State of Tennessee v. Robert Lee Fleenor

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
SEPTEMBER SESSION, 1997 FILED
October 9, 1997
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) No. 03C01-9611-CR-00400
Appellee )
) SULLIVAN COUNTY
vs. )
) Hon. R. Jerry Beck, Judge
ROGER LEE FLEENOR, )
) (Attempt to commit aggravated
Appellant ) sexual battery)
For the Appellant: For the Appellee:
Larry S. Weddington Charles W. Burson
200 Seventh Street Attorney General and Reporter
Bristol, TN 37620
Peter M. Coughlan
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
Teresa Murray Smith
Asst. District Attorney General
Blountville TN 37617
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Roger Lee Fleenor, appeals the sentence imposed by the
Sullivan County Criminal Court upon his plea of guilty to the offense of attempt to
commit aggravated sexual battery, a class C felony. Pursuant to a negotiated plea,
the appellant received a sentence of eight years as a range II offender. The manner
of service of the sentence was submitted to the trial court for determination.
Following a sentencing hearing, the trial court denied any form of alternative
sentence and ordered that the sentence be served in the Department of Correction.
The appellant now appeals this decision.
After a review of the record, we affirm the decision of the trial court.
Background
The appellant’s conviction stems from the sexual contact of his seven year
old granddaughter. On a date occurring between May 31, 1994, and August 31,
1994, the appellant’s granddaughter spent the night alone with the appellant at his
house. Early the following morning, she went into her grandfather’s bedroom to say
good morning. The appellant pulled his granddaughter onto the bed and began to
fondle her under her clothing. The victim eventually told her mother, who reported
the incident to law enforcement officials. On March 21, 1995, a Sullivan County
Grand Jury returned a presentment against the appellant charging him with one
count of aggravated sexual battery, a class B felony. See Tenn. Code Ann. § 39-
13-504(a)(4) (1994 Supp.). On April 15, 1995, the appellant, pursuant to a plea
agreement, pled guilty to the lesser offense of attempt to commit aggravated sexual
battery, a class C felony.
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A sentencing hearing was held on June 26, 1996. The proof at the hearing
revealed that the appellant, age 54, had no prior criminal history, a seventh grade
education, and a commendable work history as an automobile mechanic. The
appellant stated that he was in good physical and mental health and had never
abused either alcohol or drugs. The appellant is the father of two sons and three
daughters, all presently adults, born of his thirty year marriage to his first wife,
Juanita, who passed away in 1992. At the time of the sentencing hearing, the
appellant was married to his second wife, Patsy. Various witnesses confirmed the
fact that the appellant is well respected within his community and actively involved in
his church.
Despite his many commendable traits and character references, the
appellant admitted to the unlawful sexual contact with his seven year old
granddaughter. In an attempt to justify his conduct, he explained that the victim
began “rubbing his penis and kissing on him, so he just returned her love.” He
added that this conduct occurred on one other occasion. The appellant also
confessed to other similar incidents of sexual contact involving two of his daughters
and a niece, during the girls’ adolescence. In a victim impact statement attached to
the presentence report, the appellant’s granddaughter stated that she is “afraid of
Papaw that he might hurt me for telling mom.” The victim added that she “is mad
because he said I led him on,” and wanted the appellant to “go to jail.” At the
sentencing hearing, the mother of the victim, the appellant’s daughter, testified that
she had forgiven her father and that she was not opposed to probation.
A court ordered “Psycho Sexual Evaluation” of the appellant was completed
on June 14, 1996, by a private non-profit agency to determine “the least restrictive
treatment setting which can effectively reduce the risk of further sexual acting out.”
Results from one portion of the evaluation indicated that the appellant was “most
aroused by males eight years old followed by male adults then males four years old
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and females twelve years old.” However, the appellant’s “most intense arousal
response” was to “females twelve years old followed by females sixteen years old,
then adult males and females.” On the Adler Sexual Interest Inventory, the
appellant revealed that, at eight or nine years old, he had been anally penetrated by
his older brother. The appellant admitted to exposing himself, over a period of
fifteen years, to female adults and children, to sexually touching the present victim
on two separate occasions, and to sexually touching two of his daughters and a
niece on numerous occasions.
During a clinical interview, the appellant explained, when questioned about
his history of deviant sexual behavior, that he “does not believe he has a problem.”
He blames “the Devil for exploiting his weakness.” “The Devil has done this
because [he] is trying to live his life for God.” However, antithetic to this explanation,
the appellant reported that he molested his granddaughter because “he had lost his
wife and had no companionship.” Furthermore, the appellant “demonstrated no
empathy or understanding of how his offense has hurt his victim.” Based on the
results of the psychological testing, the evaluation team, comprised of counselors
and therapists, concluded that the appellant was in need of specialized sexual
offender treatment, that he is a “very high risk to continue sexually acting out,” that
the appellant “should not have any contact with minor children,” and that the
appellant “is considered to be a moderate risk to reoffend given his number of
victims and paraphilias [sic], his defensiveness, unwillingness to accept
responsibility for his sexual offending, and inability to honestly disclose sexual
offensive behavior.”1 (Emphasis added).
1
"Paraph ilia” is defined a s a prefe rence fo r or addic tion to unus ual sexu al practice s.
W EBSTER ’S T H I R D N EW INTERNATIONAL D ICTIONAR Y 1638, V O L . II (1981).
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Analysis
In his only issue, the appellant contends that the trial court erred by imposing
a sentence of total incarceration. When the manner of service of a sentence is
challenged on appeal, this court must conduct a de novo review with consideration
of the evidence received at the sentencing hearing, the presentence report, the
principles of sentencing and arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct involved, any statutory mitigating or
enhancement factors, any statement that the defendant made on his own behalf,
and the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.
§ 40-35-102, -103, -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim.
App. 1987). Although a de novo review is conducted by this court, the trial court’s
determination is presumed correct on appeal, conditioned upon an affirmative
showing in the record that the trial court properly considered relevant sentencing
principles. Tenn. Code Ann. § 40-35-401(d) (1990); State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In the present case, the trial court properly considered such
principles. The presumption of correctness applies. Moreover, the appellant bears
the burden of showing that the sentence imposed by the trial court is improper. See
Tenn. Code Ann. § 40-35-210(b)(3) (1990).
A. Presumption Favoring Alternative Sentence
The appellant first challenges the trial court’s decision that he is not entitled
to the statutory presumption that he is a favorable candidate for alternative
sentencing. To be eligible for the statutory presumption, three requirements must
be met. The appellant must be convicted of a class C, D, or E felony. Tenn. Code
Ann. § 40-35-102(6) (1994 Supp.). He must be sentenced as a mitigated or
standard offender. Id. And, the defendant must not fall within the parameters of
Tenn. Code Ann. § 40-35-102(5), i.e., the defendant cannot have a criminal history
evincing either a “clear disregard for the laws and morals of society” or “failure of
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past efforts at rehabilitation.” Id. The appellant’s agreement permitted him to plead
guilty to the lesser offense of attempt to commit aggravated sexual battery, a class
C felony. In exchange for his conviction of a lesser offense, he agreed to
classification as a range II offender, even though he had no prior criminal
convictions. The appellant claims that, contrary to his plea agreement, he is, in fact,
a standard offender.
We are not persuaded by the appellant’s argument that he should be
permitted to receive the benefit of the bargain he has chosen while rejecting that
part which displeases him. Recently, our supreme court acknowledged the
longstanding principle that “a defendant can waive the range classification as part of
a negotiated guilty plea, to sentences in cases arising under the new Act.” State v.
Hicks, 945 S.W.2d 706, 708 (Tenn. 1997). The court held that such a sentence is
valid "when imposed as a result of a plea bargain agreement entered voluntarily
and knowingly." Id. The court added that, "where the parties negotiate in good faith
and there are no allegations of fraud or misfeasance, the parties are precluded from
attacking on appeal the agreed range imposed by the trial court." Id. at 708. Thus,
the appellant's knowing and voluntary guilty plea, absent any evidence of fraud or
bad faith on behalf of the State, waived any right of the appellant to later challenge
the legality of the sentence imposed by the trial court. In other words, once the
appellant agreed to be classified as a range II offender, he became a range II
offender for all purposes, including alternative sentencing. Hence, as a range II
offender, the appellant is not presumed to be a favorable candidate for alternative
sentencing. See, e.g., State v. Grigsby, No. 02C01-9507-CR-00184 (Tenn. Crim.
App. at Jackson, Jan. 15, 1997); State v. Wells, No. 03C01-9512-CC-00385 (Tenn.
Crim. App. at Knoxville, Nov. 27, 1996); State v. Armstrong, No. 01C01-9503-CC-
00097 (Tenn. Crim. App. at Nashville, Nov. 16, 1995). This contention is without
merit.
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B. Denial of Alternative Sentence
Although the trial court strongly accredited the appellant’s lack of a criminal
record and the appellant’s favorable employment and social history, the court, in
denying any form of alternative sentencing, found that the results of the
psychological report, i.e., the appellant’s risk of reoffending, his long history of this
type of conduct, his unwillingness to accept responsibility for his conduct, and his
inability to honestly disclose his sexual offensive behavior, overwhelmingly indicate
that “[c]onfinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct.” See Tenn. Code Ann. § 40-35-103(1)(A)
(1990).
With the presumption that the trial court’s determination is correct, we
conclude that the appellant has failed to carry his burden of establishing that he is
entitled to alternative sentencing. The trial court’s finding is more than adequately
supported by the record The appellant admitted to a long history of deviant sexual
behavior. This alone is sufficient to deny alternative sentencing. See State v.
Matthews, No. 03C01-9505-CR-00153 (Tenn. Crim. App. at Knoxville, May 1, 1996)
(affirming trial court’s denial of alternative sentence based upon defendant’s
numerous incidents of unprosecuted unlawful sexual contact). Additionally, the trial
court, properly recognizing that the “protection of society” is a fundamental concept
in the sentencing process, expressed its apprehension over releasing the appellant
into the community given the appellant’s verified propensity to reoffend. Moreover,
the proof discloses that the appellant was not truly remorseful for his actions, had a
strong sexual attraction to children, and was not being totally truthful with the court
or counselors. Consideration of the appellant’s poor prospects for rehabilitation as a
factor militating against an alternative sentence is also appropriate. See Matthews,
No. 03C01-9505-CR-00153.
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After a de novo review of the record coupled with the presumption that the
decision of the trial court is correct, we conclude that the appellant has failed to
show his entitlement to a sentence other than total incarceration. Accordingly, the
judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
___________________________________
JOHN H. PEAY, Judge
___________________________________
WILLIAM M. BARKER, Judge
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