        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs May 16, 2012 at Knoxville

              STATE OF TENNESSEE v. ROY DALE HARRELL

                  Appeal from the Circuit Court for Franklin County
                        No. 19171     J. Curtis Smith, Judge


                 No. M2011-02268-CCA-R3-CD - Filed June 26, 2012


The defendant, Roy Dale Harrell, pled guilty in the Franklin County Circuit Court to one
count of statutory rape, a Class E felony. After a sentencing hearing, he was sentenced to
two years split confinement, to serve eleven months and twenty-nine days in jail and the
remainder on probation. On appeal, he challenges the trial court’s imposition of a sentence
of split confinement that required service of eleven months and twenty-nine days. After
review, we affirm the trial court’s imposition of a split confinement sentence. However, we
modify the judgment of the trial court to the extent it imposed an eleven-month-and-
twenty-nine-day period of incarceration and remand for entry of an amended judgment
showing the defendant's period of incarceration at 7.2 months.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
N ORMA M CG EE O GLE, JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, Roy Dale Harrell.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; J.
Michael Taylor, District Attorney General; and William B. Copeland, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       The defendant was indicted on four counts of rape, one count of aggravated sexual
battery, three counts of sexual battery, and one count of rape of a child, as a result of his
sexual encounters with his thirteen-year-old cousin, “L.A.,”1 who lived in the defendant’s
and his parents’ home. He pled guilty to a reduced charge of statutory rape, and the other
charges were dismissed. The following facts were recounted in the trial court’s sentencing
memorandum:

              The pre-sentence report and the plea proceeding establish the nature of
       [the] defendant’s criminal conduct. The victim, [L.A.], was 13 years old on
       December 8, 2009, when she revealed [the defendant] had sexually abused her
       multiple times. [L.A.] and her sister [B.S.] had been living with her aunt and
       uncle, Karen and Dale Harrell, who are [the defendant]’s parents. He resided
       with his parents in the same home where the two sisters lived.

              [The defendant] entered the victim’s room late at night multiple times
       and digitally penetrated her. During some of the incidents [the] [d]efendant
       forced [L.A.] to touch his penis. [L.A.]’s older sister testified she had a similar
       experience while she resided in the Harrell home and left the home one month
       after her 18th birthday. She told Karen and Dale Harrell their son was
       sexually abusing her hoping her younger sister would not also be abused.
       After the victim told her older sister about the on-going abuse they both told
       Karen and Dale Harrell. The Harrells confronted their son who denied the
       allegations. The abuse last happened a few days prior to the meeting with
       investigators. The proof is unclear whether any abuse occurred after [the
       defendant] was confronted by his parents.

               At the time of the sentencing hearing on July 12, 2011, the victim was
       15 years old. The last abuse had occurred in November or early December of
       2009. [L.A.] still relives the abuse and is afraid to go to bed alone. She is
       afraid to trust others.

              [The] [d]efendant is 22 years old, unmarried, and was 20 years old in
       late 2009 when [L.A.] reported the abuse. He has a reasonably good job
       history and has worked for Deutsch Industries since January 26, 2011. [The]
       [d]efendant presented no proof at the sentencing hearing but exercised his
       right of alloc[u]tion.

       L.A. and her older sister, B.S., both testified at the sentencing hearing. L.A.
explained how she came to live with the defendant’s parents and how the abuse affected her.
B.S. testified that her sister confided in her about what the defendant had been doing to her

       1
           It is the policy of this court to refer to minor victims of sexual assault by their initials only.

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and said that the defendant had previously molested her as well. B.S. also testified
concerning how the abuse affected her. The defendant made a brief statement of allocution
in which he said that he “wanted to apologize [for] everything that happened” and said that
he had a “good job” and that “everything’s going good.”

       After the conclusion of the hearing, the trial court sentenced the defendant to two
years of split confinement with eleven months and twenty-nine days in the Franklin County
Jail and the remainder on state probation.

                                        ANALYSIS

       On appeal, the defendant challenges the trial court’s imposition of a sentence of split
confinement that required eleven months and twenty-nine days incarceration because it
resulted in a longer sentence than if he had been given a determinate sentence of two years.
The defendant seemingly also suggests that the trial court should have considered other
sentencing alternatives.

       When an accused challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record “with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d). This presumption 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 presumption does
not apply to the legal conclusions reached by the trial court in sentencing the accused or to
the determinations made by the trial court which are predicated upon uncontroverted facts.
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d
922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim.
App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

       In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)
the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)
any statistical information provided by the administrative office of the courts as to Tennessee
sentencing practices for similar offenses; (h) any statements made by the accused in his own
behalf; and (i) the accused’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim.
App. 2001). The party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Cmts.; Ashby, 823 S.W.2d at 169.

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        Under the revised Tennessee sentencing statutes, a defendant is no longer presumed
to be a favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347
(Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory” sentencing
guidelines provide that a defendant “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.” Tenn. Code Ann.
§ 40-35-102(6).

       A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant is
not, however, automatically entitled to probation as a matter of law. The burden is upon the
defendant to show that he is a suitable candidate for probation. Id. § 40-35-303(b); State v.
Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467,
477 (Tenn. Crim. App. 1996). In order to meet this burden, the defendant “must
demonstrate that probation will ‘subserve the ends of justice and the best interest of both the
public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.
1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a
case-by-case analysis. Id. Factors to be considered include the circumstances surrounding
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.
Goode, 956 S.W.2d at 527. Another appropriate factor for a trial court to consider in
determining whether to grant probation is a defendant’s credibility or lack thereof, as this
reflects on the defendant’s potential for rehabilitation. Id. Also relevant is whether a
sentence of probation would unduly depreciate the seriousness of the offense. See State v.
Davis, 940 S.W.2d 558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.

      In determining if incarceration is appropriate in a given case, a trial court should
consider whether:

       (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

                                              -4-
       been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant’s potential for rehabilitation
or lack thereof should be examined when determining whether an alternative sentence is
appropriate. Id. § 40-35-103(5).

       In addressing the length of the defendant’s sentence, the trial court found that a two-
year sentence was appropriate because the defendant had a previous history of criminal
behavior in that he committed numerous sexual offenses against the victim and her sister
which were not included under the charge to which he pled guilty, see Tenn. Code Ann. §
40-35-114(1), and that the offense was committed to gratify the defendant’s desire for
pleasure or excitement. See id. § 40-35-114(7). In determining the manner of service of the
defendant’s sentence, the trial court considered all of the factors listed in Tennessee Code
Annotated section 40-35-103 as well as the factors relevant to a probation determination.

        The trial court then reached a determination that split confinement was appropriate
in this case, stating:

               Most of the factors enumerated in [State v.] Blackhurst [, 70 S.W.3d
       88, 97 (Tenn. Crim. App. 2001)] [regarding a probation determination] are
       neutral in the alternative sentencing analysis. [The] [d]efendant’s work
       history is slightly favorable to him. He had no family responsibility which
       would favor full probation. [The] [d]efendant gave no testimony but chose to
       make a statement to the court. The court found [the] [d]efendant’s demeanor
       indifferent as to the abuse of a very young female and did not find him to be
       genuinely remorseful for his actions. His poor attitude and the fact he abused
       the victim over an extended period of time causes the court to conclude it is
       in the public’s best interest that he be incarcerated for a period of time.

              The court finds an appropriate sentence for his conviction is an
       alternative sentencing of “split confinement” under T.C.A. § 40-35-306 which
       is one of the alternative sentencing options offered in T.C.A. § 40-35-104.
       Defendant shall serve 11 months and 29 days of his two year sentence in the
       Franklin County Jail and the remainder on state probation. He shall perform
       100 hours of public service as a condition of probation.

        The record shows that the trial court addressed the relevant considerations in
determining the manner of service of sentence, and we cannot conclude that the imposition
of split confinement was in error. However, as conceded by the State, the trial court did err
in its imposition of an eleven-month-and-twenty-nine-day period of incarceration.

                                             -5-
Tennessee Code Annotated section 40-35-501(a)(3) provides, “Notwithstanding any other
provision of law, inmates with felony sentences of two (2) years or less shall have the
remainder of their original sentence suspended upon reaching their release eligibility date.”
Under this statute and the holding in State v. John W. Hill, No. 01C01-9802-CC-00072,
1999 WL 92948, at *1 (Tenn. Crim. App. Feb. 25, 1999), the period of time ordered to be
served in split confinement cannot exceed the defendant’s release eligibility date. See also
State v. Gary M. Carter, No. M2006-02341-CCA-R3-CD, 2008 WL 544629, at *4 (Tenn.
Crim. App. Feb. 21, 2008); State v. David Wayne Fountain, No.
E2004-01226-CCA-R3-CD, 2005 WL 1528244, at *4 (Tenn. Crim. App. June 28, 2005);
State v. Henry Marshall, Jr., No. W1999-01159-CCA-R3-CD, 2001 WL 91950, at *6 (Tenn.
Crim. App. Jan. 26, 2001). For a Range I offender, the release eligibility date is 30% of the
sentence imposed, minus any earned and retained sentence credits. Tenn. Code Ann. §
40-35-501(c). Accordingly, by our calculations, the release eligibility date on a two-year
sentence would be after service of 7.2 months. Thus, the period of incarceration imposed
by the trial court would restrain the defendant’s liberty longer than permitted by law.
Therefore, we modify the judgment of the trial court to the extent the defendant was ordered
to serve eleven months and twenty-nine days in jail and remand this matter to the trial court
to enter an amended judgment setting the defendant’s period of confinement at 7.2 months.
In all other respects, the judgment of the trial court is affirmed.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the trial court’s
imposition of a split confinement sentence. However, we modify the judgment of the trial
court to the extent it imposed an eleven-month-and-twenty-nine-day period of incarceration
and remand for entry of an amended judgment showing the defendant’s period of
incarceration at 7.2 months.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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