         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                        Assigned on Briefs at Jackson June 3, 2008

           STATE OF TENNESSEE v. JEREMY LANCE PRZYBYSZ

                     Appeal from the Circuit Court for Sequatchie County
                          No. 4575    Thomas W. Graham, Judge



                    No. M2007-02169-CCA-R3-CD - Filed December 4, 2008


The defendant, Jeremy Lance Przybysz, submitted a best interest guilty plea pursuant to North
Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), to attempt to commit aggravated sexual
battery, a Class C felony. The parties agreed to an eight-year sentence as a Range II offender with
the manner of service to be determined by the court. At the sentencing hearing, the trial court
ordered the defendant to serve eight years in confinement. Claiming the trial court erroneously
denied alternative sentencing, the defendant appeals. We affirm the judgment of the circuit court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which ALAN E. GLENN and D. KELLY
THOMAS, JR., JJ., joined.

Philip A. Condra, District Public Defender, for the appellant, Jeremy Lance Przybysz.

Robert E. Cooper, Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The facts the state recited at the plea hearing reflect that the defendant took substantial steps
to assault a nine-year-old girl who was a playmate of the defendant’s daughter. The victim stated
that the defendant had tried to penetrate her vaginally and anally with his penis and that she had told
him to stop. The presentence report indicated that the victim also performed oral sex on the
defendant. The incident was discovered when the victim was diagnosed with a urinary tract infection
shortly thereafter and she informed medical personnel of the defendant’s conduct. After being
advised of his rights when he came to the police station for questioning, the defendant initially
denied the encounter, but he later admitted that the sexual contact was unplanned. He also admitted
he digitally penetrated the child. He insinuated that he had molested his own child, leading the
Department of Children’s Services to remove his daughter from her parents’ home.
        At the sentencing hearing, the defense called three witnesses. The presentence report was
admitted into evidence. The first witness, Sherry Goodrich, testified that she knew the defendant
and his wife, who was her colleague, friend, and babysitter for her four young daughters. She said
that she had taught her children about offensive touching and that one of her daughters had learned
about that at school. She said that consequently her children would inform her if any offensive
contact had ever occurred. She stated that the defendant had been in her home and that he had been
around her children. She said he never acted inappropriately toward her children, but she also
acknowledged that he had never been alone with them. She said that she was comfortable having
him around her children. She admitted on cross-examination that she did not know the details of the
charge against the defendant or that he had been convicted.

        Samanthia Hatt testified that she had known the defendant and his wife for approximately
seven to eight months. She said she knew the defendant had been accused of a sexual offense and
that she had talked about it with his wife. She stated, however, that she had never discussed it with
the defendant. She said that her sixteen-year-old daughter had been alone with the defendant and
that there had been no indication of any problem. She acknowledged the defendant and her daughter
had been in a “public area” at the time. She stated on cross-examination that although the
defendant’s name would appear on the sexual offender registry, she had no reservations about her
daughter being around him.

        Cassaundra Przybysz, the defendant’s wife, testified that she and the defendant had a six-
year-old daughter together, although she no longer lived with either her or her husband. She stated
that she paid child support for her older son, who lived in Kentucky, and that she did not pay
anything to the relatives taking care of her daughter. She remarked that her husband could not accept
any job offers because of this charge. She stated that once these proceedings ended, she, her
husband, and her daughter could resume life as a “happy family.” She said that her daughter was
“daddy’s girl” and that she missed her father. In response to the court’s inquiry about where her
daughter lived, she explained that as she had been arrested for failure to pay child support owed in
Kentucky two days after her husband’s arrest, her daughter lived with her husband’s sister and
brother-in-law. She said her husband had been “pushing . . . away” both her and her daughter since
the incident, and she thought he would comport himself in the future in such a way as to avoid any
suspicion of impropriety.

        On cross-examination, Ms. Przybysz testified that her husband had been ordered not to live
with their daughter and not to visit her without supervision. She stated that if she had not placed her
daughter with her relatives, the Department of Children’s Services would have taken her away from
them. She claimed that her husband supported himself since the incident on odd jobs and one
month’s work for a trucking company. She said her husband had no physical condition that would
prevent him from working. She stated that she and her husband no longer lived together, although
they were still married.

        After the State introduced the presentence report into evidence, defense counsel questioned
its author, Jennifer Simons, about its contents. She testified that she currently wrote presentence


                                                 -2-
reports in five counties. She said she included a nurse advocate’s statement in the report as the
victim’s statement. She stated that she had satisfied her responsibilities for writing the report as an
answer to defense counsel’s claim that probation officers have large case loads. She also said the
defendant had not expressed remorse to her regarding the incident.

       The presentence report shows that the defendant had been employed as a day laborer by his
brother-in-law and as a driver by several trucking companies but that he had quit several jobs,
consistently did not show up to work for his relative, and could not be rehired by a trucking company
because he owed the company money.

        The presentence report also reflects the defendant’s prior record. He pleaded guilty in 2000
to shoplifting in Kentucky and received a ninety-day suspended sentence and restitution, along with
the condition that he not have any theft charges during the next two years. In Tennessee, he
successfully completed judicial diversion for theft of property valued between $1000 and $10,000
after being on supervised probation for two years and paying restitution.

       Based upon this evidence, the trial court found that “this case is controlled by sentencing
considerations” and that confinement was necessary to avoid depreciating the seriousness of the
offense. The court stated the facts of the case showed penetration and lack of consent. The court
found that a rape had occurred although it was not the convicting offense, and the court imposed an
eight-year sentence in the Department of Correction.

        The defendant claims he should have been granted an alternative sentence instead of
incarceration. He argues that he did not meet the criteria listed in Tennessee Code Annotated section
40-35-102(5) (2006) for offenders meriting incarceration and that the trial court did not state its
findings on the record as required by State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). He requests that this court either remand the case for resentencing or modify the judgment
to provide for alternative sentencing.

       The State responds that the sentence is proper. It notes that the defendant is not required to
be considered as a candidate for alternative sentencing as a Range II offender. See T.C.A. § 40-35-
102(6). It also notes that the trial court found incarceration was necessary to avoid depreciating the
seriousness of the offense, which actually involved rape. It asserts that the evidence does not
otherwise show that the defendant is a good candidate for rehabilitation.

        Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. T.C.A. § 40-35-401(d) (2006). This presumption of correctness
is conditioned upon the affirmative showing that the trial court considered the relevant facts,
circumstances, and sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As
the Sentencing Commission Comments to section 40-35-401(d) note, the burden is now on the
appealing party to show that the sentence is improper.




                                                 -3-
        When determining if confinement is appropriate, the trial court should consider whether (1)
confinement is necessary to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is necessary to avoid depreciating the seriousness of the offense
or confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) measures less restrictive than confinement have frequently or recently been
applied unsuccessfully to the defendant. T.C.A. § 40-35-103(1)(A)-(C) (2006). The trial court may
also consider a defendant’s potential or lack of potential for rehabilitation and the mitigating and
enhancement factors set forth in Tennessee Code Annotated sections 40-35-113 and -114. T.C.A.
§§ 40-35-103(5) (2006), -210(b)(5) (2006); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App.
1996). The sentence imposed should be the least severe measure necessary to achieve the purpose
for which the sentence is imposed. T.C.A. § 40-35-103(4). If a defendant is an especially mitigated
or standard offender convicted of a Class C, D, or E felony, he or she should be considered as a
favorable candidate for alternative sentencing in the absence of evidence to the contrary. T.C.A. §
40-35-102(6) (2006).

       In the case at bar, the defendant did not demonstrate that confinement was improper. At the
sentencing hearing, the defendant did not testify. The presentence report included the defendant’s
admission of sexual contact and penetration, as well as the statements of the Children’s Advocacy
Center on behalf of the victim. Although the defendant pleaded to a class C felony, he could not be
considered a favorable candidate for alternative sentencing because he was a Range II offender.

        Additionally, the defendant’s argument that the trial court must state its findings before
denying probation does not aid the defendant, as the record of his case includes evidence showing
that confinement is necessary to avoid depreciating the seriousness of the offense, as State v. Dowdy,
894 S.W.2d at 305, requires. The trial court stated that the facts of the case as contained in the
presentence report and presented at the sentencing hearing showed a serious offense that required
confinement to avoid diminishing the severity of the offense. In this regard, the defendant was
shown to have committed an aggravated rape, a Class A felony.

        Furthermore, we agree with the State that the defendant’s lack of potential for rehabilitation
precludes alternative sentencing. See T.C.A. § 40-35-103(5) (2006). Although he admitted his
inappropriate sexual contact to the police, he did not express remorse for his actions either to family
members, friends, or to probation officers. By submitting an Alford plea, he also did not personally
acknowledge his guilt. This court has held that “even when a defendant enters an Alford plea, the
court is not prohibited from considering the defendant’s failure to accept responsibility for his
criminal conduct as it relates to his rehabilitation potential.” State v. Homer L. Evans, No. E2000-
00069-CCA-R3-CD, Campbell County, slip. op. at 5 (Tenn. Crim. App. Mar. 20, 2001) (citation
omitted).




                                                 -4-
       The trial court did not err in imposing confinement for this offense. Based on the foregoing
and the record as a whole, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      JOSEPH M. TIPTON, PRESIDING JUDGE




                                                -5-
