State of Tennessee v. Nicholas Tyler Beckham

10/22/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 16, 2019
STATE OF TENNESSEE v. NICHOLAS TYLER BECKHAM
Appeal from the Circuit Court for Cheatham County
No. 18134 Larry J. Wallace, Judge
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No. M2018-02027-CCA-R3-CD
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The Cheatham County Grand Jury indicted Nicholas Tyler Beckham, Defendant, on
twenty-three counts of aggravated sexual exploitation of a minor. Pursuant to a plea
agreement, Defendant pled guilty to counts one through five, with an agreed sentence of
five years on each count, counts one through four to be served consecutively, with count
five to run concurrently to count four, for an effective sentence of twenty years at thirty
percent, with the manner of service to be determined by the court. The remainder of the
counts were dismissed. Following a sentencing hearing, the trial court ordered Defendant
to serve his sentence in the Tennessee Department of Correction. On appeal, Defendant
claims the trial court abused its discretion when it denied alternative sentencing for
Defendant. After a thorough review of the record and applicable case law, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
William B. Lockhart, III, District Public Defender, and Matthew T. Mitchell, Assistant
District Public Defender, Ashland City, Tennessee, for the appellant, Nicholas Tyler
Beckham.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Ray Crouch, District Attorney General; and Margaret F. Sagi
and David Wyatt, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
Sentencing Hearing
Teresa Geas testified that she was employed with the Tennessee Department of
Correction Board of Probation and Parole and that she prepared a presentence report for
Defendant. The report provided no information asserted by the parties relating to
mitigating factors or enhancement factors. Ms. Geas stated that she received the State’s
enhancement factors after she had prepared her presentence report.. On cross-
examination, Ms. Geas testified that Defendant was eighteen years old at the time of the
offenses and that, based on his risk assessment, Defendant had a moderate risk of re-
offending. Ms. Geas agreed that she did not know why Defendant was placed in the
moderate category when all but one of the risk assessment sub-categories presented as
low risk. On redirect examination, Ms. Geas stated that the risk assessment did not take
into consideration Defendant’s possible depression, pedophilia, or access to small
children.
Detective Timothy Palchak testified as an expert in the investigation of child
exploitation. Detective Palchak said he was a member of the FBI’s Child Exploitation
Task Force at the Washington, D.C. Field Office. He stated that he began specialized law
enforcement training in the year 2000 when he began working with the FBI’s child abuse
unit.
Detective Palchak testified that, while working as an undercover task force officer,
he came into contact with Defendant online. Defendant saw Detective Palchak’s posts
online, on a mobile application called “KiK,” in group forums about pedophilia and
incest. Defendant contacted Detective Palchak online using Defendant’s KiK screen
name “abbissupergirl.” Defendant told Detective Palchak that he was an eighteen-year-
old male who lived in Indiana and that he liked to “play with [his] younger sisters[.]”
Defendant told Detective Palchak that he “do[es] anal” with his five-year-old sister.
Defendant asked Detective Palchak if he would like to see pictures, and Detective
Palchak answered affirmatively. Defendant sent Detective Palchak three pictures via
KiK, as detailed in the Incident Report:1
1. An image of a nude prepubescent female child with her legs
spread exposing her bare vagina. Defendant told Detective Palchak that
this picture was of an eight-year-old girl.
1
Detective Palchak prepared the Incident Report on December 8, 2016. The Incident Report was
admitted as Exhibit 4 to the Sentencing Hearing.
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2. An image of a nude prepubescent female with a penis inserted into
the child’s anus. Defendant told Detective Palchak that this picture was of
a five-year-old girl.
3. An image of a nude prepubescent female from the vagina down to
her anus, legs spread, with a penis inserted into the child’s anus.
Detective Palchak then gave Defendant his undercover cell phone number, and
Defendant contacted Detective Palchak via text message. Defendant sent eleven
additional pictures to Detective Palchak’s undercover cell phone, as detailed in the
Incident Report:
1. An image of a prepubescent child lying on a burgundy sheet with her
legs spread exposing her bare vagina. An erect penis is near the child’s
vagina but not touching it. The image focuses on the child’s vagina, and no
face is visible.
2. An image depicting a prepubescent child spreading her bare vagina
open.
3. An image of a prepubescent child on all fours exposing her bare
buttocks and vagina.
4. An image of a prepubescent child spreading her legs open and exposing
her bare vagina. The image is taken from the waist down.
5. An image of a female child wearing a multi-colored shirt and no panties.
The child’s hand and fingers are on her bare vagina.
6. The same child as the previous (photo 5). The child is touching her bare
vagina with her fingers, and a penis is near her vagina.
7. The same child as the previous (photo 6). The child is inserting her
finger into her bare vagina.
8. An image depicting a male spreading the vagina of a prepubescent child
with his fingers.
9. Three images depicting a male inserting his penis into a prepubescent
child’s anus.
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At Detective Palchak’s request, Defendant sent him a picture of “half [of] the face
of the girl that was described in the images.” Based on the picture of the child’s face,
Detective Palchak estimated that the child was between seven and ten years old.
Detective Palchak asked Defendant if he obtained the pictures from the internet, and
Defendant agreed that he had. Defendant told Detective Palchak, “I do have sisters, I just
don’t take pics. . . . I’ve licked [the eight-year-old’s] p***y and fingered her butt.” Then
Defendant sent a non-pornographic picture of a child he claimed to be his sister.
Following this series of communications, Detective Palchak worked with another
FBI agent to identify Defendant as the user of the KiK username “abbissupergirl.” After
obtaining Defendant’s name and address, Detective Palchak contacted the local FBI
office because he was concerned that “there was a kid in jeopardy” since Defendant sent
a picture of a set of panties at his residence.
On cross-examination, Detective Palchak clarified that Defendant stated he never
took pictures of the two girls purported to be his sisters but that Defendant claimed he
“did things” to the girls while they were sleeping. On redirect-examination, Detective
Palchak stated that, based on his communications with Defendant, Defendant was
looking for “homemade child pornography[,]” but Detective Palchak was unable to
ascertain whether Defendant’s disclosures of abuse were true.
Kenneth Ray testified that he was the Assistant Police Chief with the Ashland City
Police Department. Detective Ray obtained a search warrant for Defendant’s home on
Batson Street in Ashland City. When officers arrived, there were “some underage
children” at the home, appearing to be between five and eight years of age. Detective
Ray identified one of the children present in the home as the same child in the non-
pornographic image that Defendant sent to Detective Palchak. Detective Ray stated that
he and the other officers obtained several electronic devices, as well as some children’s
panties, which matched the panties in the images that Defendant sent to Detective
Palchak. Detective Ray said that the FBI report on a cell phone that was recovered from
Defendant’s residence stated that the cell phone had been “wiped remotely.”
Detective Ray testified that Defendant accompanied the officers back to the police
department and, following Miranda warnings, Detective Ray and another detective
questioned Defendant. Defendant told the detectives that “he had been exchanging
information with someone on the internet and sending pictures, and he disclosed that he
had a preference for children, young girls, between the ages of [eight] and [ten].”
Defendant also disclosed that he had been viewing internet pornography for “about two
years” and admitted to “masturbating to the pictures.” Detective Ray stated that forensic
interviews were conducted on the minor children found in Defendant’s home and that
neither child disclosed any abuse.
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On cross-examination, Detective Ray testified that none of Defendant’s DNA was
found on any of the items belonging to the children. On redirect examination, Detective
Ray stated that, in the stationhouse interview, Defendant explained that he preferred
young girls “before they had hair[.]”
Michelle Binkley testified that she worked for PSI Probation in Charlotte. Ms.
Binkley stated that she placed a GPS monitor on Defendant’s ankle on March 20, 2018,
shortly after Defendant submitted a guilty plea, as a condition of Defendant’s remaining
released on bond. She told Defendant to keep the GPS monitor’s battery charged at all
times. Ms. Binkley said that Defendant was supposed to be on the sex offender registry
after his guilty plea submission; thus, Defendant was not allowed near schools, parks, or
childcare facilities. Ms. Binkley stated that, on March 21, 2018, Defendant was tracked
to a residence on Achievement Drive in Nashville, three tenths of a mile from an
elementary school. The same day, Defendant was tracked to a park near a middle school
and a youth community center. On March 25, 2018, Defendant’s battery died, and his
tracking device stopped working. Approximately twenty-two hours later, Defendant’s
GPS monitor began tracking again. When Ms. Binkley noticed that Defendant had failed
to register as a sex offender, she contacted the District Attorney’s office and provided
them information with Defendant’s movements. Due to his failure to comply with the
requirements of his plea agreement as a sex offender, Defendant’s bond was revoked.
Barbara Stevenson testified that she worked for the Tennessee Department of
Correction Board of Probation and Parole in Cheatham County. Officer Stevenson stated
that she worked with Kathleen High, who was a “sex offender officer.” Officer
Stevenson said that Officer High “swore out a warrant based on a sex offender registry
violation” because Defendant failed to register as a sex offender within forty-eight hours
of the trial court’s acceptance of his guilty plea.
Dr. Kimberly Brown testified that she had a Ph.D. in clinical psychology with a
specialization in law. Dr. Brown stated that she was board-certified in forensic
psychology and that she did an internship in forensic psychology at Napa State Hospital
in California and a post-doctoral fellowship in forensic psychology at the University of
Washington. Dr. Brown stated that she worked for Vanderbilt University Medical Center
as an associate professor in the department of psychiatry and as the director of the
forensic evaluation team. Dr. Brown testified that she evaluated Defendant using four
tests and eight research-based risk factors for “child-pornography-only” offenders.
Dr. Brown stated that the risk factors present in this case included (1) that
Defendant was very young at the time of the offense, (2) that Defendant violated the
terms of his bond, and (3) that Defendant was sexually aroused by children. Dr. Brown
stated that the risk factors absent in this case included (1) that Defendant had no known
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sexual offense contacts against children or adults, (2) that Defendant had no prior
criminal history, (3) that Defendant had no known violent history, (4) that Defendant did
not consider criminal activity to be acceptable, and (5) that Defendant had only female
child pornography rather than both male and female pictures. Based on these factors, Dr.
Brown diagnosed Defendant with pedophilia disorder.
To determine whether Defendant’s condition was treatable, Dr. Brown considered
Defendant’s social support from friends and family, his romantic relationship with an
adult female, Defendant’s lack of substance abuse, his lack of minimizing the harm of his
offenses, and the fact that Defendant committed these offenses while in a “major
depressive episode” shortly after his best friend’s murder in April 2016. Dr. Brown also
considered that Defendant was “not very expressive[,]” which would not facilitate
treatment, and that another major depressive episode may increase his risk of re-
offending. Dr. Brown stated that she could not predict Defendant’s success in treatment.
Dr. Brown also noted that Defendant was on bond for one year and four months prior to
pleading guilty and that, during that time, Defendant had no offenses. She stated, “[W]e
know that the longer people are offense[-]free in the community, the greater their risk is
reduced exponentially[.]” She further noted that, while a young age can be a risk factor
for re-offending, Defendant’s
brain [was] still not even fully developed [at the time of the offenses]. So
[Defendant was] more at risk to be impulsive, to use poor judgment, to not
exercise good decision-making. With continued development of his brain,
the -- he should make better choices. That’s the natural development of a
brain. So I think his age of [eighteen] at the time [of the offense] is
significant.
Dr. Brown noted several inconsistencies between what Defendant told her and
what Defendant told officers during his interrogation. Specifically, Defendant told Dr.
Brown that he had no sexual interest in children, but he told detectives that he had a
“fetish for young girls[.]” Defendant also told Dr. Brown that he had been looking at
pornography for two years, “not necessarily child pornography,” but he told detectives
that he “had been viewing these types of images for two years.” Dr. Brown indicated that
these inconsistencies show that Defendant was “somewhat defensive and guarded [and
that he] kind of glosses over things and doesn’t want . . . to see himself as having a
problem. Admits to what he did, but doesn’t think it’s indicative of a larger problem.”
Dr. Brown then stated that, based on current research, there is no relation between a
Defendant’s refusal to admit he has a problem and his risk to re-offend. She said that
there was no difference in the risk of re-offending “between admitters and deniers, but it
does affect participation and amenability for treatment.”
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On redirect examination, Dr. Brown concluded that, because Defendant had no
contact offenses in the past, Defendant was at low risk for a contact sexual offense
against a child. On re-cross-examination, Dr. Brown stated that, when Defendant talked
to Detective Palchak online about “doing things” to his sisters, “it [was] just a part of the
sexual fantasies that are part of the [pedophilic] disorder[.]”
Defendant testified that he was a high school graduate and that he was arrested on
December 9, 2016. Defendant said that he told Detective Ray that he viewed images of
child pornography and that he sent some of those images to Detective Palchak.
Defendant stated that he was in jail for seven weeks after his arrest before he was
released on bond and that he remained released on bond for “a year and a half, give or
take[.]” He said that, while he was released on bond, he was not charged with any other
offense. In March of 2018, Defendant submitted guilty pleas in counts one through five
and reported to Ms. Binkley to receive an ankle monitor on March 20, 2018. Defendant
stated that he was not aware that he only had forty-eight hours after submission of his
guilty plea in which to register as a sex offender. He said that he understood that he had
to inform Ms. Binkley of his residence, even if he moved for only a short time.
Defendant agreed that he told Ms. Binkley he would be living with his grandfather and
that, for two days after he received his ankle monitor, he was staying at a friend’s house
because he was going to work with his friend’s father.
Defendant testified that he was “disgusted” by the charges and “disappointed” in
himself. He said he felt “sorry” for the girls in the pictures and that he “kind of threw
[his] life away just making a stupid mistake like that.” Defendant stated that he knew his
sentence would be for twenty years and that he was asking the court to “give [him] an
opportunity on community corrections.”
On cross-examination, Defendant stated that he accessed child pornography in
nine or ten sessions within two years. He said that he would search for child
pornography on Google and in pedophilia forums online which would direct him to a file-
sharing site. Defendant bookmarked a page of child pornography which had thirty to
forty images. Defendant testified that, before his friend’s murder in April 2016, he
accessed child pornography once every two months. After his friend’s murder, he would
view child pornography during his free time for “a day or two straight” at a time. From
the time Defendant graduated from high school in May 2016 until he was arrested in
December 2016, Defendant was not working or attending school but spent his days
watching television, playing games, and looking at child pornography. Defendant
admitted that some of the pictures that he sent to Detective Palchak depicted “molestation
and rape[.]” Defendant stated that people who take such pictures should go to prison and
that people who view such pictures and “don’t want to stop” should also go to prison.
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On cross-examination, Defendant stated that he was sixteen years old when he
started viewing pornography. He said that he knew he “had a long way to go” with
maturity and that he wanted to change. Defendant said that, when the GPS tracked him
to a park near a school, he was picking up a friend from the youth center who had been
playing basketball. On redirect examination, Defendant stated that, when he viewed the
pictures of child rape, he “didn’t think about the people” in the pictures but that he now
understood that “what [he] did [was] wrong and why that’s so wrong.” He stated that he
took the picture of his cousin’s panties and sent it to Detective Palchak because he was
consumed with “want[ing] to get pictures” and because he “wasn’t really thinking at the
time.”
Upon examination by the trial court, Defendant testified that he told Detective
Palchak “I like to play with my younger sisters” because he thought that was what he
needed to say to get more pictures. Defendant stated that, the first time he viewed
pornography, it was “regular” pornography of adults. After a few months, Defendant
decided to seek out child pornography because he “thought it was more erotic, more
taboo.” Defendant testified that he was not sorry he “got caught” because it brought his
family closer together and that they started attending church again. Defendant assured
the court that, if the court imposed alternative sentencing, Defendant would not re-offend.
Defendant stated, “I know what it’s like to be away from my family, and I don’t want to
have to feel that again. I don’t want to punish them for what I do, make them have
sleepless nights . . . crying for me.” Defendant told the court that, after his guilty plea
submission, he failed to register as a sex offender because he believed that someone
would contact him when it was time to register. He also stated that he “didn’t think it
was that big a deal” for him to spend two nights at a friend’s house after he told Ms.
Binkley he resided with his grandfather. Defendant said that he did not view or discuss
child pornography while staying at his friend’s house.
Defendant stated that he masturbated to the pictures of children “just for the thrill”
but that he did not “feel like [he] was the person doing the acts to . . . the individual in the
picture[.]” Defendant testified that he “kind of felt bad” and “scared” when he sent
Detective Palchak a picture of his cousin, so he “stopped and blocked” Detective
Palchak’s number. Defendant agreed that child pornography “hurts kids” and that
viewing it creates a demand for it.
Following closing arguments, the trial court placed on the record its findings
regarding sentencing factors. The trial court applied with substantial weight
enhancement factor (3), that there was more than one victim, because “even though it’s
not a direct-contact victim like where somebody gets assaulted or raped or something like
that directly, this behavior helps fuel the industry and leads to more victims being
victimized[.]” Tenn. Code Ann. § 40-35-114(3) (2018). The trial court applied with little
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weight enhancement factor (1), history of criminal behavior, because even though
Defendant had no criminal record, Defendant testified to looking at child pornography for
two years prior to his arrest. Tenn. Code Ann. § 40-35-114(1) (2018). The trial court
then applied with substantial weight enhancement factor (7), that the offense involved a
victim and was committed to gratify the defendant’s desire for pleasure or excitement,
because Defendant admitted to masturbating to the images. Tenn. Code Ann. § 40-35-
114(7) (2018).
Defense counsel requested that the trial court consider mitigating factors (1), (6)
and (13). The trial court declined to apply mitigating factor (1), that the defendant’s
criminal conduct neither caused nor threatened serious bodily injury, because “the
conduct does cause serious bodily injury in future situations because, again, it fuels the
industry of child pornography.” Tenn. Code Ann. § 40-35-113(1) (2018). The trial court
applied mitigating factor (6), that the defendant lacked substantial judgment in
committing the offense due to young age. Tenn. Code Ann. § 40-35-113(6) (2018).
The trial court noted that Defendant was not statutorily eligible for probation
under Tennessee Code Annotated section 40-35-303(a) because Defendant was convicted
of aggravated sexual exploitation of a minor pursuant to Tennessee Code Annotated
section 39-17-1004. However, the trial court agreed that Defendant was eligible for
community corrections. Nevertheless, the trial court found that confinement was
“necessary to avoid depreciating the seriousness of the offense or confinement is
especially suited to provide an effective deterrence to others likely to commit similar
offenses.” Tenn. Code Ann. § 40-35-103(1)(B) (2018). The court stated:
[T]he Court does consider that there’s a high deterrence value regarding
this particular offense, part of that is the fact that the public needs to know
and understand that –. . . [D]efendant’s actions . . . are continuing to
encourage individuals to take pictures and put them on the internet of
children under the age of [eighteen] in sexual activity -- or simulated sexual
activity. And, of course, society should not tolerate that. You know, child
pornography is about as serious as it gets. It says, before the judge can
deny alternative sentence for deterrence, there must be some proof that the
sentence will have a deterrent effect. It says, to find a deterrence cannot be
merely conclusionary, [sic] but child sex cases seem to be listed as an
exception here, based on case law. Those offenses by their very nature
need no extrinsic proof to establish the deterrent value of punishment.
In denying alternative sentencing, the trial court also considered that “measures
less restrictive than confinement have . . . recently been applied unsuccessfully to the
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defendant” because Defendant violated the terms of his bond after his guilty plea
submission. Tenn. Code Ann. § 40-35-103(1)(C) (2018).
The trial court stated that Defendant did not meet his burden to establish that
alternative sentencing “will subserve the ends of justice and be in the best interest of both
the public and [D]efendant.” The trial court stated that “the nature and circumstances of
the criminal conduct involved . . . paint a terrible picture.” See Tenn. Code Ann. § 40-35-
210(B)(4) (2018). Moreover, the trial court found that Defendant lacked “potential for
rehabilitation[,] including the risk that during the period of . . . alternative sentencing
[D]efendant will commit another crime” because Defendant did not comply with the
conditions of his bond after he submitted a guilty plea. See Tenn. Code Ann. § 40-35-
103(5) (2018). The trial court denied alternative sentencing and imposed a sentence of
twenty years’ incarceration at thirty percent. This timely appeal now follows.
Analysis
Defendant argues that the trial court abused its discretion when it found that
alternative sentencing was “not sufficient as punishment in this case.” Defendant
contends that the trial court “did not fully consider the arguments as to sentencing
alternatives.” Further, Defendant asserts that the trial court did “not consider[] the
guiding purposes and principles of sentencing[.]” Defendant emphasizes that his
“argument that the [t]rial [c]ourt misapplied sentencing factors is but a part of the [t]rial
[c]ourt’s overall failure to properly account for the purposes and principles of
sentencing.” Finally, Defendant argues that incarceration is “not the least severe measure
necessary to achieve the purpose of the sentence.”
The State responds that incarceration is appropriate in this case because Defendant
exchanged child pornography online and also refused to comply with the conditions of
his bond release.
We first note that the record on appeal does not contain the guilty plea submission
hearing transcript. The absence of the guilty plea submission hearing transcript is
particularly important because
[f]or those defendants who plead guilty, the guilty plea hearing is the
equivalent of trial, in that it allows the State the opportunity to present the
facts underlying the offense. For this reason, a transcript of the guilty plea
hearing is often (if not always) needed in order to conduct a proper review
of the sentence imposed.
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State v. Keen, 996 S.W.2d 842, 843-44 (Tenn. Crim. App. 1999) (citations omitted). It is
Defendant’s duty to prepare the record “as is necessary to convey a fair, accurate and
complete account of what transpired with respect to those issues which are the bases of
appeal.” Tenn. R. App. P. 24(b). “Where the record is incomplete and does not contain a
transcript of the proceedings relevant to an issue presented for review, or portions of the
record upon which the party relies, an appellate court is precluded from considering the
issue.” State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993) (citing State v. Roberts,
755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)). However, “when a record does not
include a transcript of the hearing on a guilty plea, the Court of Criminal Appeals should
determine on a case-by-case basis whether the record is sufficient for a meaningful
review under the standard adopted in [State v. ]Bise.” State v. Caudle, 388 S.W.3d 273,
279 (Tenn. 2012).
Here, the State concedes, and we agree, that the record is sufficient for meaningful
review in this matter because seven witnesses testified at the sentencing hearing and the
exhibits to the hearing included the evidence that would have been presented at trial.
Therefore, we will address Defendant’s claims on the merits.
The sentence range for a Range I standard offender, convicted of a Class C felony,
is three to six years. See Tenn. Code Ann. § 40-35-112(a)(3) (2018). When the record
clearly establishes that the trial court imposed a sentence within the appropriate range
after a “proper application of the purposes and principles of our Sentencing Act,” this
court reviews the trial court’s sentencing decision under an abuse of discretion standard
with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).
The party challenging the sentence on appeal bears the burden of establishing that the
sentence was improper. Tenn. Code Ann. § 40-35-401 (2018), Sentencing Comm’n
Cmts.
To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2014); Bise, 380 S.W.3d at 706. While the trial court should
consider enhancement and mitigating factors, such factors are advisory only. See Tenn.
Code Ann. § 40-15-114 (Supp. 2015); see also Bise, 380 S.W.3d at 699 n.33, 704; State
v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). A trial court’s “misapplication of an
enhancement or mitigation factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706.
The intent of the Community Corrections Act was to “[e]stablish a policy within
the state to punish selected, nonviolent felony offenders in front-end community based
alternatives to incarceration, thereby reserving secure confinement facilities for violent
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felony offenders.” Tenn. Code Ann. § 40-36-103(1) (2018). Eligible offenders under the
Community Corrections Act include:
(A) Persons who, without this option, would be incarcerated in a
correctional institution;
(B) Persons who are convicted of property-related, or drug- or
alcohol-related felony offenses or other felony offenses not involving
crimes against the person as provided in title 39, chapter 13, parts 1-5;
(C) Persons who are convicted of nonviolent felony offenses;
(D) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
(E) Persons who do not demonstrate a present or past pattern of
behavior indicating violence; and
(F) Persons who do not demonstrate a pattern of committing violent
offenses.
Id. § 40-36-106(a)(1)(A)-(F) (2018).
Simply because an offender meets the minimum requirements under the
Community Corrections Act “does not mean that he is entitled to be sentenced under the
Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App.
1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987)). Instead,
the Act’s criteria “shall be interpreted as minimum state standards, guiding the
determination of eligibility of offenders under this chapter.” Tenn. Code Ann. § 40-36-
106(d) (2018).
In his brief, Defendant does not explain which sentencing factors the trial court
misapplied or how it misapplied them, nor does Defendant explain which purposes and
principles of sentencing the trial court misapplied or how it misapplied them. Defendant
appears to claim that incarceration was inappropriate in this case because incarceration
was “not the least severe measure necessary to achieve the purpose of the sentence.” See
Tenn. Code Ann. § 40-35-103(4) (2018).
In State v. Jessica Tramel, the defendant complained that the trial court failed to
consider Tennessee Code Annotated section 40-35-103(4) and (6) when it decided
against alternative sentencing. No. E2015-00694-CCA-R3-CD, 2016 WL 3570371, at *9
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(Tenn. Crim. App. June 23, 2016), perm. app. denied (Tenn. June 23, 2016). In affirming
the trial court, this court found that
[t]he trial court’s extensive explanation for denying the appellant’s request
for alternative sentencing demonstrates that the court carefully considered
the principles applicable to sentencing. The court went into great detail,
explaining why each factor weighed in favor of or against an alternative
sentence. The court found that very few factors weighed in favor of the
appellant’s request.
Id. In the same way, the trial court in the present case did not expressly address
Tennessee Code Annotated section 40-35-103(4) in its determination against alternative
sentencing. However, the trial court “went into great detail, explaining why each factor
weighed in favor of or against an alternative sentence.” Id. In this case, the trial court
considered factors set out in code sections 40-35-210, 40-35-113, 40-35-114, 40-35-103,
and 40-35-303 and stated on the record the reasons for the sentence it imposed. Thus, the
trial court’s sentencing decisions are entitled to a presumption of reasonableness, and
Defendant has failed to establish any abuse of discretion. He is not entitled to relief.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
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ROBERT L. HOLLOWAY, JR., JUDGE
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