         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 13, 2010

                STATE OF TENNESSEE v. EDWARD THOMPSON

               Direct Appeal from the Criminal Court for Shelby County
                        No. 97-04025     Paula Skahan, Judge


                No. W2009-01225-CCA-R3-CD - Filed September 3, 2010


The defendant, Edward Thompson, appeals the Shelby County Criminal Court’s denial of his
petition to suspend his sentence to probation. The defendant pled guilty to attempted rape of a child,
a Class B felony, and received an agreed sentence of ten years. However, as part of the agreement,
he reserved the right to request that the trial court sentence him to probation. On appeal, he contends
that the trial court erred in its decision by “not appropriately bas[ing] the denial of probation upon
the sentencing considerations set forth in Tennessee Code Annotated 40-35-103.” Following review
of the record, we conclude that the trial court did not err in denying the petition.

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

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

James P. DeRossitt, IV, Memphis, Tennessee, for the appellant, Edward Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant
Attorney General; William L. Gibbons, District Attorney General; and Scot Bearup, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

      The facts underlying the defendant’s conviction were set out, and stipulated to by the
defendant, at the guilty plea hearing as follows:

                Your Honor, the facts giving rise to this matter, on or about the dates set out
       in the indictment, the victim in this matter, who was less than the age of thirteen, was
       at the defendant’s residence - - or a place where he maintained horses. She and her
       brothers were riding. While the brothers were still out, and later returned, the
       defendant engaged in some conversation with the victim and then when the brothers
       returned, they went across the street to a store.

              The State would have put on proof to establish that at that time the defendant
       made various promises to the victim, and in exchange for those promises, did engage
       in sexual relations with the victim in this matter.

               The victim then became pregnant, and a child was born. And, during the
       course of the pregnancy, the police were involved. And, at their instruction, the
       victim and her mother, they went to Juvenile Court after the birth of the child and
       filed a paternity matter.

               During the course of that paternity proceeding, two tests were done. The first
       one, as a matter of course, the second one, at the defendant’s request. And, both of
       those tests have established the defendant to be the father of the child.

        Based upon the foregoing facts, the defendant was indicted in 1997 for one count of rape of
a child. However, because he was not located, he was not arrested for the offense until 2008.
Pursuant to a negotiated best-interest plea agreement, the defendant subsequently pled guilty to one
count of attempted rape of a child and received a ten-year sentence as a Range I offender. The
defendant then filed a petition with the court asking that his sentence be suspended. A hearing was
held on the matter, at which both the defendant and the victim testified.

        At the hearing, the sixty-one-year old defendant testified in a somewhat confusing manner
but did eventually acknowledge that he had prior multiple convictions for assault and driving with
a revoked license. While he stated that he pled guilty to these offenses, he denied that he had even
been in any fights. He stated that he had been sentenced to probation three times previously, but he
said he “didn’t do” the crimes. He further acknowledged that the paternity tests had indeed shown
that he was the father of the victim’s child, but he maintained that he did not remember ever having
sexual intercourse with the victim. He introduced a letter which he claimed that the victim’s
daughter had given him which indicated that the victim had stolen a condom which the defendant
had used during a sexual encounter with another person and impregnated herself with the contents.

        The defendant testified that he had dropped out of high school and was unable to read or
write. He stated that he was a self-employed construction worker but was very unclear with regard
to his financial status including whether he had consistently paid child support. Upon further
questioning, he stated that he did not handle his own finances because of his inability to read and
write.

        The defendant also gave testimony indicating that he had never consumer illegal drugs or
alcohol. However, the State introduced a copy of the psychosexual evaluation which was done of
the defendant, and the report indicated that the defendant had “admitted to a history of polysubstance


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abuse and other illegal behaviors in the past.” The report went on to note that the defendant
appeared to be “withholding information” as well. When questioned about the statements in the
report, the defendant denied that he had made those comments to the examiner. However, he did
acknowledge that he does have a problem “remembering things.”

         The victim also testified at the hearing and testified that she had a thirteen-year-old daughter
who was also the child of the defendant. She stated that the defendant did not regularly see the child,
having seen her only three times in her lifetime. She also testified that the defendant, on only a few
occasions, had given his daughter money for Christmas but never any birthday presents. She also
testified that the defendant was in arrears with his child support.

        With regard to the rape, she stated that she was twelve years old at the time and that the
defendant had taken her inside a barn and raped her. She testified that she told the defendant that
it was wrong and that she had to attend counseling sessions for at least two years afterwards. She
stated that she was still bothered by the crime that the defendant committed against her. She also
reviewed the note which the defendant alleged had been given to him by his daughter. The victim
affirmatively denied that she had ever written the note and, further, that her daughter had given the
note to the defendant.

       After hearing the evidence presented, the trial court denied the petition to suspend the
sentence and ordered that the defendant be sentenced to the Department of Correction. The
defendant has timely appealed that decision.

                                               Analysis

        On appeal, the defendant contends that the trial court erred in denying his petition to suspend
his sentence to probation. Specifically, he contends that the trial court “did not appropriately base
the denial of probation upon the sentencing considerations set forth in Tennessee Code Annotated
[section] 40-35-103.” He contends that “the misapplication of sentencing considerations” by the trial
court requires that this court reverse the denial and remand the case to the trial court to place the
defendant on probation. We disagree.

         When an accused challenges the length, range, or manner of service of a sentence, this court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. T.C.A. § 40-35-401(d) (2006); State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). 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.” Ashby,
823 S.W.2d at 169. Furthermore, we emphasize that facts relevant to sentencing must be established
by a preponderance of the evidence and not beyond a reasonable doubt. State v. Winfield, 23 S.W.3d
279, 283 (Tenn. 2000). The party challenging a sentence bears the burden of establishing that the
sentence is erroneous. T.C.A. § 40-35-401(d), Sentencing Comm’n Cmts.

        Pursuant to the 2005 sentencing amendment, a defendant is no longer presumed to be a


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favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008).
Instead, our statute now reads 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. Id. at 343 (citing T.C.A. § 40-35-
102(6) (2006)). Evidence to the contrary may be established by showing that: (1) confinement is
needed to protect society by restraining a defendant who has a long history of criminal conduct; (2)
confinement is needed 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) less restrictive measures than confinement have frequently or recently been applied
unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. § 40-35-103(1)(A)-(C)).
The trial court may also consider the mitigating and enhancing factors set forth in Tennessee Code
Annotated sections 40-35-113 and -114. T.C.A. § 40-35-210(b)(5) (2006); State v. Boston, 938
S.W.2d 435, 438 (Tenn. Crim. App. 1996). In addition, a trial court should consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative sentence would be
appropriate. T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.

        In this case, while the defendant remains eligible for probation because his sentence was ten
years or less and the offense for which he was convicted is not specifically excluded by statute, he
does not fall within the parameters of the statute in question, as he was convicted of a Class B felony.
Further, his argument ignores that a defendant is required to establish his “suitability for full
probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); T.C.A. § 40-35-303(b)
(2006). A defendant seeking full probation bears the burden of showing that probation will
“subserve the ends of justice and the best interest of both the public and the defendant.” State v.
Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State, 201 Tenn. 156, 297
S.W.2d 78, 81 (Tenn. 1956), overruled on other ground by State v. Hooper, 29 S.W.3d 1, 9 (Tenn.
2000)). Among the factors applicable to probation consideration are the circumstances of the
offense; the defendant’s criminal record, social history, and present condition; the deterrent effect
upon the defendant; and the best interests of the defendant and the public. State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978).

       The defendant contends that the trial court “erred in its application of the sentencing
considerations” of Tennessee Code Annotated section 40-35-103(1) because “the trial court’s
consideration of [the three factors] was either cursory and unsupported by the record, or illogical.”
In denying full probation in this case, the trial court made the following findings:

                What’s a shame is since 1997 when this indictment went out you’ve been
        arrested three separate times; in 2003 for assorted charges, driving on revoked,
        suspended license, disorderly conduct, violation of financial law and vandalism and
        they didn’t pick up the warrant. They should have. You should have been charged
        back in 2003 with this rape of a child.

               Two months later in 2003 you were again arrested, charged with domestic
        violence and convicted, placed on probation. Again, they didn’t catch that you had


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an outstanding indictment.

       And September of 2005 you were charged with driving on revoked,
suspended license and again somehow the system failed [the victim], time and time
and time again. You failed her and the system has failed her by not having you
charged with this offense sooner.

        You testified about having been self-employed all your life working but it
appears you don’t pay income tax on anything you earn. Someone else supposedly
takes care of it.

       You stated that you’re not guilty of any of these assaults or any other charges
you’ve ever been charged with. It’s - - you don’t accept responsibility for any of your
behavior or being a responsible citizen. You never have.

        As far as sentencing considerations, you were very fortunate in my opinion
that you didn’t go to trial because I think you would have been convicted of rape of
a child. And you would have been looking at instead of ten years at 30 percent, 15
to 25 years day for day, no sentencing credits. So you’re very fortunate that you were
able to work that out.

        Now as far as granting you or denying you probation on the ten-year sentence,
lesser included offense of criminal attempt to commit rape of a child, I have to
consider whether confinement is necessary to protect society by restraining the
defendant who has a long history of criminal conduct. You have a pretty good
history of assaulting woman.

        Confinement is necessary to avoid depreciating the seriousness of the offense.
That’s definitely true in this case. You’ve attempted to depreciate the seriousness of
it by denying it, but this Court finds that this is a very, very serious, serious case and
that confinement is necessary to avoid depreciating the seriousness.

        Measures less restrictive that confinement have frequently or recently been
applied. You’ve been on probation at least twice and failed to learn from that. At
least you could have come in here and been man enough to own up to what you did.

        Potential or lack of potential for rehabilitation or treatment of the defendant
should be considered. I don’t see any potential for rehabilitation in you whatsoever
due to the fact that you refuse to acknowledge what you did to this girl. And she
certainly has suffered because of it.

       I don’t see any reason to put you on probation, not one. Petitioner to suspend
sentence is denied. Show judgment executed.


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        Review of the record reveals no error in the trial court’s consideration of the denial of
probation. The trial court affirmatively considered all the sentencing principles, the nature and
circumstances of the case, the defendant’s social and work history, and his amenability to correction.
The trial court found each of the three factors which may be relied upon to establish “evidence to the
contrary,” and we believe each was established by the record. We also note that a finding of only
one factor is required by the court to support denial. There is no dispute that the record establishes
a history of criminal conduct or that measures less restrictive than confinement had frequently or
recently been applied. Further, we agree with the court’s conclusion that confinement was necessary
to avoid depreciating the seriousness of the offense. We agree with the defendant’s assertion that
in order to deny an alternative sentence upon this ground, “the circumstances of the offense as
committed must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise
of an excessive or exaggerated degree, and the nature of the offense must outweigh all factors
favoring probation.” See State v. Bottoms, 87 S.W.3d 95, 103 (Tenn. Crim. App. 2001). While the
trial court did not make this specific finding, we can glean from its comments that it found the
circumstances here to be horrifying, reprehensible, offensive, and of an exaggerated degree. The
record reveals that the defendant had sexual intercourse with a twelve-year-old child, impregnated
her, and denied responsibility for his actions even when paternity testing established to a 99.99
certainty that the defendant was the father. Additionally, the defendant submitted a letter to the
court, which the victim did not write, in which he tried to assert that she had impregnated herself by
using a condom.

         Regardless, unlike a petition for any type of alternative sentence, in a petition for probation,
it is the defendant who bears the burden of establishing his suitability. As found by the trial court,
and on the record before us, the defendant has simply failed to do that. The defendant has multiple
prior convictions for assault, domestic violence, and driving offenses. He had previously been on
probation three times and continues to commit crimes. Moreover, he denies his responsibility for
all crimes, despite the fact that in several instances, he pled guilty to the offenses. The court also
noted that the defendant refused to be financially responsible as evidenced by both his failure to
consistently pay child support and his failure to pay income taxes on his income. Clearly, the court
found no potential for rehabilitation existed for this defendant, given his failure to accept
responsibility for the crimes he committed and his failure to show remorse. Additionally, the
psychosexual evaluation report admitted into evidence indicated that the defendant had a high
propensity for “manipulativeness” and “procriminal attitude.” Moreover, as noted, the defendant
appears to have not been wholly truthful in his testimony to the court, as it contradicted the
information he supplied to the psycosexual examiner. Based upon these facts, we must agree with
the trial court that the defendant has failed entirely to establish his entitlement to a sentence of
probation.




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                                       CONCLUSION

       Based upon the foregoing, the denial of probation by the Shelby County Criminal Court is
affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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