### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M arch 19, 2002

STATE OF TENNESSEE v. JERRY ALLEN KETCH UM

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 a ttempted aggravated

sexual battery. Pursuant to his plea agreement, the Defendant re ceived a four-year sentenc e, with the manner of service of the sentence to be determined by the trial court. Following a sentencing hea ring, the trial cour t ordered that the Defendant serve the four-ye ar sentence in theTennessee Department of Correction. The Defend ant now a

ppeals, a rguing tha

t h e should hav e received some form of alternative sentencing. Concluding that the record supports the trial court’s denial of alternative sentencing, we affirm t he judgme

nt of the tr

ial cour t.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delive red the o pinion of t

he court
, in which G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.

Nat H. Thomas, Kingsport, Tennessee (on appeal); and Lar ry R. Dillow, Kingsport, Tennessee (on appeal a nd at tria l), for th e Appella nt, Jerr y Allen Ke

tchem.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; H. Gree

ley Wells , Jr., Dist

rict Attor ney Gene ral; Ja mes Good win, Assistant District Attorney General; Barry P. Staubus, Assistant District Attorney General; and Teresa Murr ay-Smith, Assistant District Attorney General, for the Appellee, State of Te nnessee.

OPINION

The Defend ant was i ndict ed by the Sullivan County Grand Jury for aggravated sexual battery, a Class B fe

lony. Pursu ant to a plea agreemen t, the Def endant e ntered a plea of n olo contendere to attempted aggravated s exu al battery and received a four- year sentence, with the

manner of service of the sentence to be deter mined by the trial court. At the sentencing hearing, the parties agreed to the following stipulation concerning the evidence in the case:1 It is the poli cy of t his Court t o refe r to minor vi cti ms in cas es of sexual abuse by i niti als r ather t han by name.

2 Ryan and C. O. were the Defendant’s s tep-chi ldren at the ti me of the offense.

-2- If this matte

r had gon e to trial, t he State’s proof would have been that on or about October 11 th , 1999, the victim [C. O.] 1 was in her moth er’s ro om, laying [sic] on the bed, watching

televisio n. The defendant came into the room naked, pulled dow n [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 w

hile [C. O.] was there so that he could protect her.

[C. O.] was t

aken lat e r that mor

nin g to be examined by Dr. Ben Altman, at the Bristol Regional M edical Ce nter Eme rgency R oom. Dr. A

lt man took a history, including the victim describing what had happened to her the night before.

Dr. Altman examinedthe victim and discovered redness in the perianal region. Dr

. Altman co ncluded t

hat this wa s consiste

nt with sex

ual assa ult.
These acts all occurred in Sullivan County, Tennessee.

. . . .

. . . The victim was seven (7) on October 11 th , 1999. Less than thirteen (13) years of age.

At the sen

tencing h earing, the Defe

ndant pre sented th

e testimon

y of two lon gtime fri ends, who state d tha t the Defendant had a good reputation in the community and that he had a good reputation for truth and veracity. The Defe ndant’s adult daughter and adult son from a prior marriage next testified that the Defendant had been a good fa t herto them and would be a good candidate for probation or alternative sentenc ing.

The Defendant then testified. He stated that he w a s fifty-eight years old at the time of the sentencing hearing and that he had been a lifelong reside nto f Bristol, Tennessee. The Defendant testified that he ha

d worked for East man from 1 977 until

his recent termination due to the entry of his nolo contendere plea to attempted aggravated se xual battery. The Defendant discussed his filed written response to the Sexual Offender Risk Assessment that had been pe rformed 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.-3-

The Defend ant testif

ied th at he was wor

king as an electrician with his two brothers at the time of the sentencing hearing. H e te stified th at he had been mar ried and divorce d twice. I

n his opinion, his second fo r mer wife was responsible for the false a ccusations of aggravated sexual battery because

the Defe ndant h ad accu sed her of adultery and because he told her she was going to “lose the children.”

On cross-examination, the Defendant admitted that his po lygraph t

est (take n as part of his evaluation by C ounseling and Consultation Services in Johnson City, Tennessee) showed deception. The Defendant reported that he quit drinking two year s prior to the sente ncing hea ring, af ter his la st driving while intoxicated conviction in November of 1999.
Finally, the defense presented the testimony of Brenda Darlene Brown, who stated that she manage s a bridal

boutique a

nd is curr ently invo lved in a r

elationsh ip with the

Defend ant. Ms. Brown testi fied that the Defendant is a “wonderful fa ther” and “an all round good person.” Sh e explainedthat she had written the Defendant’s response to the Sexual Of

fender Risk Assessment for him, because the Defendant “writes slow.”

The State presented the testimony of the vi ctim’s father, who discussed the impact of the crime on his daughter. The Court also considered the pre-sentenc e 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 fouryear sentence in the Tennessee Department of Correction. When a criminal defendant challenges the length, range, or manner of service of a sentence, the re viewing court must condu c t a de novo review of the se

ntence with a presumption that the d etermina tions made

by t he trial c ourt are

correct. Tenn. Code Ann. § 40-35-4 01(d). T his presumption, however, “is conditioned upon the affirmative showing in the record that the trial court considered the sente ncing p rinciple s and all r

elevant 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 sentenc e is pu re ly de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its sentencing determination , the tria l court, at the conclusion of the sentencing hearin g, determines the range of sentenc e and then determines the specific sentence and the pr opriety of s entencing al ternatives by c onsidering (1) the evidence, if any , received at the trial and the sentencing hearin g, (2) the p resente nce rep ort, (3) the princ iples of se ntencing and arg uments as to sentencing alternatives, (4) the nature and ch aracte risti cs of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statemen ts the defendant

wishes to make in the defendant's behalf about se ntencing, 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 e nhancement or mitigating factors present

.-4-

Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitiga ting factors, the court

must start at the presumptive sentence, enhance the sente nce as appropriate for the enhanc ement factors, and then reduce

the sente nce in the range as appropriate f or the mitigating factors. Id. § 40-35-210(e). The weight to be given eac h factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d at 123. Howeve

r, the se ntence m ust be adequately

supporte d by

the rec ord and c omply

with th e purposes and principles of the 1989 Sentencing Reform Act. State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a sentence, the trial court must make specific findings of fact on the r ecord supporting the sentence. Tenn. Code A nn. § 40-35-209(c). The record should also include any enhancement

or mitiga ting fa ctors ap plied 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 recor d. The purpose of recording the cour

t’s reaso ning is to

guara ntee the prepar ation of a proper r ecord f or appellate review. State v. Er

vin , 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 lawf

ul sent ence after having given due consideration and proper weig ht to the factors and principles set out under the sentencing law, and tha t 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 resu lt." 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 bee n granted some form

of alternative sentenc ing. Tennessee Co de Annota ted § 40-3 5-102(5) providesas follow s: In recognition that

state prison capacities and the funds to build an d 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 shallbe given first priority regarding sentencing involving incarceration . . . . A defenda

nt who doe s not fall within this cla ss of offenders “and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felony is presume d to be a f avorabl e candida te for alte rnative sentenc ing in the a

bsence o f 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 e ight years or less and not an offender for whom incarceration

is a prior

ity is s ubject to alternative sentencing and that a sentence othe r than incarceration

would re sult 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). T he Defendant, as a standard offender convicte d of a Clas s C felony, see Tenn. Code Ann. § 39-13-213(b), is presumed to be a favorable candidate for alterna tive sentencing.

However, all offenders who meet the criteria ar e not entitled to relief; instead, sentencing issues must be determined by the facts and circum stances of each case. See State v. Taylor , 744-5-

S.W.2d 919, 922 ( Tenn. Cri m. App. 1987) (citing Moss , 727 S.W.2d at 235). Even if a defendant is presume d to be a favorable candidate for alternative sentencing under Tennessee Code Annotated § 40-35-1 02(6), th

e statutor y presump tion of an

alterna tive sente nce may b e overc ome if (A) [c]onfinement is necessary to protect society by restraining a defendant who has a long histor

y of criminal condu ct; (B) [c]onfi nem ent is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effec t ive dete rrence to others likely to commit similar offenses; or (C) [m]easures less restrictive than confinement

have fr equently or rece ntly 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 potentialfor the rehabilitation or treatment of a defendant should be considered

in determining the sentence alternative or length of a ter m 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 ha ve been granted p robation. In determining whether to grant or deny probation, the trial court may consider the circumstances of the offense; the defendant’s criminal record, backgr ound 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 estab lishing suit

ability for probation. Tenn. Cod

e Ann. § 40 -35-303(

b); Ashby , 823 S.W.2d at 169.
The trial court made detailed findings and caref ully weigh

ed all of the ap propria te facto rs, bothfavorable and unfavorable, in deter mining that the Defendant had not established his suitabi lity forprobation. The trial court considered the information in the presente nce report, the Sexua l Offender Risk Asses sment, appropr iate vict imimpact evidence, and the testimony of the witnesses at the sentencing hearing. The trial court po inted o ut that certain factors weighed in favor of the Defendant’s request for probation. These favorable f actors, as pointed out by the trial court, include that the Defendant would have community s uppor t if he received alternative sentencing, that the Defendant

had a goo d work re cord at T ennesse e East ma n, that the Defendant had worked “successfully” from the early 1970's until the convicti on, that the Defe ndant is a good fath

er to his adult childre n from a p

rior mar riage a nd that the

Defend ant has “ solidifie d his rela tionship with God.” The trial court

then assessed the negative factors, including the Defe ndant’s prior criminal convicti ons, the negative aspects of the Sexual Offender Risk Assessmen t, a nd the victim impact evidence. The presentence report ref lects that betweenApril 3, 199 6 and May 17, 2000, the Defendant

received two speedin g convict ions and th

ree dri ving while

intoxica ted convi ctions. During the same time period, the Defendant also rece ived convictions for crim

inal tres pass, public intoxication, driving without a license, assault, and driving while his license was suspended. The trial court al so took note of the fa

ct that the

Defend ant abuse d a positio n of priva te trust in committing the offense. See Tenn. Code Ann. § 40-35-114(15). The trial court car efully balanced3 In entering an Alford plea , a de fendant “face d with s trong e vidence of gui lt and no subs tantial evide nt iar y support for [hi s] cl aim of innocence” may refrain from adm itting h is culp ability a nd a ccep t a sente nce

. North Car oli na v. Alford , 400 U.S. 25, 91 (1 970).

-6- all of the relevant factors and determined tha t “the negative factors indicating a denial of probation outweigh any potential favorable factors set out in any of the pr oof or anything submitted.”

In our view, the record supports the sentence impo sed. 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 Defe ndan t’s de nial of guilt. Our supreme court ha s held

that a Defendant’s failure to acknowledge culpability for

his or her actions may also suppo rt a findi n g that a sentence of confinement is necessar y to avoid depreciating the seriousness of an offense. See State v. Gutierrez , 5 S.W.3d 641, 647 (Tenn. 1 999); see also State

v. Donald Paul Presley
, No. E2000-00592-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 629, at *26 (Tenn. Crim. App. , Knoxville, Aug. 14 , 2001); State v. Thomas Wayne Shields , No. W2000-01524- CCA-R3-CD, 2002 Tenn. Cri m. App. L EXIS 18, at *33 (Tenn. Cr im. App., Jackson, Jan. 4, 2000). Further, this Court has held that an Alford plea does not prohi bit a trial court from c onsi derin g a defendant’s failure

to acce pt respon sibility

for his criminal c onduct asit relate s to his rehabilitation potentia l. State v. Homer L. Evans , No. E2000-00069-CCA-R3-CD, 2001 Tenn. Cri m. App . LEX IS 196, at *14 (Tenn. Crim. App. , Knoxville, Mar. 20, 2001). Finally, in our view, the D efendant’s criminal history and hi s abuse of the position of trust as a step-father are suff icient to rebut the presumption that he is a favorable candidate for a lternative sentencing, including probation.

For these reasons , we concl ude that t he presu mption of a

lternati ve sente

ncing w as su fficien

tl y rebuttedin this cas e and that the trial court thus did not

err by imposing a sentence of co nfineme

nt. Accord ingly , we AFF

IRM the judgme

nt of the tr

ial cour t.

___________________________________ ROBERT W. WEDEMEYER, JUDGE