State v. Canter ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1998 SESSION
September 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9708-CR-00370
)
) Sullivan County
v. )
) Honorable R. Jerry Beck, Judge
)
BOBBY W. CANTER, ) (Denial of probation)
)
Appellant. )
For the Appellant: For the Appellee:
Stephen M. Wallace John Knox Walkup
District Public Defender Attorney General of Tennessee
and and
Gale K. Flanary Clinton J. Morgan
Assistant Public Defender Assistant Attorney General of Tennessee
P.O. Box 839 425 Fifth Avenue North
Blountville, TN 37617 Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
and
Teresa Murray Smith
Greg Newman
Assistant District Attorneys General
P.O. Box 526
Blountville, TN 37617
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Bobby W. Canter, appeals as of right from the denial of
probation by the Sullivan County Criminal Court. Pursuant to a plea agreement, the
defendant pled guilty to the attempt to commit aggravated sexual battery, a Class C
felony, and was sentenced to eight years in the Department of Correction as a Range
II, multiple offender. 1 We affirm the trial court.
The defendant was originally charged with the aggravated sexual battery
of his stepdaughter. The presentence report reflects that the victim stated that the
defendant required her to masturbate him and that it had happened before. It also
reflects that the defendant denied that it happened, even after his guilty plea.
The gist of the defendant’s concern relates to the fact that as part of the
plea agreement, he agreed to attend a program with Counseling and Consultation
Services, Inc., in order to evaluate his suitability for treatment in the community. The
state had agreed that if he were suitable for such treatment, he should be placed on
intensive probation. However, the defendant did not attend any sessions.
At the sentencing hearing, the defendant and his live-in girlfriend testified
that he was going to the first evaluation meeting on April 23, 1997, when the car broke
down. The defendant said that he called and obtained another appointment for May 6,
1997. However, when he arrived, he was told that he would have to pay the one
hundred fifty dollars for the first missed session before he had another session. He
testified that he did not have the money.
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The record reflects that although the defendant did not qualify through prior convictions
for Ran ge II, he ag reed to s uch sta tus as p art of the p lea agree men t.
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The defendant testified that he worked as a roofer and that business had
been slow. He said that the money he made went for rent, electricity and the like and
that he did not have the money to pay for the sessions. The presentence report reflects
that the defendant telephoned the presentence officer on August 14, 1997, and told her
that he was not going to counseling because he was not guilty and he could not afford
it. The defendant essentially confirmed this conversation in his testimony.
In considering the sentence, the trial court noted that the defendant had a
lengthy misdemeanor record, including convictions for driving under the influence,
driving on a suspended license, theft, and obtaining money by fraud. It stated that the
presentence report reflects that the defendant was less than candid about his
employment status at the time of his interview. Also, the trial court doubted the
defendant’s sincerity relative to his claim of inability to attend the evaluation sessions
that were required. The trial court concluded that the defendant had failed to prove that
he was a worthy candidate for probation.
The defendant contends that the record supports his request for
probation. We disagree. As a Range II, multiple offender, the defendant is not
presumed to be an appropriate candidate for alternative sentencing. See T.C.A. § 40-
35-102(6). The burden was and is on him to prove such entitlement. See State v.
Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990); T.C.A. § 40-35-401(d).
The trial court found that the defendant was not candid, a circumstance
that bears on his amenability to rehabilitation and may justify a denial of probation. See
State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim. App. 1992). Also, the defendant’s
unexcused failure to comply with the sexual offender evaluation process militates
against probation. These circumstances, coupled with his criminal record and the
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circumstances surrounding the present offense, more than justifies the denial of
probation. The judgment of conviction is affirmed.
_____________________________
Joseph M. Tipton, Judge
CONCUR:
___________________________
Gary R. Wade, Presiding Judge
___________________________
David H. Welles, Judge
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