State of Tennessee v. Jerry Allen Ketchum ( 2002 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 19, 2002
STATE OF TENNESSEE v. JERRY ALLEN KETCHUM
Direct Appeal from the Criminal Court for Sullivan County
No. S43622 R. Jerry Beck, Judge
No. E2001-02008-CCA-R3-CD
May 17, 2002
The Defendant entered a plea of nolo contendere to attempted aggravated sexual battery. Pursuant
to his plea agreement, the Defendant received a four-year sentence, with the manner of service of
the sentence to be determined by the trial court. Following a sentencing hearing, the trial court
ordered that the Defendant serve the four-year sentence in the Tennessee Department of Correction.
The Defendant now appeals, arguing that he should have received some form of alternative
sentencing. Concluding that the record supports the trial court’s denial of alternative sentencing, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID H. WELLES, J., joined.
Nat H. Thomas, Kingsport, Tennessee (on appeal); and Larry R. Dillow, Kingsport, Tennessee (on
appeal and at trial), for the Appellant, Jerry Allen Ketchem.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; James Goodwin, Assistant District
Attorney General; Barry P. Staubus, Assistant District Attorney General; and Teresa Murray-Smith,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
The Defendant was indicted by the Sullivan County Grand Jury for aggravated sexual
battery, a Class B felony. Pursuant to a plea agreement, the Defendant entered a plea of nolo
contendere to attempted aggravated sexual battery and received a four-year sentence, with the
manner of service of the sentence to be determined by the trial court. At the sentencing hearing, the
parties agreed to the following stipulation concerning the evidence in the case:
If this matter had gone to trial, the State’s proof would have been that on or about
October 11th, 1999, the victim [C. O.]1 was in her mother’s room, laying [sic] on the
bed, watching television. The defendant came into the room naked, pulled down [C.
O.’s] panties and rubbed his penis over her buttocks. He then attempted to roll [C.
O.] over. At that time, [C. O.] began crying loudly and struggled away and ran to her
brother’s room.
Her brother, Ryan,2 whose room is upstairs, stayed up the rest of the night while [C.
O.] was there so that he could protect her.
[C. O.] was taken later that morning to be examined by Dr. Ben Altman, at the
Bristol Regional Medical Center Emergency Room. Dr. Altman took a history,
including the victim describing what had happened to her the night before.
Dr. Altman examined the victim and discovered redness in the perianal region. Dr.
Altman concluded that this was consistent with sexual assault.
These acts all occurred in Sullivan County, Tennessee.
....
. . . The victim was seven (7) on October 11th, 1999. Less than thirteen (13) years of
age.
At the sentencing hearing, the Defendant presented the testimony of two longtime friends,
who stated that the Defendant had a good reputation in the community and that he had a good
reputation for truth and veracity. The Defendant’s adult daughter and adult son from a prior
marriage next testified that the Defendant had been a good father to them and would be a good
candidate for probation or alternative sentencing.
The Defendant then testified. He stated that he was fifty-eight years old at the time of the
sentencing hearing and that he had been a lifelong resident of Bristol, Tennessee. The Defendant
testified that he had worked for Eastman from 1977 until his recent termination due to the entry of
his nolo contendere plea to attempted aggravated sexual battery. The Defendant discussed his filed
written response to the Sexual Offender Risk Assessment that had been performed on him, in which
he maintained his innocence. However, the Defendant testified that he was willing to undergo any
treatment in order to get probation.
1
It is the policy of this Court to refer to minor victims in cases of sexual abuse by initials rather than by name.
2
Ryan and C. O. were the Defendant’s step-children at the time of the offense.
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The Defendant testified that he was working as an electrician with his two brothers at the
time of the sentencing hearing. He testified that he had been married and divorced twice. In his
opinion, his second former wife was responsible for the false accusations of aggravated sexual
battery because the Defendant had accused her of adultery and because he told her she was going
to “lose the children.”
On cross-examination, the Defendant admitted that his polygraph test (taken as part of his
evaluation by Counseling and Consultation Services in Johnson City, Tennessee) showed deception.
The Defendant reported that he quit drinking two years prior to the sentencing hearing, after his last
driving while intoxicated conviction in November of 1999.
Finally, the defense presented the testimony of Brenda Darlene Brown, who stated that she
manages a bridal boutique and is currently involved in a relationship with the Defendant. Ms.
Brown testified that the Defendant is a “wonderful father” and “an all round good person.” She
explained that she had written the Defendant’s response to the Sexual Offender Risk Assessment for
him, because the Defendant “writes slow.”
The State presented the testimony of the victim’s father, who discussed the impact of the
crime on his daughter. The Court also considered the pre-sentence report and the Sexual Offender
Risk Assessment, both of which had been filed prior to the sentencing hearing.
The Defendant now challenges on appeal the trial court’s order that he serve his entire four-
year sentence in the Tennessee Department of Correction. When a criminal defendant challenges
the length, range, or manner of service of a sentence, the reviewing court must conduct a de novo
review of the sentence with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d). This presumption, however, “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). In the event that the record
fails to show such consideration, the review of the sentence is purely de novo. State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992).
In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).
The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
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Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d
at 123. However, the sentence must be adequately supported by the record and comply with the
purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237
(Tenn. 1986).
When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).
If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence "even if we would have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.
Specifically, the Defendant argues that he should have been granted some form of alternative
sentencing. Tennessee Code Annotated § 40-35-102(5) provides as follows:
In recognition that state prison capacities and the funds to build and maintain
them are limited, convicted felons committing the most severe offenses, possessing
criminal histories evincing a clear disregard for the laws and morals of society, and
evincing failure of past efforts at rehabilitation shall be given first priority regarding
sentencing involving incarceration . . . .
A defendant who does not fall within this class of offenders “and who is an especially mitigated
offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court
must presume that a defendant sentenced to eight years or less and not an offender for whom
incarceration is a priority is subject to alternative sentencing and that a sentence other than
incarceration would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80
(Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The Defendant, as a standard
offender convicted of a Class C felony, see Tenn. Code Ann. § 39-13-213(b), is presumed to be a
favorable candidate for alternative sentencing.
However, all offenders who meet the criteria are not entitled to relief; instead, sentencing
issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744
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S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing Moss, 727 S.W.2d at 235). Even if a defendant
is presumed to be a favorable candidate for alternative sentencing under Tennessee Code Annotated
§ 40-35-102(6), the statutory presumption of an alternative sentence may be overcome if
(A) [c]onfinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) [c]onfinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective deterrence to
others likely to commit similar offenses; or
(C) [m]easures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant . . . .
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent
part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-
103(5); see also State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).
More specifically, the Defendant argues that he should have been granted probation. In
determining whether to grant or deny probation, the trial court may consider the circumstances of
the offense; the defendant’s criminal record, background and social history; the defendant’s physical
and mental health; the deterrent effect on other criminal activity; and the likelihood that probation
is in the best interests of both the public and the defendant. State v. Parker, 932 S.W.2d 945, 958
(Tenn. Crim. App. 1996). The Defendant bears the burden of establishing suitability for probation.
Tenn. Code Ann. § 40-35-303(b); Ashby, 823 S.W.2d at 169.
The trial court made detailed findings and carefully weighed all of the appropriate factors,
both favorable and unfavorable, in determining that the Defendant had not established his suitability
for probation. The trial court considered the information in the presentence report, the Sexual
Offender Risk Assessment, appropriate victim impact evidence, and the testimony of the witnesses
at the sentencing hearing. The trial court pointed out that certain factors weighed in favor of the
Defendant’s request for probation. These favorable factors, as pointed out by the trial court, include
that the Defendant would have community support if he received alternative sentencing, that the
Defendant had a good work record at Tennessee Eastman, that the Defendant had worked
“successfully” from the early 1970's until the conviction, that the Defendant is a good father to his
adult children from a prior marriage and that the Defendant has “solidified his relationship with
God.” The trial court then assessed the negative factors, including the Defendant’s prior criminal
convictions, the negative aspects of the Sexual Offender Risk Assessment, and the victim impact
evidence. The presentence report reflects that between April 3, 1996 and May 17, 2000, the
Defendant received two speeding convictions and three driving while intoxicated convictions.
During the same time period, the Defendant also received convictions for criminal trespass, public
intoxication, driving without a license, assault, and driving while his license was suspended. The
trial court also took note of the fact that the Defendant abused a position of private trust in
committing the offense. See Tenn. Code Ann. § 40-35-114(15). The trial court carefully balanced
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all of the relevant factors and determined that “the negative factors indicating a denial of probation
outweigh any potential favorable factors set out in any of the proof or anything submitted.”
In our view, the record supports the sentence imposed. The Defendant complains that
because he entered an Alford plea,3 the trial court should not have considered any negative aspect
of the Sex Offender Risk Assessment that was based on the Defendant’s denial of guilt. Our
supreme court has held that a Defendant’s failure to acknowledge culpability for his or her actions
may also support a finding that a sentence of confinement is necessary to avoid depreciating the
seriousness of an offense. See State v. Gutierrez, 5 S.W.3d 641, 647 (Tenn. 1999); see also State
v. Donald Paul Presley, No. E2000-00592-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 629, at *26
(Tenn. Crim. App., Knoxville, Aug. 14, 2001); State v. Thomas Wayne Shields, No. W2000-01524-
CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 18, at *33 (Tenn. Crim. App., Jackson, Jan. 4, 2000).
Further, this Court has held that an Alford plea does not prohibit a trial court from considering a
defendant’s failure to accept responsibility for his criminal conduct as it relates to his rehabilitation
potential. State v. Homer L. Evans, No. E2000-00069-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS
196, at *14 (Tenn. Crim. App., Knoxville, Mar. 20, 2001). Finally, in our view, the Defendant’s
criminal history and his abuse of the position of trust as a step-father are sufficient to rebut the
presumption that he is a favorable candidate for alternative sentencing, including probation.
For these reasons, we conclude that the presumption of alternative sentencing was sufficiently
rebutted in this case and that the trial court thus did not err by imposing a sentence of confinement.
Accordingly, we AFFIRM the judgment of the trial court.
___________________________________
ROBERT W. WEDEMEYER, JUDGE
3
In entering an Alford plea, a defendant “faced with strong evidence of guilt and no substantial evidentiary
support for [his] claim of innocence” may refrain from adm itting his culpability and accep t a sentence. North Carolina
v. Alford, 400 U.S. 25, 91 (1 970).
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