State v. Daniel Norris ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1999 SESSION
May 4, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. No. 03C01-9803-CR-00111
Appellee, * SULLIVAN COUNTY
VS. * Hon. R. Jerry Beck, Judge
DANIEL NORRIS, * (Sentencing)
Appellant. *
For Appellant: For Appellee:
Julia A. Martin John Knox Walkup
P.O. Box 426 Attorney General and Reporter
Knoxville, TN 37901-0426
(on appeal) Elizabeth B. Marney
Assistant Attorney General
Terry L. Jordan 425 Fifth Avenue North
Assistant Public Defender Second Floor, Cordell Hull Building
266 Blountville Bypass Nashville, TN 37243
Blountville, TN 37617
Teresa Murray-Smith
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617
OPINION FILED:__________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Daniel Norris, entered a plea of guilt to attempted rape
of a child, a Class B felony. Tenn. Code Ann. §§ 39-12-101, -107(a), & 39-13-522.
The trial court imposed a Range I sentence of eight years. The single issue for
review is whether the trial court erred by denying an alternative sentence.
We affirm the judgment of the trial court.
In March of 1997, the defendant engaged in consensual sexual
intercourse with the twelve-year-old victim, whom he had met at a bowling alley.
The incident occurred at the victim's residence while her mother was not at home.
Although initially charged with rape of a child, the state reduced the charge against
the defendant to attempted rape of a child.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
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nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's request for probation
are the circumstances of the offense, the defendant's criminal record, social history,
and present condition, and the deterrent effect upon and best interest of the
defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or E felonies
are, of course, presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. §
40-35-102(6). With certain statutory exceptions, none of which apply here,
probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). The ultimate
burden of establishing suitability for probation, however, is still upon the defendant.
Tenn. Code Ann. § 40-35-303(b).
At the sentencing hearing, the defendant's mother Shirley Ann Boyd,
testified that he could reside with her if he were granted an alternative sentence.
While acknowledging that the defendant had failed to comply with conditions of
probation for an earlier sentence, she promised to try to help the defendant attend
meetings and otherwise conform to any conditions of release. Ms. Boyd testified
that the defendant might be able to obtain employment with his former employer,
Piccadilly Restaurant.
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The defendant, twenty-one years old at the time of sentencing, has a
history of misdemeanor convictions, including assault. He has a lengthy juvenile
record. At the sentencing hearing, he claimed that he was unaware that the victim
was under thirteen years of age when he met her. He maintained that he was
willing to undergo treatment if granted an alternative sentence and that he believed
he could obtain employment with his former employer. He stated that eight months
of incarceration had taught him to "think more" before he acted. The defendant
admitted that he lost his job at Piccadilly because he had become involved in an
argument in the shopping mall. In consequence, he was barred from the premises.
He testified that he drank five or six beers per day and on occasion used marijuana.
Although he participated briefly in a substance abuse treatment program as a
juvenile, the defendant has not done so since reaching adulthood. He has several
prior alcohol-related convictions and acknowledged having "a tiny bit" of a
substance abuse problem.
Henry Bobletts testified that he was with the defendant and the victim
on the evening of the offense. He stated that, while the victim claimed to be
eighteen years old, she appeared to be as much as twenty.
The trial court ordered a risk assessment to evaluate the defendant's
propensity to reoffend. During the interview with Counseling and Consultation
Services, Inc., the defendant admitted to having exposed his genitals to a stranger
in the past. The reporter concluded that the defendant's risk to reoffend was within
the low to moderate range. The defendant received a low score in his ability to
recognize his problem and in his ability to understand in what manner he had
harmed the victim. The reporter recommended as follows:
1. [The defendant] is considered to be a low-moderated
risk to re-offend. Without sufficient interventions which
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limit his access to sexually act out, it is very likely that
[he] will continue to sexually act out.
2. [The defendant] presently is a fair candidate for
treatment at this time. His primary sexually offensive
behavior is child molestation[,] which Specialized Sex
Offender Treatment has demonstrated success. His
other sexual offending behaviors, exposing [himself], is
more difficult to treat.
3. The level of therapeutic intensity needed to
adequately address [the defendant's] sexual offending is
considered low-moderate. Thus, it is recommended that
he be treated in an out-patient treatment program which
specializes in sexual offending.
4. [The defendant] will require intensive supervision in
the community. This would include Polygraph
Examinations and high level of accountability to
Probation, Parole and his Treatment Team. He would
need to engage a significant individual (family/ally) in his
treatment process.
According to the pre-sentence report, the defendant, who completed
the ninth grade, began using alcohol at the age of fourteen. He was considered an
alcohol abuser at the time of his incarceration. He also admitted to past use of
speed and marijuana. The defendant has worked for two to six months at a time in
the food service industry. He has a lengthy adult criminal record, including
misdemeanor convictions for public intoxication, driving on a revoked license, driving
on a suspended license, theft up to $500, possession and distribution of intoxicating
liquors by a person under twenty-one, assault, disorderly conduct, and a number of
traffic offenses. As a juvenile, the defendant appeared in juvenile court for truancy,
larceny, breaking and entering, destruction of public property, contempt of court,
trespassing, and assault. His criminal history as both a juvenile and an adult
suggests an unwillingness to adhere to the terms of probation. In 1992, the juvenile
court placed him in a mental health and substance abuse treatment program. After
two months of disruptive behavior, including inhaling gasoline, threatening the staff
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and other residents with violence, and five reported sexual encounters with resident
females, the defendant was discharged from the program.
At the conclusion of the sentencing hearing, the trial court concluded
that the defendant was a low to moderate risk to reoffend. While determining that
the defendant, although youthful, had a "long history of petty offenses," the trial
court also noted the defendant's poor academic performance, his history of alcohol
abuse, and his use of illegal drugs. His social history was characterized as "not
good" and his work history as "sporadic." The trial court ruled that the defendant's
juvenile record, described as "extremely negative," indicated his inability to "act
properly." While observing that the victim's mother did not oppose an alternative
sentence, the trial court denied probation and refused to consider community
corrections, characterizing the offense as "violent."
The defendant contends that the trial court failed to make adequate
findings and conclusions, failed to properly consider the defendant's potential for
rehabilitation, and failed to consider treatment within the community under Tenn.
Code Ann. § 40-36-106(c). The 1989 Act provides that the record of the sentencing
hearing "shall include specific findings of fact upon which application of the
sentencing principles was based." Tenn. Code Ann. § 40-35-209(c). The trial court
did not state a statutory basis for denial of probation. Nonetheless, the factual
determinations of the trial court and other portions of the record are adequate to
support the denial of probation.
While an eight-year sentence does not disqualify the defendant from
probation, he is not presumed to be a favorable candidate for alternative sentencing
because he was convicted of a Class B felony. Tenn. Code Ann. § 40-35-102(6).
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Confinement is often necessary to protect the public from the conduct of the
defendant, to avoid depreciating the seriousness of an offense or to provide a
deterrent to others likely to commit a similar offense, or because measures less
restrictive have recently or frequently been applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103(1). The record here supports the trial court's
conclusion that the defendant was not amenable to rehabilitation due to his prior
criminal convictions, a history of probation violations, and an extensive juvenile
record. His social, employment and work history are poor.
A lack of candor may also militate against a grant of probation. State
v. Bunch, 646 S.W.2d 158 (Tenn. 1983). Furthermore, acceptance of responsibility
is often an important first step towards a rehabilitation. The mental health
evaluation indicated that the defendant had neither taken full responsibility for his
actions nor could he comprehend how his actions had affected the victim. In
addition, the defendant, who admitted to only "a tiny bit" of a substance abuse
problem, has not yet acknowledged the full extent of his alcohol abuse. While he
maintained that he had not known the actual age of the victim, he stipulated
otherwise at the plea submission hearing. Finally, the defendant has not
demonstrated any basis upon which to conclude that he is a favorable candidate for
probation.
Next, the defendant contends that the trial court erred by refusing to
consider a sentence within the community corrections program. The purpose of the
Community Corrections Act of 1985 was to provide an alternative means of
punishment for "selected, nonviolent felony offenders in front-end community based
alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The Community
Corrections sentence provides a desired degree of flexibility that may be both
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beneficial to the defendant yet serve legitimate societal aims. State v. Griffith, 787
S.W.2d 340, 342 (Tenn. 1990). Even in cases where the defendant meets the
minimum requirements of the Community Corrections Act of 1985, the defendant is
not necessarily entitled to be sentenced under the Act as a matter of law or right.
State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders
are eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a) (emphasis added). Subparts (a)(2) and (3) above
disqualify the defendant because attempted rape of a child is classified as an
“offense against the person.” See Tenn. Code Ann. § 39-13-505; see State v.
Boston, 938 S.W.2d 435, 438 n.5 (Tenn. Crim. App. 1996); State v. Clessie T. Jaco,
No. 01C01-9802-CC-00091, slip op. at 9 (Tenn. Crim. App., at Nashville, Dec. 21,
1998), app. for perm. to appeal filed (Feb. 18, 1999); State v. Leonard Eugene
Grant, No. 03C01-9212-CR-00441, slip op. at 4 (Tenn. Crim. App., at Knoxville, July
22, 1993). Because the offense involves sexual penetration, the defendant's crime
is considered "violent." See Tenn. Code Ann. § 40-36-102(12). The defendant is
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possibly eligible, however, under the "special needs" provision of the Act, which
allows some individuals who commit violent crimes or crimes against the person to
be placed on Community Corrections if they have special needs arising from mental
health problems for which treatment is available. Tenn. Code Ann. § 40-36-106(c).
The defendant, who would require intensive supervision, was described as a "fair"
candidate for out-patient treatment program specializing in sexual offending. Yet he
has a "significant" alcohol and drug abuse problem, as evidenced by mental
evaluation and the number of prior convictions and charges which were alcohol
related. The seriousness of the criminal charges continues to escalate. The
probation violations demonstrate his inability to abide by conditions of release to the
community. Based on these factors, we conclude that the defendant is not a
favorable candidate for community-based treatment under the special needs
provision. In our view, incarceration is warranted.
Accordingly, the judgment is affirmed.
______________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_______________________________
James Curwood W itt, Jr., Judge
_______________________________
Norma McGee Ogle, Judge
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