            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE              FILED
                          JUNE SESSION, 1999          July 28, 1999

                                                                Cecil Crowson, Jr.
                                                                Appellate C ourt
                                                                    Clerk


STATE OF TENNESSEE,     )
                        )           No. 03C01-9810-CR-00346
    Appellee            )
                        )           HAMILTON COUNTY
vs.                     )
                        )           Hon. Stephen M. Bevil, Judge
CHESTER LEBRON BENNETT, )
                        )           (Sentencing)
    Appellant           )



For the Appellant:                  For the Appellee:

Ardena J. Garth                     Paul G. Summers
District Public Defender            Attorney General and Reporter

Donna Robinson Miller               Erik W. Daab
Asst. Public Defender               Assistant Attorney General
701 Cherry Street, Suite 300        Criminal Justice Division
Chattanooga, TN 37402               425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493

                                    William H. Cox III
                                    District Attorney General

                                    Claire H. Brant
                                    Asst. District Attorney General
                                    600 Market Street, Cts. Bldg.
                                    Chattanooga, TN 37402




OPINION FILED:

REVERSED AND REMANDED


David G. Hayes
Judge
                                                  OPINION



         The appellant, Chester LeBron Bennett, pled guilty to five counts of criminal

exposure to HIV (Human Immunodeficiency Virus), a class C felony. See Tenn.

Code Ann. § 39-13-109(a)(1) (1997). 1 The plea agreement provided that the

appellant’s sentences would run concurrently; however, all other sentencing issues,

including the length and manner of service of the sentences, were submitted to the

trial court for determination. The trial court sentenced the appellant to five four-year

sentences to be served in the Department of Correction. He appeals from these

sentences contending that the trial court should have granted him an alternative

sentence, specifically, probation or community corrections.



         After review, we reverse and remand for consideration of sentencing

alternatives.



                                               Background



         The appellant’s convictions arise from five separate, consensual, and

unprotected sexual encounters with the female victim between the dates of April 29,

1997, and May 3, 1997. In April 1997, the appellant began dating the victim, a long-

time friend. The victim subsequently found some medication that the appellant left

at her home. When she questioned him about the medication, the appellant

informed her that it was part of his treatment for lung cancer. Shortly thereafter, the

victim doubted the appellant’s explanation and contacted a pharmacist. The

pharmacist informed her that the medication was for treatment of HIV/AIDS. The

victim confronted the appellant with the information and he finally admitted that he

was HIV positive.


         1
          This offense provides that, “A person commits the offense of criminal exposure of
ano ther to HIV w hen , kno wing that s uch pers on is in fecte d with HIV, suc h per son kno wing ly
engag es in intim ate con tact with an other.”

                                                     2
       At the sentencing hearing, the appellant, a thirty-one year old high school

graduate, testified that he contracted HIV through a sexual relationship with a former

girlfriend who failed to tell him of her infection with the virus. After donating blood in

August of 1996, the appellant was informed of his HIV positive status. The

appellant admitted that he did not inform the victim of his HIV infection because

“[he] didn’t want to deal with the rejection.” Additionally, he explained that, at the

time of the sexual encounters, he was in denial regarding his infection with HIV.



       Shortly after these offenses were committed, the appellant married Allene

Bennett. Prior to their marriage, the appellant informed her that he was infected

with HIV and that criminal charges were pending against him. He has two children

from a previous marriage and two step-children from his present marriage. Before

his arrest for these offenses, the appellant was regularly employed as a shipping

clerk with an excellent work record. However, due to the present offenses, the

appellant lost his job and has been unable to find further employment. The

appellant’s criminal history consists of three assault convictions each respectively in

1985, 1988, and 1996.



       The proof at the sentencing hearing additionally revealed that, as a result of

his HIV infection and the instant offenses, the appellant voluntarily sought

assistance from Chattanooga Cares, an AIDS resource center. Since his arrest, he

admits that he has been severely depressed and has attempted suicide twice. He

admitted himself to Valley Psychiatric Hospital for treatment. Moreover, the

appellant receives continuing psychiatric care from Family and Children Services.

He reiterated his remorse for his actions and his concern for the victim. Several

members from the Chattanooga Cares Center testified that the appellant is now

“positive” in his attitude and has become a responsible person in dealing with his

HIV status. The court also heard supportive testimony from the appellant’s wife in

addition to receiving numerous letters of support from family members. Although


                                           3
the State presented no proof, it did advise the court that the victim tested negative

for HIV shortly after the parties’ last sexual encounter and was again found negative

in a retest six months later.2



        In imposing a penitentiary sentence, the trial court observed:

        [O]ne of the reasons for incarceration is to avoid depreciating the
        seriousness of the offense, I think to do anything other than to require
        [the appellant] to be incarcerated would be saying to the public out
        there, “If you’ve got HIV and you’re infected, it’s okay to have sex with
        someone else and not tell them because if you are caught when you
        do it, than what’s going to happen to you is if you’re taking care of
        yourself and you’re participating in the programs then you’ll probably
        get placed on probation” . . .
        And so in order to avoid the seriousness of this offense as a
        deterrence and also because of the fact that [the appellant] has shown
        in the past by committing acts of assault on other persons that he has
        a disregard for the feelings and concern and the welfare of other
        people, I think that the proper sentence would be to serve four years
        and I’m going to order that it be served in the Department of
        Correction.




                                              Analysis



        Our legislature has recognized that not every person convicted of a felony

should be imprisoned and that this state does not have the physical capacity or the

financial resources to incarcerate every felon in the penitentiary. See Tenn. Code

Ann. § 40-35-102(5) (1997). In furtherance of these legislative acknowledgments,

the General Assembly has presumptively removed from confinement standard

offenders convicted of class C, D, or E felonies who do not possess criminal

histories evincing a clear disregard for the law; who have not committed the most

serious offenses; and whose past efforts at rehabilitation have not failed. See

Tenn. Code Ann. § 40-35-102(5) and (6). The goal of effective rehabilitation as an

integral part of the sentencing process is repeatedly underscored within our




        2
         The victim did not testify at the sentencing hearing, according to the State, based upon
her con cerns f or privacy a nd em barras sme nt.

                                                 4
sentencing laws as is the encouragement and promotion of alternative sentencing

options. See Tenn. Code Ann. §§ 40-35-102(3)(c); 40-35-103(6) (1997).



         It should now be fundamental that, if the State wishes to confine a defendant

statutorily entitled to the presumption of alternative sentencing, it bears the burden

of presenting evidence showing that:

         (A) The defendant has a long history of criminal conduct and
         confinement is necessary to protect society; or

         (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.


Tenn. Code Ann. § 40-35-103(1)(A)-(C). In the present case, the State has failed to

establish sufficient evidence to the contrary to necessitate a sentence of total

confinement.3 Additionally, the trial court’s imposition of incarceration based upon

“depreciating the seriousness of the offense” and “deterrence” rests entirely upon

the appellant’s guilt for his offenses. Accordingly, the trial court erred by not

considering available alternatives to a sentence of total confinement.



         Although the issues of “deterrence” and “depreciating the seriousness of the

offense” have exhaustively been addressed by the appellate courts of this state with

unmistakable clarity, we find it necessary to again address these concerns. In State

v. Ashby, 823 S.W.2d 166, 170-171 (Tenn. 1991), our supreme court held, “[t]he

finding of deterrence cannot be conclusory only but must be supported by the

proof.” The court reasoned that reliance upon deterrence as to the sole grounds for

denying an alternative sentence “would defeat the whole concept of [an alternative

sentence]” as deterrence is a factor uniformly present in every case. Reliance on



         3
         W e not e tha t the a ppe llant’s three mis dem ean or co nvictio ns fo r sim ple as sau lt, two o f
which oc curred over ten yea rs ago, fa ll short of co nstituting “a lon g history of c riminal c onduc t”
and, thus , do not we igh in favor o f confine men t. See Tenn. Code A nn. § 40-35-103(1)(A).

                                                       5
this factor is no more realistic or reasonable than denying probation on grounds that

the defendant committed a crime. Id. at 170. In accordance with Ashby, we have

repeatedly held that, before a trial court can deny alternative sentencing on the

grounds of deterrence, there must be some evidence contained in the record that

the sentence imposed will have a deterrent effect upon similar future crimes within

that particular jurisdiction. See State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim.

App. 1996). In the present case, no evidence was presented relative to the need for

deterrence. We are confident that the granting of an alternative sentence in the

present case will not unravel the moral fabric of Hamilton County. Indeed, it would

appear unlikely that the imprisoning of an obscure indigent defendant will have little,

if any, deterrent effect upon those likely to commit similar crimes in the future.



        Additionally, beginning with State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn.

Crim. App. 1991), this court has repeatedly held that, “[i]n order to deny an

alternative sentence based upon the seriousness of the offense, ‘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 a sentence other than

confinement.” See also State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1995). In Hartley, this court reasoned that,

“once the legislature has specifically authorized the use of sentencing alternatives to

confinement for a particular offense, trial courts may not summarily impose a

different standard by which probation is denied solely because of the defendant’s

guilt for that offense.”4 Hartley, 818 S.W.2d at 374.



        In addition to the trial court’s findings in contravention of Ashby and Hartley,

the court neglected to consider proof presented by the appellant supporting his

        4
          Altho ugh the re cord has f ailed t o est ablish the fa cts o f this c ase to be so es pec ially
violent, horrifying or excessive as to outweigh the presumption of alternative sentence, this is not
to say that the circumstances of every case involving criminal exposure to HIV can never be so
espec ially violent, horrifying or e xcess ive as to de ny a sente nce of c onfinem ent.

                                                     6
potential for rehabilitation.5 See Tenn. Code Ann. § 40-35-103(5). In State v.

Zeolia, 928 S.W.2d at 461, applying the statutory provisions of Tenn. Code Ann. §

40-35-210(b)(5),6 this court held that the trial court may look to statutory mitigating

and enhancing factors for guidance in determining the defendant’s rehabilitative

potential or lack thereof. In those cases involving an offender who is presumptively

entitled to an alternative sentence, the potential for rehabilitation must always be

weighed and considered before determining that a sentence of confinement should

be imposed.



         Inherent in every sentence involving release into the community are the

following valid concerns

         (1) whether there is a substantial risk that during the period of release
         the offender will engage in additional criminal conduct; and

          (2) whether the offender is likely to respond affirmatively to
         participation in a rehabilitation program and/or imposed conditions of
         release.


After weighing the sentencing considerations of Section 103 against relevant

mitigating and enhancing factors evidencing rehabilitative potential and the above

two concerns, we cannot conclude that the State has presented evidence sufficient

to rebut the presumption favoring an alternative sentence.



         As previously recognized trial courts are encouraged to impose rehabilitative

alternative sentencing options where permitted by statute. Our obligation upon

appellate review is to act in furtherance of legislative intent embraced in the statutes.




         5
           We do note that, in determining the appellant’s length of sentence, the trial court applied
the following non-enumerated mitigating circumstances: (1) the appellant exhibits some remorse;
(2) he has an excellent work record and is actively seeking employment; (3) he has informed
pote ntial e mp loyers of his healt h sta tus to his de trim ent; a nd (4 ) he h as th e sup port o f his fa mily
and relatives. These factors are also supportive of the appellant’s potential for rehabilitation.

         6
          Tenn. Code Ann. § 40-35-210(b)(5) provides “to determine the specific sentence and the
approp riate com bination of senten cing altern atives . . . the trial co urt shall co nsider . . . (5) . . .
[E]nhan cing and mitigating factors. . . .”

                                                        7
                                                Conclusion



         Accordingly, this case is remanded to the trial court in order to allow

consideration of appropriate alternative sentencing options including split

confinement, community corrections 7 and probation coupled with the imposition of

reasonable conditions relating to release.




                                             ________________________________________
                                             DAVID G. HAYES, Judge




CONCUR:



_____________________________________
JOHN H. PEAY, Judge



_____________________________________
JOHN EVERETT W ILLIAMS, Judge




         7
           The S tate incorre ctly argues on appe al that the ap pellant is not e ligible for a com mun ity
corrections sentence. Eligibility for a community corrections sentence was specifically addressed
by this court in State v. Boston, 938 S.W.2d 435 (Tenn. Crim. App. 1996) (reciting special needs
criteria relevant to placement in comm unity corrections program).

                                                     8
