State v. Harrill ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE 1998 SESSION
September 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 03C01-9708-CC-00365
Appellee, )
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.
CHARLES HARRILL, ) JUDGE
)
Appellant. ) (Denial of Alternative Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
JULIE A. MARTIN JOHN KNOX WALKUP
P.O. Box 426 Attorney General & Reporter
Knoxville, TN 37901-0426
(On Appeal) GEORGIA BLYTHE FELNER
Asst. Attorney General
GERALD RUSSELL John Sevier Bldg.
117 E. Harper Ave. 425 Fifth Ave., North
Maryville, TN 37801 Nashville, TN 37243-0493
(At Trial)
MIKE FLYNN
District Attorney General
363 Court St.
Maryville, TN 37804
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted for rape, a Class B felony. He pled guilty and
after a hearing, was sentenced to eight years as a Range I standard offender in the
Department of Correction. The defendant now appeals, arguing that the trial court should
have granted him alternative sentencing. We affirm the defendant’s sentence.
The defendant, a forty-five-year-old male, raped his thirteen-year-old
daughter1 one morning after his wife had left for work. The victim was in bed when the
defendant told her to take off her underpants. When she refused to obey, he forced her
knees straight and pulled off her underpants. He removed his clothing and sexually
penetrated her for thirty minutes. He then told her to take a shower and prepare for
school. The defendant drove her to school, where she reported the rape.
The defendant pled guilty, agreeing to a negotiated sentence of eight years.
The cause proceeded to a sentencing hearing, where the defendant requested
community release in lieu of confinement. According to the defendant’s testimony at the
hearing, the defendant did not remember the exact events during the rape, although he
did recall penetrating the victim. The defendant wished to maintain a family relationship
with his wife and the victim and stated that he shouldered full responsibility for the rape.
The defendant also admitted having a lengthy prior record, beginning at age eighteen or
nineteen, although he claimed not to remember all of his past offenses. The defendant
described his present mental health as “fair” because he allowed the rape to occur, and
he noted that because of the rape, he was attending counseling. The presentence report
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The defendant previously adopted the victim, who is the defendant’s wife’s natural daughter by
a prio r ma rriag e. W e not e, ho weve r, that portio ns of the tra nsc ript re fer to the vic tim a s the defe nda nt’s
stepdaughter.
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acknowledges a history of drug and alcohol use, but the defendant maintained he had
not used illegal drugs in eighteen years and had not drunk alcohol heavily since around
1981. He admitted to presently enjoying a cold beer on a hot day, but he maintained that
“abstinence would be no problem” if the court so ordered.
At the conclusion of the hearing, the trial court accepted the State’s
recommendation of eight years, which was the minimum sentence for the offense, but
noted that the evidence could have supported three enhancing factors, including the
victim’s young age, the abuse of a position of trust, and the defendant’s history of criminal
conduct. In determining whether the defendant should be released into the community
during his eight year sentence, the trial court noted that there was no restitution to be
made in this case and that confinement was necessary to protect society from the
defendant and to avoid depreciating the offense. The trial court also recognized that it
should consider the defendant’s potential for rehabilitation. Noting that the offense was
the forcible rape of a young child, the trial court stated that the defendant was not an
appropriate candidate for any kind of release and ordered the defendant to serve his
sentence in the Department of Correction. The defendant now appeals, arguing that the
trial court improperly considered his eligibility for alternative sentencing.
Since the defendant pled guilty to a Class B felony, he did not enjoy the
presumption of alternative sentencing under T.C.A. § 40-35-102(6). While both parties
agree that the defendant is statutorily eligible for probation under T.C.A. § 40-35-303(a)
because the sentence imposed was eight years, they disagree as to whether the
defendant is statutorily eligible for community corrections under T.C.A. § 40-36-106.
Section 40-36-106(a) provides that persons convicted of crimes against the
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person as provided in title 39, chapter 13, parts 1-5 and persons convicted of violent
felony offenses are not eligible for community corrections. § 40-36-106(a)(2)-(3).
Because the defendant was convicted of rape, a violent felony offense, in violation of §
39-13-503, he is not eligible for community corrections under § 40-36-106(a). The
defendant contends, however, that he is eligible for community corrections under § 40-36-
106(c), which provides:
Felony offenders not otherwise eligible under subsection (a), and
who would be usually considered unfit for probation due to histories of
chronic alcohol, drug abuse, or mental health problems, but whose special
needs are treatable and could be served best in the community rather than
in a correctional institution, may be considered eligible for punishment in
the community under the provisions of this chapter.
We disagree. The record is devoid of any evidence that the defendant suffers from
mental health problems, apart from the defendant’s passing assessment that raping his
daughter has caused his mental health to be “fair.” The defendant’s prior criminal record
shows some illicit drug use and alcohol abuse during the 1970s. However, the defendant
explicitly denied any illegal drug or alcohol use in the past eighteen years. He maintained
that he quit drinking alcohol “cold turkey” around 1981 and now only drinks a cold beer
in hot weather. The defendant also boasted that he has abstained from alcohol for as
long as six years and that further abstinence would be “no problem” if the court so
ordered. Given the defendant’s admissions concerning his alcohol and drug use (or lack
thereof) and the lack of evidence that the defendant suffers from mental health problems,
the defendant does not have “special needs” that would qualify him for community
corrections under § 40-36-106(c).
Even assuming that the defendant was statutorily eligible for community
corrections, however, we agree with the trial court’s decision that the defendant is not
entitled to any sort of alternative sentencing or release in the community. The record
contains ample evidence of the defendant’s long criminal history, which is probative of
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the defendant’s lack of potential for rehabilitation. We also agree with the trial court’s
determination that confinement is necessary to avoid depreciating the seriousness of the
offense, which involved a father violating his daughter’s trust and causing her physical
and emotional damage. Given the circumstances of this case, we affirm the trial court’s
decision.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
DAVID G. HAYES, Judge
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