            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE             FILED
                          JUNE SESSION, 1999         August 9, 1999

                                                             Cecil Crowson, Jr.
                                                            Appellate C ourt
                                                                Clerk


STATE OF TENNESSEE,           )
                              )    No. 03C01-9711-CC-00501
      Appellee                )
                              )    GRAINGER COUNTY
vs.                           )
                              )    Hon. Ben W. Hooper II, Judge
PAUL J. SWANSON,              )
                              )    (Sentencing)
      Appellant               )



For the Appellant:                 For the Appellee:

Lu Ann Ballew                      Paul G. Summers
Asst. Public Defender              Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725                Clinton J. Morgan
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493


                                   Alfred C. Schmutzer, Jr.
                                   District Attorney General

                                   Michael Gallegos
                                   Asst. District Attorney General
                                   Sevier County Courthouse
                                   Sevierville, TN




OPINION FILED:

AFFIRMED WITH MODIFICATION OF JAIL CREDIT



David G. Hayes
Judge
                                            OPINION



       The appellant, Paul J. Swanson, appeals the sentencing decision of the

Grainger County Criminal Court following his guilty pleas to three counts of

attempted aggravated sexual battery, class C felonies. Pursuant to the terms of the

negotiated plea agreement, the appellant agreed to an effective six year sentence.

The agreement further provided that the manner of service of the sentences was to

be submitted to the trial court for determination. The trial court ordered total

confinement. The appellant appeals this decision contending that the trial court

erred in failing to grant alternative sentences and in failing to credit the appellant

with time spent in a residential sexual offender treatment center prior to entry of his

guilty pleas.



       After review of the record, we affirm the judgment of the trial court; however,

finding the appellant entitled to additional pretrial credit, the judgment of conviction

is modified to reflect an additional sentence credit of forty-nine days.




                                         Background



       On May 28, 1996, and April 28, 1997, juvenile petitions were filed against the

appellant alleging that he had committed the offenses of sexual battery. The

alleged minor victims were members of his family.1 The allegations charged that the

appellant had sexual contact with the three minor children, including touching of the

vaginal area of the minor female and touching of the penile area of the two minor

male victims. On August 25, 1996, the appellant voluntarily entered Hermitage Hall,



       1
         The appellant was seventeen years of age in 1996. The victims were ages five, nine,
and nine respec tively at the time the petitions were filed.

                                              2
a residential sex offender treatment program for juveniles located in Nashville.



         On June 27, 1997, the juvenile court judge ordered that a psychological

examination of the appellant be completed by Cherokee Health Systems to

determine the appellant’s competency and mental condition at the time of the

alleged offenses. The examination was conducted on July 17, 1997. Dr. Jeffery

Munson, a clinical psychologist employed with Cherokee Health Systems,

determined that the appellant was competent to stand trial and that a defense of

insanity could not be supported. Specifically, Dr. Munson concluded that, although

the appellant “was suffering from a mental illness, . . . his mental status was not

such as [to] justifiably prevent his knowing the wrongfulness of his acts.”2 Based in

part on the results of this examination, the juvenile court granted the State’s motion

to transfer the case to the Criminal Court. On August 14, 1997, one day prior to the

appellant’s nineteenth birthday, he was transferred from the custody of Hermitage

Hall to that of the Grainger County Sheriff.3 Subsequently, three criminal

informations were filed in the Grainger County Criminal Court on September 16,

1997, charging the appellant with the attempted aggravated sexual battery of three

minor children. On this same date, the appellant entered guilty pleas to these

charges and a hearing was held to determine the manner of service of the

negotiated effective six year sentence.



         The proof at the sentencing hearing revealed that the nineteen year old

appellant was a slow learner who had spent his entire educational career in special

education programs. Notwithstanding this placement, psychological testing of the

appellant revealed that his IQ was 83, below average but not mentally retarded.

Documentation generated during his one year stay in the Hermitage Hall sexual


         2
         Dr. Munson explained at the subsequent sentencing hearing that the mental illness
suffered by the appellant was that the appellant could be diagnosed with pedophilia.

         3
          The juvenile court set bond at $3000 and provided that, as a condition of bond, the
app ellant mu st be imm ediat ely tran spo rted to The Pine s Re side ntial T reatm ent C ente r in
Portsm outh, Virgin ia, for adm ission into a n adult res idential sex offende r treatm ent prog ram .

                                                     3
offender treatment program indicates that the appellant “has a history of sexually

offensive behavior since . . . the age of thirteen.” Indeed, while in treatment, the

appellant admitted to having inappropriate sexual contact with thirteen known

victims, all minors, both male and female. One of the known victims was also a

resident at Hermitage Hall. Ashley MacLachlan, a clinical therapist at Hermitage

Hall, opined that the appellant “continues to need a 24-hour, supervised, structured

setting in which his behaviors can be monitored. He is at significant risk to sexually

reoffend, and, if placed into the community, it is likely that he will reoffend and target

young children.” Her treatment of the appellant also revealed his tendency to justify

his behavior by his misfortune and mistreatment by other individuals, including his

own sexual abuse, and his belief that he will not get caught. This assessment also

places the appellant at a significant risk for reoffense. Finally, Ms. MacLachlan

concluded that the appellant was not responding to the normal approaches toward

the treatment of adolescent offenders and was in need of a more intensive adult-

oriented treatment program.4



         The appellant expressed his awareness of the serious nature of his offenses

and his desire to return with his mother to her home in Michigan and seek outpatient

counseling. He explained that the incidents were caused by flashbacks of his own

sexual abuse. The appellant denied that he reported his abuse of other minor

victims during his counseling sessions at Hermitage Hall. He also refutes other

specific findings and observations made by Ms. MacLachlan during his treatment

period. The appellant described the abuse inflicted upon him by other inmates while

being housed in both the Grainger and Hamblen County jails. 5 This continuous



         4
          There are currently no residential sex offender treatment programs for young men over
the age of nineteen in the state of Tennessee. The appellant applied to The Pines Treatment
Cen ter in P ortsm outh , Virgin ia. Th e cos t of on e year ’s trea tme nt at th is cen ter is a ppro xim ately
$118, 625. The lack of the appellant’s finances prohibit consideration of this treatment option.

         5
          The appellant related that he had endured incidents of abuse including being beaten up
by fellow inmates, being pummeled with cans of hot water, bars of soap, and wet paper rolls,
being forced to perform oral sex, and being forced to relinquish his $10/week allowance provided
by his f am ily.

                                                        4
abuse has made him even more fearful of incarceration in the Department of

Correction.



       After considering this evidence along with testimony from the appellant’s

mother and father, the trial court concluded:

       . . .this is a matter . . . where I am of the opinion that I have no choice
       but to order you to serve the six year sentence. Looking at your record
       that’s been accumulated thus far, you have a serious problem, and I’m
       certain that you are sorry for what you’ve done; I don’t question that.
       But the problem has to be addressed; it’s got to be dealt with. There’s
       no one in the private sector to deal with it, probably because of the
       financial burden that is associated with private treatment. I’m not sure
       that the State of Tennessee is capable of dealing with it . . . but it is the
       only thing that’s left.

       The worst thing that I could do for you, and possibly unknown others,
       would be to place you on probation. I don’t think that you could control
       whatever impulses -- you know, that you have, and it’s for that reason
       that I do sentence you to serve six years in the Tennessee Department
       of Correction.

Additionally, finding no legal authority to do so, the court also denied the appellant’s

request that he be given three hundred and fifty-five days pretrial credit for time

spent at Hermitage Hall.



                                        Analysis



       When a defendant challenges the manner of service of his sentence, this

court must conduct a de novo review with the presumption that the determination

made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1997). This

presumption is applied if the record shows that the trial court properly considered

relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Moreover, the appellant maintains the burden of showing that the sentence imposed

by the trial court is improper. Sentencing Commission Comments, Tenn. Code Ann.

§ 40-35-401(d).




                                          5
       Again, the appellant asserts that the trial court erred in ordering that the

appellant serve his sentences in the Department of Correction. Specifically, the

appellant contends that he should have been granted total probation. In support of

his argument, the appellant avers that a sentence of total confinement is not

appropriate because (1) he has no prior criminal history, (2) no evidence was

presented to show confinement was necessary to avoid depreciating the

seriousness of the offense, and (3) he had never previously been provided adult sex

offender treatment. See Tenn. Code Ann. § 40-35-103(1)(1997).



       Upon our de novo review, we conclude that, although the appellant is a range

I standard offender of class C felonies, he has a criminal history evincing a “clear

disregard for the laws and morals of society” and “failure of past efforts at

rehabilitation.” Tenn. Code Ann. § 40-35-102(5)(1997). The record is replete with

the appellant’s admissions of his history of sexual abuse toward minor children and

with observations by others that the appellant has not cooperated with his treatment

program and has in fact relapsed as evidenced by his acts of deviant behavior

committed while in the program. Accordingly, he is not presumed to be a favorable

candidate for alternative sentencing and bears the burden of showing his

entitlement to an alternative sentence. See Tenn. Code Ann. § 40-35-102(5) & (6);

Tenn. Code Ann. § 40-35-401(d).



       The appellant has failed to carry his burden of establishing his entitlement to

any alternative sentence, including probation. Again, the record shows that the

appellant has engaged in deviant behavior for the past six years. Despite his

assertions to the contrary, the testimony of Ashley MacLachlan demonstrated that

he is unwilling to accept responsibility for his actions and has shown unwillingness to

participate in a treatment program. The majority of the incidents of abuse were

committed against younger family members, including his own brothers and sisters,

thus, abusing a position of private trust. See State v. Zeolia, 928 S.W.2d 457, 461


                                          6
(Tenn. Crim. App. 1996). He committed similar acts of abuse while in the care of a

treatment facility. Moreover, the appellant was diagnosed as being very likely to

reoffend. See Tenn. Code Ann. § 40-35-103(1)(A)-(C). The trial court, recognizing

these factors in addition to the appellant’s urgent need for sexual offender

treatment, determined that, based upon the unavailability of private funding for

inpatient supervised treatment, the only viable sentencing option in the best interest

of both the appellant and society in general was that of total confinement. See

generally Tenn. Code Ann. § 39-13-701 et seq. (1997) (Tennessee Standardized

Treatment Program for Sex Offenders Act); Tenn. Code Ann. § 40-35-503(c) (1997)

(parole eligibility for convicted sex offenders). We, also, can reach no other

conclusion. A sentence of total confinement is appropriate. This issue is without

merit.



         The appellant also asserts that he is entitled to pretrial sentence credit for

time spent in the youth sexual offender treatment program at Hermitage Hall.6 In

denying the appellant’s request, the trial court noted that the appellant voluntarily

committed himself to such treatment and was under no obligation by the court to do

so. As such, the court found no authority under which the court could grant credit

for the time at Hermitage Hall.



         Credit for pretrial detention is permitted

         to allow the defendant credit on the sentence for any period of time for
         which the defendant was committed and held in the city jail or juvenile
         court detention prior to waiver of juvenile court jurisdiction, or county
         jail or workhouse, pending arraignment and trial. The defendant shall
         also receive credit on the sentence for the time served in the jail,
         workhouse or penitentiary subsequent to any conviction arising out of
         the original offense for which the defendant was tried.




         6
          The appellant remained in the care of Hermitage Hall from August 25, 1996, until August
14, 1 997 , whe n the juven ile cou rt tran sfer red h im to the c usto dy of th e Gr ainge r Cou nty Sh eriff’s
Department. The trial court correctly credited the appellant’s sentences with time served in the
county jail prior to his conviction.

                                                       7
See Tenn. Code Ann. § 40-23-101(c) (1997).          The awarding of these credits is

mandatory. State v. Henry, 946 S.W.2d 833, 834 (Tenn. Crim. App. 1997) (citing

Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965)). Our supreme court has

interpreted the statute to mean that a prisoner is entitled to pretrial credit whenever

involuntarily committed, by a state actor, to a place of confinement, including, but

not limited to county jails, juvenile detention centers, and mental institutions. See

Marsh v. Henderson, 424 S.W.2d 193, 196 (Tenn. 1968). We can find no basis to

exclude institutional commitment to a legitimate sexual offender treatment program

from consideration for pretrial sentence credit. Thus, the essential query in

determining whether the appellant is entitled to pretrial credit for time spent at

Hermitage Hall focuses upon the voluntary/involuntary nature of his commitment.



       The appellant argues that his commitment “was a result of the charge taken

against him in Juvenile Court and was in lieu of state custody. . . had he not

submitted himself into residential treatment, he most likely would have been

committed into state custody with the Department of Children’s Services.” W e reject

this position; rather, we concur with the trial court’s finding that the appellant’s

placement in the treatment program at Hermitage Hall was completely voluntary on

his behalf.



       As an alternative position, the appellant asserts that he is at least entitled to

credit from June 27, 1997, until his transfer to the Grainger County Jail on August

14, 1997. In support of this argument, the appellant refers to the order of the

juvenile court judge stating that the appellant “is to be held for Grainger County. He

is not to be released to go anywhere until he has had a bond hearing.” This order of

the juvenile court expressly “confines” the appellant to Hermitage Hall pending a

bond hearing; thus, the order effectively transforms the appellant’s initial voluntary

commitment to an “involuntary” detention. Accordingly, we conclude the appellant




                                           8
qualifies for pretrial credit from June 27, 1997, until his release therefrom on August

14, 1997.



       We modify the trial court's judgment to reflect that the appellant is entitled to

an additional forty-nine days credit on his sentence for time served at Hermitage

Hall prior to his prison incarceration. As modified, the judgment of the trial court is

affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:


__________________________________
JOHN H. PEAY, Judge



__________________________________
JOHN EVERETT W ILLIAMS, Judge




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