best in the community
       rather than in a correctional institution, may be considered eligible for
       punishment in the community under the provisions of this chapter.

Appellant contends that he qualifies for two reasons: (1) because the legislature has

recognized that sexual offenders are mentally ill and in need of treatment; and (2)

because expert testimony at the sentencing hearing demonstrated that a program

could be developed for his treatment.

       The trial court considered these arguments at the sentencing hearing, but

determined that applicable case law interpreting the special needs subsection

prohibited appellant’s eligibility. We agree. This Court has held on numerous

occasions that in order to be eligible for community corrections sentencing under

subsection (c), the offender must be statutorily eligible for probation. See e.g., State

v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996); State v. Staten, 787 S.W.2d

934, 936 (Tenn. Crim. App. 1989); State v. Anand Franklin, No. 01C01-9603-CR-

00101 (Tenn. Crim. App. at Nashville, August 15, 1997), perm. app. denied (Tenn.

1998); State v. Ronald Wayne Strickland, No. 02C01-9608-CC-00290 (Tenn. Crim.

App. at Jackson, July 24, 1997); State v. Reginald Bonner, No. 02C01-9507-CR-

00191 (Tenn. Crim. App. at Jackson, August 28, 1996); State v. Lanny Crowe, No.

01C01-9503-CC-00064 (Tenn. Crim. App. at Nashville, July 6, 1995); State v. Scotty

G. Kilgore, 03C01-9408-CR-00278 (Tenn. Crim. App. at Nashville, June 13, 1995);


                                            3
State v. Timothy Blackburn, No. 02C01-9111-CC-00253 (Tenn. Crim. App. at Jackson,

June 30, 1993), perm. app. denied (Tenn. 1993); State v. Robert Wilson, Alias Tiny,

No. 03C01-9209-CR-00305 (Tenn. Crim. App. at Knoxville, March 22, 1993).

Appellant is statutorily ineligible for probation because his sentence is greater than

eight years and he was convicted of aggravated sexual battery. Tenn. Code Ann.

§40-35-303(a) (Supp. 1992). As a result, appellant fails to qualify under the special

needs provision.1

        We are also unpersuaded by appellant’s argument that the enactment of

statutes mandating the standardized treatment of all sex offenders modifies our

pervious holdings or otherwise influences his eligibility for community corrections. See

Tenn. Code Ann. §§39-13-701 - 709 (Supp. 1995). Those statutes establish a

comprehensive system of evaluation, identification, treatment, and continued

monitoring of all sex offenders within the criminal justice system whether they are in

the department of correction, in community corrections, on probation, or on parole.

See Tenn. Code Ann. §§39-13-702(a), 706 (Supp. 1995). One of its specific

requirements is that all sex offenders be evaluated “for risk to victims or potential

victims, identification, amenability to treatment, and behavior management” and

requires that the trial court consider that evaluation in determining the sentence.

Tenn. Code Ann. §39-13-705 (Supp. 1995). However, nothing in the plain language

of the statute changes a sexual offender’s eligibility for community corrections under

existing law.

        Our review of the record supports the trial court’s determination that appellant is

not eligible for community corrections under the minimum statutory criteria, nor under

the special needs provision of that statute. Accordingly, we affirm appellant’s

sentence of nine years, six months in the Department of Correction.


        1
          In view of our above conclusion, it is unnecessary for us to determine whether appellant
factually satisfies the requirements for the special needs provision. Therefore, we do not address
appellant’s argument that he qualifies under the special needs provision because the legislature has
classified all sex offenders as “mentally ill persons.” See Tenn . Code A nn. §33- 6-302 (1 984).

                                                   4
                                                         _______________________________
                                                         WILLIAM M. BARKER, JUDGE


CONCUR:



   (Not Participating) **
JOE B. JONES, JUDGE




DAVID H. WELLES, JUDGE




        **
         Judge Jones died on May 1, 1998, following a distinguished career as a trial attorney and as a
respected member of this Court since his appointment in November 1986. He will be greatly missed.

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