            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1997       FILED
                                                      October 9, 1997

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )    No. 03C01-9611-CR-00400
      Appellee              )
                            )    SULLIVAN COUNTY
vs.                         )
                            )    Hon. R. Jerry Beck, Judge
ROGER LEE FLEENOR,          )
                            )    (Attempt to commit aggravated
      Appellant             )    sexual battery)



For the Appellant:               For the Appellee:

Larry S. Weddington              Charles W. Burson
200 Seventh Street               Attorney General and Reporter
Bristol, TN 37620
                                 Peter M. Coughlan
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 H. Greeley Wells, Jr.
                                 District Attorney General

                                 Teresa Murray Smith
                                 Asst. District Attorney General
                                 Blountville TN 37617




OPINION FILED:


AFFIRMED



David G. Hayes
Judge
                                       OPINION



       The appellant, Roger Lee Fleenor, appeals the sentence imposed by the

Sullivan County Criminal Court upon his plea of guilty to the offense of attempt to

commit aggravated sexual battery, a class C felony. Pursuant to a negotiated plea,

the appellant received a sentence of eight years as a range II offender. The manner

of service of the sentence was submitted to the trial court for determination.

Following a sentencing hearing, the trial court denied any form of alternative

sentence and ordered that the sentence be served in the Department of Correction.

The appellant now appeals this decision.



       After a review of the record, we affirm the decision of the trial court.




                                     Background



       The appellant’s conviction stems from the sexual contact of his seven year

old granddaughter. On a date occurring between May 31, 1994, and August 31,

1994, the appellant’s granddaughter spent the night alone with the appellant at his

house. Early the following morning, she went into her grandfather’s bedroom to say

good morning. The appellant pulled his granddaughter onto the bed and began to

fondle her under her clothing. The victim eventually told her mother, who reported

the incident to law enforcement officials. On March 21, 1995, a Sullivan County

Grand Jury returned a presentment against the appellant charging him with one

count of aggravated sexual battery, a class B felony. See Tenn. Code Ann. § 39-

13-504(a)(4) (1994 Supp.). On April 15, 1995, the appellant, pursuant to a plea

agreement, pled guilty to the lesser offense of attempt to commit aggravated sexual

battery, a class C felony.




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       A sentencing hearing was held on June 26, 1996. The proof at the hearing

revealed that the appellant, age 54, had no prior criminal history, a seventh grade

education, and a commendable work history as an automobile mechanic. The

appellant stated that he was in good physical and mental health and had never

abused either alcohol or drugs. The appellant is the father of two sons and three

daughters, all presently adults, born of his thirty year marriage to his first wife,

Juanita, who passed away in 1992. At the time of the sentencing hearing, the

appellant was married to his second wife, Patsy. Various witnesses confirmed the

fact that the appellant is well respected within his community and actively involved in

his church.



       Despite his many commendable traits and character references, the

appellant admitted to the unlawful sexual contact with his seven year old

granddaughter. In an attempt to justify his conduct, he explained that the victim

began “rubbing his penis and kissing on him, so he just returned her love.” He

added that this conduct occurred on one other occasion. The appellant also

confessed to other similar incidents of sexual contact involving two of his daughters

and a niece, during the girls’ adolescence. In a victim impact statement attached to

the presentence report, the appellant’s granddaughter stated that she is “afraid of

Papaw that he might hurt me for telling mom.” The victim added that she “is mad

because he said I led him on,” and wanted the appellant to “go to jail.” At the

sentencing hearing, the mother of the victim, the appellant’s daughter, testified that

she had forgiven her father and that she was not opposed to probation.



       A court ordered “Psycho Sexual Evaluation” of the appellant was completed

on June 14, 1996, by a private non-profit agency to determine “the least restrictive

treatment setting which can effectively reduce the risk of further sexual acting out.”

Results from one portion of the evaluation indicated that the appellant was “most

aroused by males eight years old followed by male adults then males four years old


                                           3
and females twelve years old.” However, the appellant’s “most intense arousal

response” was to “females twelve years old followed by females sixteen years old,

then adult males and females.” On the Adler Sexual Interest Inventory, the

appellant revealed that, at eight or nine years old, he had been anally penetrated by

his older brother. The appellant admitted to exposing himself, over a period of

fifteen years, to female adults and children, to sexually touching the present victim

on two separate occasions, and to sexually touching two of his daughters and a

niece on numerous occasions.



         During a clinical interview, the appellant explained, when questioned about

his history of deviant sexual behavior, that he “does not believe he has a problem.”

He blames “the Devil for exploiting his weakness.” “The Devil has done this

because [he] is trying to live his life for God.” However, antithetic to this explanation,

the appellant reported that he molested his granddaughter because “he had lost his

wife and had no companionship.” Furthermore, the appellant “demonstrated no

empathy or understanding of how his offense has hurt his victim.” Based on the

results of the psychological testing, the evaluation team, comprised of counselors

and therapists, concluded that the appellant was in need of specialized sexual

offender treatment, that he is a “very high risk to continue sexually acting out,” that

the appellant “should not have any contact with minor children,” and that the

appellant “is considered to be a moderate risk to reoffend given his number of

victims and paraphilias [sic], his defensiveness, unwillingness to accept

responsibility for his sexual offending, and inability to honestly disclose sexual

offensive behavior.”1 (Emphasis added).




         1
        "Paraph ilia” is defined a s a prefe rence fo r or addic tion to unus ual sexu al practice s.
W EBSTER ’S T H I R D N EW INTERNATIONAL D ICTIONAR Y 1638, V O L . II (1981).

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                                        Analysis



       In his only issue, the appellant contends that the trial court erred by imposing

a sentence of total incarceration. When the manner of service of a sentence is

challenged on appeal, this court must conduct a de novo review with consideration

of the evidence received at the sentencing hearing, the presentence report, the

principles of sentencing and arguments as to sentencing alternatives, the nature

and characteristics of the criminal conduct involved, any statutory mitigating or

enhancement factors, any statement that the defendant made on his own behalf,

and the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.

§ 40-35-102, -103, -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim.

App. 1987). Although a de novo review is conducted by this court, the trial court’s

determination is presumed correct on appeal, conditioned upon an affirmative

showing in the record that the trial court properly considered relevant sentencing

principles. Tenn. Code Ann. § 40-35-401(d) (1990); State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). In the present case, the trial court properly considered such

principles. The presumption of correctness applies. Moreover, the appellant bears

the burden of showing that the sentence imposed by the trial court is improper. See

Tenn. Code Ann. § 40-35-210(b)(3) (1990).



                  A. Presumption Favoring Alternative Sentence

       The appellant first challenges the trial court’s decision that he is not entitled

to the statutory presumption that he is a favorable candidate for alternative

sentencing. To be eligible for the statutory presumption, three requirements must

be met. The appellant must be convicted of a class C, D, or E felony. Tenn. Code

Ann. § 40-35-102(6) (1994 Supp.). He must be sentenced as a mitigated or

standard offender. Id. And, the defendant must not fall within the parameters of

Tenn. Code Ann. § 40-35-102(5), i.e., the defendant cannot have a criminal history

evincing either a “clear disregard for the laws and morals of society” or “failure of


                                          5
past efforts at rehabilitation.” Id. The appellant’s agreement permitted him to plead

guilty to the lesser offense of attempt to commit aggravated sexual battery, a class

C felony. In exchange for his conviction of a lesser offense, he agreed to

classification as a range II offender, even though he had no prior criminal

convictions. The appellant claims that, contrary to his plea agreement, he is, in fact,

a standard offender.



         We are not persuaded by the appellant’s argument that he should be

permitted to receive the benefit of the bargain he has chosen while rejecting that

part which displeases him. Recently, our supreme court acknowledged the

longstanding principle that “a defendant can waive the range classification as part of

a negotiated guilty plea, to sentences in cases arising under the new Act.” State v.

Hicks, 945 S.W.2d 706, 708 (Tenn. 1997). The court held that such a sentence is

valid "when imposed as a result of a plea bargain agreement entered voluntarily

and knowingly." Id. The court added that, "where the parties negotiate in good faith

and there are no allegations of fraud or misfeasance, the parties are precluded from

attacking on appeal the agreed range imposed by the trial court." Id. at 708. Thus,

the appellant's knowing and voluntary guilty plea, absent any evidence of fraud or

bad faith on behalf of the State, waived any right of the appellant to later challenge

the legality of the sentence imposed by the trial court. In other words, once the

appellant agreed to be classified as a range II offender, he became a range II

offender for all purposes, including alternative sentencing. Hence, as a range II

offender, the appellant is not presumed to be a favorable candidate for alternative

sentencing. See, e.g., State v. Grigsby, No. 02C01-9507-CR-00184 (Tenn. Crim.

App. at Jackson, Jan. 15, 1997); State v. Wells, No. 03C01-9512-CC-00385 (Tenn.

Crim. App. at Knoxville, Nov. 27, 1996); State v. Armstrong, No. 01C01-9503-CC-

00097 (Tenn. Crim. App. at Nashville, Nov. 16, 1995). This contention is without

merit.




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                           B. Denial of Alternative Sentence

          Although the trial court strongly accredited the appellant’s lack of a criminal

record and the appellant’s favorable employment and social history, the court, in

denying any form of alternative sentencing, found that the results of the

psychological report, i.e., the appellant’s risk of reoffending, his long history of this

type of conduct, his unwillingness to accept responsibility for his conduct, and his

inability to honestly disclose his sexual offensive behavior, overwhelmingly indicate

that “[c]onfinement is necessary to protect society by restraining a defendant who

has a long history of criminal conduct.” See Tenn. Code Ann. § 40-35-103(1)(A)

(1990).



       With the presumption that the trial court’s determination is correct, we

conclude that the appellant has failed to carry his burden of establishing that he is

entitled to alternative sentencing. The trial court’s finding is more than adequately

supported by the record The appellant admitted to a long history of deviant sexual

behavior. This alone is sufficient to deny alternative sentencing. See State v.

Matthews, No. 03C01-9505-CR-00153 (Tenn. Crim. App. at Knoxville, May 1, 1996)

(affirming trial court’s denial of alternative sentence based upon defendant’s

numerous incidents of unprosecuted unlawful sexual contact). Additionally, the trial

court, properly recognizing that the “protection of society” is a fundamental concept

in the sentencing process, expressed its apprehension over releasing the appellant

into the community given the appellant’s verified propensity to reoffend. Moreover,

the proof discloses that the appellant was not truly remorseful for his actions, had a

strong sexual attraction to children, and was not being totally truthful with the court

or counselors. Consideration of the appellant’s poor prospects for rehabilitation as a

factor militating against an alternative sentence is also appropriate. See Matthews,

No. 03C01-9505-CR-00153.




                                            7
       After a de novo review of the record coupled with the presumption that the

decision of the trial court is correct, we conclude that the appellant has failed to

show his entitlement to a sentence other than total incarceration. Accordingly, the

judgment of the trial court is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:



___________________________________
JOHN H. PEAY, Judge



___________________________________
WILLIAM M. BARKER, Judge




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