         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 18, 2008

              STATE OF TENNESSEE v. GRADY HAYES BROWN

                Direct Appeal from the Criminal Court for Davidson County
                          No. 2006-A-269    Seth Norman, Judge



                      No. M2007-01921-CCA-R3-CD - Filed July 24, 2008



The Defendant pled guilty to one count of rape and two counts of sexual battery by an authority
figure. Pursuant to the plea agreement, the Petitioner received an eight year sentence for the rape
conviction and three year sentences on each sexual battery conviction. The trial court held a
sentencing hearing to determine the manner of service. At the sentencing hearing, the Defendant
complained that his counsel forced him to plead guilty, after which counsel moved to withdraw. The
trial court denied the motion to withdraw, and it ordered the Defendant to serve the sexual battery
convictions concurrently to each other but consecutively to the rape conviction. The court also
denied alternative sentencing. On appeal, the Defendant raises three issues: (1) the trial court erred
in refusing to allow Counsel to withdraw during the sentencing hearing; (2) the trial court erred in
imposing consecutive sentencing for the sexual battery and rape convictions; and (3) the trial court
erred in denying alternative sentencing. After a thorough review of the record and applicable law,
we affirm the judgments of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE, JJ., joined.

David Hopkins (at hearing), and William E. Griffith (on appeal), Nashville, Tennessee, for the
Appellant, Grady Hayes Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson, III, District Attorney General;
Sharon Reddick, Assistant District Attorney General, for the Appellee, the State of Tennessee.

                                             OPINION
                                              I. Facts

       A Davidson County Jury indicted the Defendant for thirteen counts of various sexual assaults.
Pursuant to the plea agreement, the Defendant pled guilty to three of those counts, with ten being
dismissed. Because the Defendant failed to include in the record the transcript from the guilty plea
hearing, we do not have the benefit of a detailed version of the facts underlying the guilty pleas.
Nevertheless, we can glean from the record that the Defendant dated a woman named Blackwell, and
the allegations arose from the Defendant’s interactions with Blackwell’s minor son, the victim. The
victim alleged that the Defendant sexually assaulted him at various times over the course of a year
and a half.

        At the sentencing hearing, the following evidence was presented: Detective Les Carlisle of
the Goodlettsville Police Department testified that he investigated a police report filed by Blackwell
on behalf the victim. During an interview, the victim stated that his mother would go to work each
night, during which time the Defendant would watch the victim and his siblings. The victim told
Detective Carlisle that “during a year and a half period, several times, that [the Defendant] fondled
him, performed oral sex on him, would kiss him about his body and rub him. He also stated on a
couple of occasions that he attempted to penetrate his rectum.” During this time, the victim was
twelve to thirteen years old. Detective Carlisle called the Defendant for an interview, and the
Defendant came into the police station and consented to the interview. After Detective Carlisle read
him his Miranda rights, the Defendant denied having sexual contact with the victim. Later in the
interview, however, the Defendant admitted fondling the victim “several times.”

        Detective Carlisle testified that, based on his interview, he sought an indictment containing
multiple counts against the Defendant. Although the Defendant only pled guilty to the allegations
contained in three counts, Detective Carlisle testified that the Defendant admitted to additional
incidents. He stated that the victim has had “some problems” since the incidents but did not provide
further explanation.

        On cross-examination, Detective Carlisle testified that the victim had “problems” prior to the
accusations, and, in fact, the victim’s accusations developed during an interview after one of these
“problems.” Detective Carlisle stated that the victim was not at the sentencing hearing because he
was in juvenile detention. Detective Carlisle said that, after the interview, the Defendant was not
immediately arrested, and he had not violated his bond. He also admitted that he knew of no prior
criminal convictions, and he wished the Defendant would “get treatment.”

        The Defendant testified that he was fifty-five years old, and he had never been convicted of
a crime. He served in the United States Marines for five years and was honorably discharged. While
in the military, he worked as a customs inspector and police officer and received two medals. Since
leaving the military, he worked as a security officer for the U.S. Customs House and then for the
State of Tennessee for twenty-four years. He stated he has not been in any trouble during that time.

         The Defendant testified that he met Blackwell when she was dating his father. After a period
of time, they began dating, and the accusations came almost two years later. Since his arrest in 2005,
the Defendant stated that he had been on bond and had not been in any more trouble. The Defendant
testified that he owned a home and a rental property in Davidson County, and he received ten percent


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disability from the military.

        In addressing his guilty plea, the Defendant testified that he pled guilty “because [he] didn’t
know what to do.” At the time, he felt as though his best interests were served by pleading guilty.
The Defendant then stated, “I would like to say to the Court about the accusations that [the victim]
said, that they are totally untrue.” The Defendant indicated that he felt sorry for the victim, and
blamed the accusations on Blackwell. The Defendant stated that he understood what registering as
a sex offender would require if he were released on an alternative sentence. Although he did not
understand at the time of his guilty plea, he recognized that he would lose his job with the State, but
he stated he would find a new job. The Defendant then stated again that the accusations were untrue.

        On cross-examination, the Defendant reiterated that the accusations and his admissions were
not true. He stated that everything he told the police was “made up” to satisfy the detective who
“wanted a show.” The Defendant placed blame on the victim, the victim’s mother, the police, and
his attorney (“Counsel”). He claimed that Counsel told him to plead guilty, so he did. The
Defendant then admitted he was a “father figure” for the victim. At this point, Counsel made an oral
request to withdraw from representing the Defendant because the Defendant claimed he forced the
Defendant to plead guilty. The trial court continued the hearing in order to review the transcript
from the guilty plea.

        After the sentencing hearing resumed, the State noted from its review of the guilty plea
hearing that the Defendant expressed no dissatisfaction with Counsel. The trial court denied
Counsel’s formal motion to withdraw as counsel because it was “satisfied” that Counsel did “exactly
what [he] was supposed to do in this case.” On redirect-examination, the Defendant testified that
he had two children, ages seventeen and thirty-one, living in Tennessee. The Defendant stated that
he filed for bankruptcy and was still under a bankruptcy order. He claimed he had met every
obligation of the bankruptcy order.

        After hearing testimony at the sentencing hearing and reading the guilty plea transcript, the
trial court found that the Defendant refused to accept blame for his actions, and, instead, placed
blame on others. Pursuant to the psycho-sexual evaluation, the court found the Defendant was a
pedophile. Accordingly, the court sentenced the Defendant to serve 100% on the rape charge and
classified him as a Range I offender for the two sexual battery charges. The Court ordered the sexual
battery charges to run consecutively to each other and concurrently to the rape charge for a total
effective sentence of eleven years in prison. The court also found the Defendant was “dangerous”
and revoked his bond. It is from these judgments that the Defendant now appeals.

                                            II. Analysis

        On appeal, the Defendant raises three issues: (1) the trial court erred in refusing to allow
Counsel to withdraw during the sentencing hearing; (2) the trial court erred in imposing consecutive
sentencing for the sexual battery and rape convictions; and (3) the trial court erred in denying
alternative sentencing. The State initially responds that all these issues are waived because the


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Defendant failed to include in the record a transcript of his guilty plea. Additionally, the State argues
that each issue is without merit.

                   A. Motion of Counsel to Withdraw at Sentencing Hearing

        Based on the sentencing hearing transcript, Counsel’s motion to withdraw was premised on
the Defendant’s statement that Counsel forced him to plead guilty. Counsel was concerned that this
placed him in an adversarial position with the Defendant and thus created a conflict of interest. See
Tenn. Sup. Ct. R. 8, RPC 1.16. The State argues that the Defendant’s failure to include the guilty
plea transcript, reviewed by the trial court before ruling on the issue, constitutes waiver. See Tenn.
R. App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). Although we would have
preferred to have the transcript of the guilty plea, we conclude it is not required to review this issue.
Therefore, the Defendant has not waived this issue.

        A decision about whether to allow counsel to withdraw is within the discretion of the trial
court and may not be reversed absent an abuse of discretion. State v. Branam, 855 S.W.2d 563, 566
(Tenn. 1993); State v. Russell, 10 S.W.3d 270, 275 (Tenn. Crim. App. 1999) (citing State v. Melson,
638 S.W.2d 342, 359 (Tenn. 1982); Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973)).
Pursuant to statute, “The court may, upon good cause shown, permit an attorney appointed under this
part to withdraw as counsel of record for the accused.” T.C.A. § 40-14-205(a) (2006) (emphasis
added).

        The basis for the request to withdraw is based in Rule of Professional Conduct 1.16, which
provides: “[A] lawyer may withdraw from the representation of a client if the withdrawal can be
accomplished without material adverse effect on the interests of the client, or if : . . . good cause for
withdrawal exists[.]” Tenn. Sup. Ct. R. 8, RPC 1.16(b)(6). The Defendant claims the “good cause”
is the conflict of interest presented by the Defendant’s allegation that Counsel forced him to plead
guilty. We disagree. The statement by the Defendant – that Counsel forced him to plead guilty –
came near the conclusion of the sentencing hearing, some four months after the Defendant pled
guilty. Counsel was not inhibited in any way from continuing to represent the Defendant through
the conclusion of the sentencing hearing, and he did so admirably. The trial court did not abuse its
discretion in denying the motion to withdraw, because Counsel’s continued representation did not
prejudice the Defendant during the remainder of his sentencing hearing.

                                            B. Sentencing

        Although the State again asserts that the Defendant waived this issue by not including the
transcript of the guilty plea hearing, we again conclude that the transcript is not absolutely necessary
to the resolution of these issues. Therefore, we will address both sentencing arguments – that the
trial court erred in ordering partial consecutive sentencing and in denying alternative sentencing.
When a defendant challenges the length, range or manner of service of a sentence, this Court must
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.” T.C.A. § 40-35-401(d) (2006). As the Sentencing


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Commission Comments to this section note, the burden is on the appealing party to show that the
sentencing is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts. This means that if the trial
court followed the statutory sentencing procedure, made findings of facts which are adequately
supported in the record, and gave due consideration and proper weight to the factors and principles
relevant to sentencing under the 1989 Sentencing Act, T.C.A. § 40-35-103 (2006), we may not
disturb the sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847
(Tenn. 2001). The presumption does not apply to the legal conclusions reached by the trial court in
sentencing a defendant or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); 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).

         In conducting a de novo review of a sentence, we must consider: (1) any evidence received
at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4)
the arguments of counsel relative to sentencing alternatives, (5) the nature and characteristics of the
offense, (6) any mitigating or enhancement factors, (7) any statements made by the defendant on his
or her own behalf and (8) the defendant’s potential or lack of potential for rehabilitation or treatment.
See T.C.A. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

                                     1. Consecutive Sentencing

        The Defendant pled guilty to rape, a Class B felony, and two counts of sexual battery by an
authority figure, Class C felonies. T.C.A. §§ 39-13-503, -527 (2006) (rape and sexual battery by an
authority figure, respectively). The agreed-upon lenghts of those sentences for those convictions
were eight years for rape and three years for each of the sexual battery convictions. In setting a
sentence with multiple convictions, the trial court must abide by the guidelines in Tennessee Code
Annotated section 40-35-115. That statute provides:

        The court may order sentences to run consecutively if the court finds by a
        preponderance of the evidence that:

                (1) The defendant is a professional criminal who has knowingly
                devoted the defendant’s life to criminal acts as a major source of
                livelihood;

                (2) The defendant is an offender whose record of criminal activity is
                extensive;

                (3) The defendant is a dangerous mentally abnormal person so
                declared by a competent psychiatrist who concludes as a result of an
                investigation prior to sentencing that the defendant’s criminal conduct
                has been characterized by a pattern of repetitive or compulsive
                behavior with heedless indifference to consequences;


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               (4) The defendant is a dangerous offender whose behavior indicates
               little or no regard for human life, and no hesitation about committing
               a crime in which the risk to human life is high;

               (5) The defendant is convicted of two (2) or more statutory offenses
               involving sexual abuse of a minor with consideration of the
               aggravating circumstances arising from the relationship between the
               defendant and victim or victims, the time span of defendant’s
               undetected sexual activity, the nature and scope of the sexual acts and
               the extent of the residual, physical and mental damage to the victim
               or victims;

               (6) The defendant is sentenced for an offense committed while on
               probation; or

               (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b) (2006). The presence of a single factor is sufficient to justify consecutive
sentencing. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

       It appears the trial court imposed partial consecutive sentencing based upon subsection (4),
because the Defendant was a “dangerous” person. In our view, the evidence in the record does not
support a finding that the Defendant’s “behavior indicated little or no regard for human life, and [that
the Defendant had] no hesitation about committing a crime in which the risk to human life was
high.” The record, however, does contain substantial evidence to support consecutive sentencing
under subsection (5). The Defendant pled guilty to three crimes involving sexual abuse of a minor.
By his own admission, he was the victim’s father figure, and the abuse occurred over a year and a
half. This provides substantial evidence for consecutive sentencing based on subsection (5). We
conclude that the trial court did not err in ordering the sexual battery convictions to be served
consecutively to the rape convictions for an effective eleven year sentence.

                                     2. Alternative Sentencing

        Finally, the Defendant argues that the trial court erred in failing to order full probation or
split confinement. The Tennessee Supreme Court noted recently that, due to the 2005 sentencing
amendments, a defendant is no longer presumed to be a favorable candidate for alternative
sentencing. State v. Carter, — S.W.3d — , 2008 WL 2081247, at *10 (Tenn. 2008) (citing T.C.A.
§ 40-35-102(6) (2006)). Instead, a defendant who is not within “the parameters of subdivision (5)
[of T.C.A. § 40-35-102], and 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. (footnote omitted). Generally, defendants
classified as Range II or Range III offenders are not to be considered as favorable candidates for



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alternative sentencing.1 T.C.A. § 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note
that a trial court is “not bound” by the advisory sentencing guidelines; rather, it “shall consider”
them. T.C.A.§ 40-35-102(6) (emphasis added).

        If a defendant seeks probation, then that defendant bears the burden of “establishing [his]
suitability.” T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, “even
though probation must be automatically considered as a sentencing option for eligible defendants,
the defendant is not automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303
(2006), Sentencing Comm’n Cmts.

         When sentencing the defendant to confinement, 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 been
         applied unsuccessfully to the defendant.

T.C.A. § 40-35-103 (2006).

        The Defendant was convicted of a class B felony; therefore, he is not considered a favorable
candidate for alternative sentencing. T.C.A. § 40-35-102(6). We conclude the trial court was not
in error in denying the Defendant an alternative sentence. The Defendant is not entitled to relief on
this issue.

                                                  III. Conclusion

         After a thorough review of the record and applicable law, we conclude that the trial court did
not err in denying the motion by Defendant’s counsel to withdraw. Additionally, we do not find any
reversible error in the trial court’s sentencing of the Defendant. The judgments of the trial court are
affirmed.

                                                                       ________________________________
                                                                        ROBERT W. WEDEMEYER, JUDGE




1
  The legislature did carve out an exception to this rule where if “a defendant with at least three (3) felony convictions
is otherwise eligible, such a defendant may still be considered a favorable candidate for any alternative sentencing that
is within the jurisdiction of and deemed appropriate by a drug court.” 2007 Tenn. Pub. Acts 512.

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