State v. Robert Pfoff ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1999 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9804-CR-00138
March 9, 1999
Appellee, * HAMBLEN COUNTY
VS. * Hon. John K. Byers, Senior Judge
Cecil Crowson, Jr.
ROBERT EUGENE PFOFF, SR., * (Two Counts of Sexual Battery)
Appellate C ourt Clerk
Appellant. *
For Appellant: For Appellee:
Paul G. Whetstone John Knox Walkup
Attorney Attorney General and Reporter
502 North Jackson Street
Morristown, TN 37814 Eric W. Dabb
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Victor Vaughn and John Dugger
Assistant District Attorneys General
519 Allison Street
Morristown, TN 37814
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Robert Eugene Pfoff, Sr., was convicted on two counts
of sexual battery, a Class E felony. 1 The trial court imposed concurrent Range I
sentences of one year on each count, to be served in confinement, and denied any
form of alternative sentence.
In this appeal of right, the defendant argues that the trial court should
have granted probation, placement into a Community Corrections program, or some
other form of alternative sentence. We affirm the judgment of the trial court.
The defendant, the legal guardian and custodian of his sixteen-year-
old granddaughter, was charged with sexual battery for incidents occurring April 13
and May 8 of 1995. The defendant and his wife, Johnnie Pfoff, who had been
married for forty-seven years, had been granted legal custody of the victim
approximately six months before the incidents occurred. The defendant admitted to
the following facts contained in Count One of the indictment:
I walked into [the victim's] bedroom. [She] was lying on
her stomach with her clothes on. [She] had on blue
jeans and a black sweater. I asked [her] if she wanted
me to rub her back and she said it was [okay]. I'm not
sure w[h]ere I started rubbing on top of her sweater or
under her sweater. I know I rubbed under her sweater
because I undid her bra strap. [She] said raise up my
arm is pinned so [she] turned over. [Her] sweater was up
over her breasts and her bra wasn't covering her breast.
My hand rubbed over [her] breast. I reached down and
kissed [her] breast. [She] said no.
The defendant denied any other sexual contact but entered an Alford
plea on Count Two. A statement by the victim relative to the second incident
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On Coun t Two, the defendant entered a be st interest plea of guilt under North Carolina v.
Alford, 400 U.S . 25 (197 0).
2
provides, in part, as follows:
The last time my grandfather ... touched me was on the
day I talked to JoAnne Parkins at school [on] May 8,
1995. Robert came into my bedroom and touched my
breast under the clothes and on top of the clothes. [He]
has touched me different times.
After adjudging the defendant guilty as charged on each of the two
counts, the trial court denied probation. While conceding that incarceration would
have a "devastating" effect upon the defendant, the trial court determined that the
nature and circumstances of the crime were "grievous," especially because of the
position of trust between the defendant and his granddaughter. The trial court
rejected Community Corrections and determined that judicial diversion was
inappropriate due to the "terribly serious crimes" involved.
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). 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
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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).
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
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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.
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 defendant made a persuasive case for judicial diversion,
probation, or Community Corrections. Born February 25, 1931, the defendant had
been married almost a half century by the date of the sentencing hearing and had
no prior criminal record. He completed the eleventh grade of school in Clay County,
Kentucky, received his GED in 1952, and attended college for three years. He had
no history of alcohol or drug abuse, he served in the United States Air Force, and he
5
received an honorable discharge. The defendant has been gainfully employed
throughout his adult life and, in 1961, went to work for Aid Budget Company. He
has served in management in several finance companies and was employed with
the same business for over twenty-five years. The defendant suffers from diabetes,
an ulcer, sleep apnea, angina, migraine headaches, and other infirmities. He has
had surgery on several occasions and suffers from depression, a condition for which
he receives psychiatric treatment and medication. He testified at the sentencing
hearing that he had thirteen prescriptions for medication. The victim submitted a
letter acknowledging that the defendant had suffered emotionally, physically, and
financially. She opposed a sentence of incarceration. Several witnesses testified to
the defendant's good character. He was described as a model citizen.
While the defendant makes a compelling case for an alternative
sentence, there were two separate counts of sexual battery. The victim referred to
other instances of inappropriate contact. As grandparent and the legal custodian of
the child, the defendant occupied a position of trust and responsibility with regard to
his sixteen-year-old granddaughter; moreover, the trial court determined that the
victim had had a "difficult childhood" prior to being placed in defendant's custody.
See Tenn. Code Ann. § 40-35-114(4), (5).
The nature of the crime, under these circumstances, is of particular
concern. A term of confinement, in our view, is necessary to avoid depreciating the
seriousness of the offenses. See Tenn. Code Ann. § 40-35-103(1)(B). Thus, the
term ordered is entirely appropriate.
Although not specifically raised as a separate issue, the defendant has
also complained that the trial court erred by denying his request for judicial
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diversion. See Tenn. Code Ann. § 40-35-313. This court is limited to a
determination of whether the trial court abused its discretion. Judicial diversion
necessarily precludes the entry of a judgment of guilty and requires the imposition of
immediate probation. State v. Vassar, 870 S.W.2d 543 (Tenn. Crim. App. 1993).
Because we have concluded that the trial court acted within its discretion in denying
probation, it necessarily follows that there was no error in the denial of judicial
diversion.
Finally, the defendant committed a crime against a person and is thus
disqualified from consideration for Community Corrections. Tenn. Code Ann. § 40-
36-106(a)(2). Because sexual battery is defined as a violent offense, the
Community Corrections program is not an alternative. See Tenn. Code Ann. § 40-
36-106(a)(3); State v. Staten, 787 S.W.2d 934 (Tenn. Crim. App. 1989). While
depression may qualify the defendant under the "special needs" provision of the Act,
the medication and treatment required can be administered in confinement. In
summary, because the trial judge saw and heard the witnesses at the sentencing
hearing and carefully considered all of the controlling factors, we must treat the
judgment of the trial court as presumptively correct.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
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CONCUR:
_____________________________
James Curwood W itt, Jr., Judge
_____________________________
Norma McGee Ogle, Judge
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