State v. Godsey ( 2010 )


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  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE             FILED
    OCTOBER 1997 SESSION
    January 6, 1998
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    STATE OF TENNESSEE,                 *     C.C.A. # 03C01-9701-CR-00032
    Appellee,              *     CARTER COUNTY
    VS.                                 *     Hon. Arden L. Hill, Judge
    ANTHONY CHARLES GODSEY,             *     (Sexual Battery)
    Appellant.             *
    For Appellant:                      For Appellee:
    Robert Y. Oakes                     John Knox Walkup
    Office of the Public Defender       Attorney General and Reporter
    First Judicial District
    Main Courthouse                     Georgia Blythe Felner
    Elizabethton, TN 37643              Counsel for the State
    450 James Robertson Parkway
    Gerald L. Gulley, Jr.               Nashville, TN 37243-0493
    Attorney
    P.O. Box 1708                       Kenneth C. Baldwin
    Knoxville, TN 37901-1708            Assistant District Attorney General
    (on appeal only)                    900 East Elk Avenue
    Elizabethton, TN 37643
    OPINION FILED:__________________________
    AFFIRMED
    GARY R. WADE, JUDGE
    OPINION
    The defendant, Anthony Charles Godsey, was indicted by a Carter
    County Grand Jury for aggravated sexual battery. Pursuant to a plea agreement,
    the defendant entered a guilty plea to sexual battery, a Class E felony. 
    Tenn. Code Ann. § 39-13-505
    . The trial court approved a Range I, five-year sentence but
    denied the defendant's application for probation.1
    In this appeal of right, the defendant contends that the trial court
    should have granted probation, split confinement, or Community Corrections. We
    find no error and affirm the judgment of the trial court.
    On the evening of August 3, 1995, the defendant delivered some
    firewood to the residence of his friend, Lawrence "Buck" Hite. Hite's ex-wife, Nellie,
    and her two minor daughters were present. After drinking several beers with Hite,
    the defendant "laid down on the couch like on numerous occasions" to spend the
    night. During the early morning hours of the next day, the defendant went to the
    bed of the eight-year-old victim, "pulled down her panties, kissed her around her
    vagina, and made digital penetration...." When the victim began to cry, the
    defendant left her bedroom. Later, the victim told her grandmother who, in turn, told
    Ms. Hite. A physical examination of the victim at Northside Hospital indicated sexual
    abuse.
    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
    1
    A Ran ge I sente nce for a Class E felony is one to two years ; a Rang e III senten ce is four to
    six years. 
    Tenn. Code Ann. § 40-35-112
    . Our supreme court approved such hybrid sentences as
    long as th ey are the p roduct o f a "plea ag reem ent enter ed volun tarily and kno wingly." Hicks v. State,
    945 S.W .2d 706 ( Tenn . 1997).
    2
    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). 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
    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 application 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 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
    (a), (b).
    3
    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 beneficial to the defendant yet serve legitimate societal
    aims. State v. Griffith, 
    787 S.W.2d 340
    , 342 (Tenn. 1990). That a defendant meets
    the minimum requirements of the Community Corrections Act of 1985, however,
    does not mean that he is 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).
    Subsection (2) would initially exclude the defendant from receiving a
    Community Corrections sentence because sexual battery is a "crime[] against the
    person" codified in "title 39, chapter 13, parts 1-5." See Dwight Leatherwood v.
    4
    State, No. 113 (Tenn. Crim. App., at Knoxville, Oct. 4, 1990). He is possibly eligible,
    however, under the special needs provision of the Act, which allows some
    individuals who commit 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 1989 Act does provide 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). And, while we
    acknowledge that de novo appellate review does not relieve the trial judge from
    compliance with the provisions of § 40-35-209(c), we are nonetheless able to
    conclude that the record is adequate to support the denial of an alternative
    sentence.
    The defendant, thirty-one years of age, has an eleventh grade
    education and has worked as a roofer. An alcoholic who has drunk heavily since
    the age of sixteen, the defendant has stated that he is "willing to do whatever is
    necessary to try to treat" his problem with alcohol. The defendant provides little in
    the way of support for his only child, a thirteen-year-old daughter. He is divorced
    and lives with his parents.
    The presentence report reveals that the defendant has had a number
    of brushes with law enforcement since the time he was nineteen years old. The
    record establishes that the defendant had eleven prior convictions for public
    intoxication, and prior convictions for driving under the influence, destruction of
    private property, driving on an expired license, driving on a revoked license, reckless
    burning, resisting arrest, and disorderly conduct. After being placed on an intensive
    5
    probation program in 1990, the defendant was convicted of driving under the
    influence within a year thereafter. The defendant became intoxicated while on work
    release and took marijuana into the county jail; that resulted in an additional thirty-
    day incarcerative sentence and another year of probation. In 1995, the defendant
    was convicted of reckless burning, resisting arrest, and disorderly conduct; he
    committed sexual battery while on probation for those offenses.
    While stating a belief that the defendant was not a "full blown"
    pedophile, the trial court determined that the defendant's continuous abuse of
    alcohol presented a significant risk to others. It denied probation upon the basis that
    conditional release from incarceration had not worked in the past. The defendant's
    prior criminal history was a significant factor in the denial. The trial court also
    pointed to deterrence, both individual and general. It concluded that the victim had
    been "injured for the rest of her life," based upon testimony by her mother that she
    suffered both physical and psychological consequences from the assault.
    In our view, the defendant's prior criminal history militated against the
    grant of probation. Although an important sentencing consideration is to impose the
    least severe punishment necessary, the grant of probation might tend to depreciate
    the seriousness of this offense. 
    Tenn. Code Ann. § 40-35-103
    (1)(B). His failure to
    rehabilitate after a number of previous jail terms and periods of probation indicates a
    lack of amenability for rehabilitation. Measures less restrictive than confinement
    have been unsuccessful. 
    Tenn. Code Ann. § 40-35-103
    (1)(C). The number of the
    prior offenses as much their gravity tend to support the denial of probation or a
    sentence of split confinement. See 
    Tenn. Code Ann. § 40-35-306
    .
    6
    Deterrence, of course, can rarely be the sole reason for the denial of
    an alternative sentence. State v. Cummings, 
    868 S.W.2d 661
    , 668 (Tenn. Crim.
    App. 1992); State v. Hartley, 
    818 S.W.2d 370
    , 375 (Tenn. Crim. App. 1991). 2 Yet
    sentencing requires an individualized, case-by-case approach. State v. Moss, 
    727 S.W.2d 229
    , 235 (Tenn. 1986). That method of analysis necessarily embodies the
    exercise of discretion at the trial court level. See State v. Fletcher, 
    805 S.W.2d 785
    (Tenn. Crim. App. 1991). Thus, there is a sound basis for the presumptive
    correctness standard of appellate review:
    It is not the policy or purpose of this Court to place trial
    judges in a judicial strai[gh]t-jacket in this or any other
    area, and we are always reluctant to interfere with their
    traditional discretionary powers.
    State v. Ashby, 
    823 S.W.2d 166
    , 171 (Tenn. 1991). That principle prevails here on
    the matter of probation, split confinement, and Community Corrections. In our view,
    the trial court acted within its discretion in denying an alternative sentence.
    Accordingly, the judgment is affirmed.
    ________________________________
    Gary R. Wade, Judge
    CONCUR:
    _____________________________
    David H. Welles, Judge
    ____________________________
    Jerry L. Smith, Judge
    2
    Deterrence is a factor in every criminal case and, therefore, the statutory denial of probation
    because of deterrence, alone, must be supported by evidence indicating some special need or
    consideration relative to that jurisdiction which would not be addressed by the normal deterrence
    inheren t in any crim inal penalty. See State v. Jenkins, 733 S.W .2d 528, 535 (Tenn. Crim . App. 1987);
    State v. Vance, 
    626 S.W.2d 287
    , 290 (Tenn. Crim. App. 1981). This standard appears in section 40-
    35-103(1)(B) of Tenn. Code Ann., which provides for confinement if it is "particularly suited to provide
    an effec tive deterre nce to oth ers likely to co mm it similar offe nses."
    7