        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 3, 2015

                STATE OF TENNESSEE v. PATRICK WILSON

                 Appeal from the Criminal Court for Shelby County
                    No. 1403832    J. Robert Carter, Jr., Judge




             No. W2015-00225-CCA-R3-CD - Filed December 18, 2015
                        _____________________________

Defendant, Patrick Wilson, appeals the trial court‟s denial of an alternative sentence after
the entry of a guilty plea to aggravated statutory rape. Because the trial court did not
abuse its discretion in denying an alternative sentence, we affirm the judgment of the trial
court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR., and ALAN E. GLENN, JJ., joined.

Mark A. Mesler, Memphis, Tennessee, for the appellant, Patrick Wilson.

Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior
Counsel; Amy P. Weirich, District Attorney General; and Dru Carpenter, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       Defendant was indicted by the Shelby County Grand Jury in July of 2014 for
aggravated statutory rape. Defendant entered a guilty plea on January 7, 2015, with an
agreed sentence of two years. The manner of service of the sentence was to be
determined by the trial court at a sentencing hearing. Defendant was to file a petition for
a suspended sentence and register as a sex offender. The following factual basis for the
plea was provided by counsel for the State:
              [B]etween the dates of December 15th of 2012 and January 29th of
       2013, [Defendant], came to the home of the victim, [D.C.], 1 who was
       fourteen years old at the time, and [Defendant] was forty-one years old.

             He began to come to her residence and was allowed to come in by
       her mother, [T.H.], to perform repairs while she was not at home.

              The victim, [D.C.,] stated that the defendant was allowed in the
       residence at least three times per week and that each time the defendant
       entered the residence, they would engage in both natural and oral sex when
       she came home from school.

             The victim advised that she gave [Defendant] her cell phone and that
       they would correspond using that phone as well as engage in sexual
       conversations via Facebook.

       The presentence report was filed, and the trial court held a sentencing hearing. At
the hearing, Defendant testified that he was forty-three years of age. He admitted that he
had known the mother of the victim for a while and that they had actually dated for a
time, attending family events together with their children. They eventually ended their
relationship but remained friends. Defendant “fell on hard times,” and the mother of the
victim offered Defendant some odd jobs in order for him to make a little money.

        The statement by the victim‟s mother was introduced as a Victim Impact
Statement. In that statement, the mother of the victim discovered her daughter was
talking on the phone to Defendant one night after 10:00 p.m. She picked up the phone
and heard her daughter “talking to a man with a deep voice about sex.” The victim
admitted that she was talking to Defendant and that they were “having sex every day in
the living room when she got home from school.” The victim‟s mother explained that
both she and the victim were attending counseling as a result of the abuse. Additionally,
the victim suffered from “trust issues,” locked her door at night, and had trouble sleeping.

        Defendant explained to the trial court that there was “no excuse” for his behavior.
He acknowledged that he violated the trust of the victim and her mother and that his
actions were “wrong.” Defendant agreed to attend counseling if recommended by the
trial court. He admitted that in the twenty-five years preceding the guilty plea, he had
two driving citations that were ultimately dismissed. Prior to that, he had three
misdemeanor convictions between the ages of eighteen and twenty-three that were all
“theft-related”—a credit card fraud conviction, a forgery conviction, and a theft
conviction.

       1
           It is the policy of this court to protect the identity of the victims of sexual abuse.
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       Defendant was a high school dropout but completed his GED and attended some
college classes for medical coding. At the time of the hearing, he was working at
Vatterott College, teaching. His salary was $2145 twice a month, and he worked from
7:30 a.m. to approximately 10:30 p.m. Defendant had a strong work history, two
biological children, and one child that he considered his own but that was not his
biological child. He pays child support for two of the children.

        On cross-examination, Defendant admitted that he had “fallen on hard times”
because he lost his job. Defendant explained that he thought he “had an accident at that
time and [he] lost [his] license and that was the reason for . . . losing his job at that time.”
When questioned further, however, Defendant admitted that he was “using the company
credit card to pay [his] bills.”

        At the conclusion of the sentencing hearing, the trial court commented that the
petition was denied “and he can go to the penal farm.” The trial court noted that it would
be “curious to see” what a psychosexual evaluation would reveal about Defendant. The
trial court commented that if he did not incarcerate Defendant, he would “absolutely [be]
depreciating the seriousness of this offense” and that was “not a message [the trial court]
want[ed] in this community, that you can have a long-term sexual relationship with a
fourteen year old when you‟re a grown man and violate the trust of a family, an
individual and a community that way and that there not be some repercussions to it that
are more serious than just strict probation.”2

        Defendant filed a timely notice of appeal.

                                               Analysis

       On appeal, Defendant argues that the trial court failed to follow the statutory
sentencing procedure and placed “too much emphasis on the nature of the offense,”
ignoring the fact that he was “an excellent candidate for probation.” The State disagrees.

       When a defendant challenges the length, range, or manner of service of a sentence,
this Court reviews the trial court‟s sentencing decision under an abuse of discretion
standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies
to “within-range sentencing decisions that reflect a proper application of the purposes and
principles of the Sentencing Act.” Bise, 380 S.W.3d at 707.


        2
         The trial court provided for a delay in execution of the judgment so that Defendant could notify
his employer.
                                                   -3-
       Tennessee Code Annotated section 40-35-104 authorizes alternative sentences,
which may include a sentence of confinement that is suspended upon a term of probation
or a sentence of continuous or periodic confinement in conjunction with a term of
probation. T.C.A. § 40-35-104(c)(3)-(5). A defendant is eligible for probation if the
sentence imposed is ten years or less. T.C.A. § 40-35-303(a). Although “probation shall
be automatically considered by the court as a sentencing alternative for eligible
defendants,” the defendant bears the burden of “establishing suitability” for probation.
T.C.A. § 40-35-303(b). “This burden includes demonstrating that probation will
„subserve the ends of justice and the best interest of both the public and the defendant.‟”
State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982
S.W.2d 354, 357 (Tenn. Crim. App. 1997)).

       A defendant who is sentenced as an especially mitigated or standard offender and
who has committed a Class C, D, or E felony should be “considered as a favorable
candidate for alternative sentencing options,” if certain conditions are met. T.C.A. § 40-
35-102(5), (6)(A). The guidelines regarding favorable candidates are advisory. T.C.A. §
40-35-102(6)(D). In this case, Defendant pled guilty to one Class D felony and was
sentenced to an effective sentence of two years for the conviction.

      Tennessee Code Annotated section 40-35-103 requires that sentences involving
confinement be based 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;

T.C.A. § 40-35-103(1).

       The trial court in this case relied on subsection (B) of Tennessee Code Annotated
section 40-35-103(1). In ordering Defendant to serve his sentence in incarceration, the
trial court specifically noted the nature of the offense and the fact that a sentence
involving anything other than incarceration would send a bad message to the community.
Defendant argues that a passing reference to the seriousness of the offense and a lengthy
commentary on the nature of the offense do not support the denial of an alternative
sentence. We disagree. The trial court clearly stated that unless he sentenced Defendant
to incarceration he would be depreciating the seriousness of the offense. The trial court
                                           -4-
herein acted consistently with the purposes and principles of the Sentencing Act. We
conclude that the trial court did not abuse its discretion in denying alternative sentencing.
Defendant is not entitled to relief on this issue.

                                        Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                                  _________________________________
                                                  TIMOTHY L. EASTER, JUDGE




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