          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE           FILED
                            APRIL, 1997 SESSION
                                                           July 11, 1997

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                    )
                                       )
                    Appellee,          )     No. 01C01-9606-CR-00251
                                       )
vs.                                    )     Wilson County
                                       )
JOHN P. PELFREY,                       )     Honorable J. O. Bond, Judge
                                       )
                    Appellant.         )      (Denial of Probation)



FOR THE APPELLANT:                     FOR THE APPELLEE:

COMER L. DONNELL                       JOHN KNOX WALKUP
District Public Defender               Attorney General & Reporter

KAREN CHAFFIN                          LISA A. NAYLOR
Assistant Public Defender              Assistant Attorney General
P. O. Box 888                          Criminal Justice Division
Lebanon, TN 37087                      450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       TOM P. THOMPSON, JR.
                                       District Attorney General

                                       ROBERT HIBBETT
                                       Assistant District Attorney General
                                       111 Cherry St.
                                       Lebanon, TN 37087


OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT,
JUDGE
                                    OPINION



             The defendant, John P. Pelfrey, pleaded guilty in the Wilson County

Criminal Court to rape, a Class B felony. Pursuant to a plea agreement, he

received an eight-year sentence as a Range I, standard offender. In this direct

appeal, the defendant challenges the trial court’s denial of probation.



             We affirm the judgment of the trial court.



             The defendant was indicted for the aggravated rape of Laurhenda

Clamon. According to the affidavit of complaint, the pair were in or near a hot tub

at a motel when the defendant struck her three times in face, cut off her clothes,

and forced her to perform oral sex while holding a knife to her throat.        The

defendant pleaded guilty to simple rape on December 15, 1995.



             The plea agreement document indicates that the defendant and the

prosecution had agreed to a Range I sentence of eight years. See Tenn. R. Crim.

P. 11(e)(1)(C). The document also contains the handwritten notation “Sentencing

hearing” written just below the portion of the form that states the agreed-upon

sentence. At the conclusion of the sentencing hearing, the trial judge denied the

defendant’s request for probation and ordered him to serve his sentence in the

Department of Correction.



             The defendant contends that the trial judge’s denial of probation was

capricious, arbitrary, and an abuse of discretion and that the trial judge did not

comply with the statutory requirements for finding enhancement and mitigating

factors. The state responds that the defendant has no right to appeal in this case


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because he agreed to an eight-year sentence in the plea bargain. On the merits,

the state contends that the record supports the denial of probation based on the

defendant’s prior criminal history and on the seriousness of the offense.



              First, we consider the state’s contention that this matter is not properly

before this court. We agree that, since the defendant accepted the eight-year

sentence as part of his plea bargain, he has no right to appeal the length of his

sentence, Tenn. R. App. P. 3(b); however, the defendant may appeal the manner

of its service. As the trial judge noted, the only purpose of the sentencing hearing

was to determine whether or not he would be incarcerated. Rule 3 (b), Tennessee

Rules of Appellate Procedure, provides that a defendant who enters a guilty plea

pursuant to a plea agreement may seek review of his sentence if the agreement

did not include the sentence or if the issue presented for review was not waived as

a matter of law by the plea.    Evidence in the record supports a conclusion that,

although the length of the sentence was determined by the plea bargain, the

manner of service was left to the determination of the trial court. Rule 3 states that

“[a] defendant may appeal as of right from an order denying or revoking probation

. . . .” Id. Nothing in the plea agreement waived the defendant’s right to appeal this

issue.



              Our function in reviewing a trial judge’s denial of probation is defined

by statute. The Criminal Sentencing Reform Act of 1989 provides that when

reviewing the granting or denial of probation the appellate court shall conduct a de

novo review on the record with the presumption that the determinations made by the

court from which the appeal is taken are correct. Tenn. Code Ann. § 40-35-

401(d)(1990). That presumption is “conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant facts


                                          3
and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991). The trial

judge, in this case, made a number of conclusory statements without making the

requisite factual findings. Therefore, we review the record without a presumption

of correctness. In our review, we must consider all the evidence, the presentence

report, the sentencing principles, counsels’ arguments, appellant’s statements, the

nature and character of the offense, and the potential for rehabilitation. Id.



              The defendant challenges the trial court’s denial of probation in light

of his eligibility. Although a defendant with a sentence of eight years or less is

eligible for probation, Tenn. Code Ann. § 40-35-303(a)(Supp. 1996), this defendant

is not presumed to be a favorable candidate for alternative sentencing options

because his conviction is for a class B felony. § 40-35-102(6). The defendant has

the obligation to establish that he is a suitable candidate for probation. § 40-35-

303(b); State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991). To meet that

burden, the defendant must demonstrate that probation will be in the best interest

of the public and the defendant and in the interests of justice. State v. Bingham, 910

S.W.2d 448, 456 (Tenn. Crim. App.) perm. app. denied (Tenn. 1995) (quoting State

v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). In this case, we find that

the defendant has not met his burden.



              A trial court may deny probation if it determines that confinement is

necessary to protect society from a defendant who has a history of criminal conduct,

is necessary to avoid depreciating the seriousness of the offense, would provide

an effective deterrent to others, or that less restrictive measures have frequently,

recently and unsuccessfully been applied to the defendant. Tenn. Code Ann. §40-

35-103(1)(A), (B), (C) (1990). In making its determination, a trial court should

consider the defendant’s criminal record, his social history, his present physical and


                                          4
mental condition, and his potential for rehabilitation. Stiller v. State, 516 S.W.2d

617 (Tenn.1974).    Lack of truthfulness is probative on the issue of amenability to

rehabilitation and is an appropriate factor to consider in granting or denying

probation. State v. Neely, 678 S.W.2d 48, 49 (Tenn.1984). Lack of repentance

and remorse are also permissible factors, State v. Pierson, 678 S.W.2d 905

(Tenn.1984), as are the defendant’s credibility and willingness to accept

responsibility for the offense. State v. Andrew H. Leone, No. 02C01-9206-CR

00148, slip op. at 3 (Tenn. Crim. App., Jackson, September 29, 1993).



             The record discloses that in this case the trial judge found that

confinement was necessary to protect the public from a defendant with a lengthy

criminal record, to avoid depreciating the seriousness of the offense, and to deter

potential rapists in similar situations.1 The defendant contends and we agree that

the record does not establish a need for deterrence. A trial court’s conclusion that

deterrence is required must be supported by evidence. See State v. Ashby, 823

S.W.2d 166, 170 (Tenn.1991). However, the record supports the trial court’s denial

of probation based on other factors.




             At the sentencing hearing, the defendant’s wife testified that, since his

last arrest, he had settled down and was working hard to be a good husband and

father to their child. A letter from an employer confirmed that he was a reliable,

hard-working employee. Unfortunately, the defendant’s history is not as positive.

He was twenty-seven years old at the time of the offense. He completed the eighth



      1
              The facts of the offense are not spelled out in the record.
However, the trial judge apparently considered the offense to be a kind of “date-
rape” in which a woman refuses to engage in sex with her companion and he
forces her to comply.

                                         5
grade but earned only three credits toward his high school diploma. Although at the

time of the sentencing hearing he was employed, his employment has been

sporadic at best. He has used marijuana since he was fourteen years old and was

under its influence when he committed the rape. He admits to drinking as much

as a case of beer a week but no longer uses any illegal substances.        His prior

criminal record includes a number of offenses related to the abuse of alcohol.2




             The defendant’s record indicates a problem with persistent substance

abuse and an inability to control his actions. At twenty-seven, he was not just an

irresponsible youth. His numerous experiences with the law should have provided

him with some insight into the unlawfulness of his behavior.         Despite those

experiences, he continued to re-offend until his behavior reached serious

proportions. Moreover, the trial judge’s opportunity to observe the defendant on the

stand may provide useful insights into an appropriate disposition of the case that

are not available in a written record. Ball v. State, 604 S.W.2d 65, 66 (Tenn. Crim.

App. 1979). Based on the facts before us, we cannot conclude that the defendant

would be amenable to rehabilitation in the community.



             The trial judge relied primarily upon the circumstances of the offense

to deny probation. Before the nature and circumstances of the offense can be used

as a ground for disallowing probation, the offense must be “especially violent,

horrifying, shocking, reprehensible, offensive or otherwise of an excessive or

exaggerated degree,” and the factor must outweigh all other factors that must be



      2
              The defendant has seven misdemeanor convictions on his record.
Since 1987, he has been convicted four times for being drunk and disorderly,
once for violation of an open container law, and once for driving under the
influence. The seventh misdemeanor conviction was for fishing without a license.

                                         6
considered. State v. Travis, 622 S.W.2d 529, 534 (Tenn.1981); State v. Bingham,

910 S.W.2d 448, 454 (Tenn. Crim. App. 1995). The trial judge referred specifically

to the fact that the defendant had struck the victim who apparently had been his

willing companion, that he had cut her clothes off, and that he had forced her to

submit by holding a knife to her throat. The facts in the record support the trial

court’s conclusion that the defendant committed an especially violent,

reprehensible, and offensive act and that this factor outweighs any factors that favor

a grant of probation.



              Upon our de novo review, conducted without a presumption of

correctness, we find that the defendant has not established that he is an appropriate

candidate for probation. In this case, confinement, not release into the community,

will serve ‘“the ends of justice and the best interest of both the public and the

defendant.”’ State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990),

(quoting Hooper v. State, 201 Tenn. 156, 162, 297 S.W.2d 78, 81 (1956). The trial

court did not err by refusing to grant probation.



              The defendant also complains that the trial court erred in its use of

enhancement factors. The sentencing range for a Range I offender convicted of a

Class B felony is eight to twelve years. The defendant and the prosecution agreed

to a Range I sentence of eight years. The trial court accepted the plea and

sentenced the defendant to serve eight years as a Range I offender.              The

defendant received the minimum sentence. Any discussion of enhancement factors

at the sentencing hearing had no bearing upon the length of the sentence.

Although enhancement factors are appropriate considerations in determining the

manner of service as well as the length of the sentence, Tenn. Code Ann. § 40-35-

210(b)(5) (Supp. 1996), we have determined, supra, that the service of the sentence


                                          7
through confinement is justified under Sections 40-35-103 (A), (B), -210(b)(4).

Having so held, it is unnecessary to consider the appropriateness of enhancement

factors on the issue of the manner of service.




                                                 _________________________
                                                 CURWOOD WITT, Judge



______________________________
GARY R. WADE, Judge



______________________________
DAVID H. WELLES, Judge




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