# FILED

May 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

STATE OF TENNESSEE, ) No. 01C01-9701-CC-00034 ) Appellee ) ) MARSHALL COUNTY V. ) ) HON. CHARLES LEE, WILBERT HELLER, ) JUDGE ) Appellant. ) (Sentencing) ) )

For the Appellant: For the Appellee: Robert Lee Marlow John Knox Walkup Thomas A. Davidson Attorney General and Repor ter 107-C West Commerce Street Lewisburg, TN 37091 Karen M. Ya cuzzo Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493

W. Mic hael McCo wn District Attorney General Weakley E. Barnard Assistant District A

ttorney Marshall County Courthouse Lewisburg, TN 37091

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge2 OPINION

The appellant, Wilbe rt Heller, appeals as of right the sentence he received in the Marshall County C ircuit Court upon his pl ea of guilty to the offense of aggr avated sexual battery. The tr

ial court sentenced appellant to nine years, six

months in the Department of Correction as a Range I offende r. Appellant’s only issue on appeal is whether he is eligi ble for community correcti ons under the special needs pr ovision. See Tenn. Code Ann. §40-36-106(c) ( 1990). We affirm the judgment of the trial court. Appellant was indicted for a 1992 aggravated sex ual battery and a 1996 attempted aggravated sex ual battery of his adopted daug hter. After admitting to numerous instances of sexual c ontact with the vict im, he pled guilty on J uly 3, 1996 to the aggravated sex

ual battery charge. P ursuant to a plea agreement, the remaining charge was dismiss

ed, but there was no agr eement as to his sentence. At a subsequent sentencing heari ng, the trial court sent enced appellant to serve ni ne years, six months i n the Department of Correction. It denied appellant’s req uest for community corrections, stating that appellant was an ineligible offende r. When a defenda nt chall enges t he length, rang e, or man ner of se rvice of a sentence, we must conduct a de novo review of the record . Tenn. Code Ann. §40-35- 401(d) (1 990). Th e senten ce impos ed by the t rial court is accomp anied by a presumption of correctness and the appealing party carr

ies the burden of showing that the sentence is improper. Tenn. C ode Ann. §40-35-401 Sentencing C ommission Comments. The presumption, however, is conditioned upon an affirmative showing in the record that the trial c ourt considered the sentencing principles and all rel evant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Because, in this case, the tr ial court carefully c

onsidered the mandates of the Community Corrections Act and applicable law, we accord its judgment the presumption of correctness.3 Appellant concedes that he is i neligible for community c orrections under the minimum criteria set forth in Tennessee Code Ann otated section 40-36-106(a). As a sexual offender, appellant committed a crime against a person, which prohibits his placement in such a program. Tenn. Code Ann. §40-36-106(a)(2) (1990). Nevertheless, appellant argues that he is elig ible for community correc tions under the special needs prov ision. Tenn. Code Ann. §40-36-106( c) (Supp. 1990). That section provides: Felony offenders not otherwi se eligible under subsec tion (a), and who would be usually cons idered unfit for probation due to his tories of chronic alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correcti onal institution, may be c onsidered eligible for punishment in the community under the provisions of this chap ter. Appellant contends that he qual ifies for two reasons: (1) because the legislature has recognized that sex

ual offenders are mentally ill and in need of treatment; and (2) because expert testimony at the sentencing hearing demonstrated that a program could be developed for his tr eatment. The trial court considered these arguments at the sentenci ng hearing, but determined that applicable case law interpreting the special needs subsection prohibited appellant’s eli gibility. We agree. This Cour t has held on numerous occasions that in order to be eligible for community corrections sentencing under subsection (c), the offender must be statutorily eligi ble for probation. See e.g. , State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996); State v. Staten , 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989); State v. Anand Franklin , No. 01C01-9603-CR00101 (Tenn. Crim. App. at Nashv ille, August 15, 1997), perm. app. denied (Tenn. 1998); State v. Ronald Wayne Strickland , No. 02C01-9608-CC-00 290 (Tenn. Cr

im. App. at Jackson, July 24, 1997); State v. Reginald Bonner, No. 02C01-9507-CR00191 (Tenn. Crim. App. at Jacks on, August 28, 1996); State v. L anny Crowe , No. 01C01-9503-CC-00064 (Tenn. Cr im. App. at Nashville, July 6, 1995); State v. Scotty G. Kilgore , 03C01-9408-CR-00278 (Tenn. Crim. App. at Nashville, June 13, 1995 );1 In view of our above conclu sion, i t is unnecessar y for us t

o determine whether appellant factuall y sati sfies the r

equirements for t he special ne eds provisi on. Therefore, we do not address appellant’s argument that he qualif ies under t he special ne eds provisi on because the l egislat ure has classified all sex offenders as “mentally ill persons.” See Tenn . Code A nn. §33- 6-302 (1 984). 4 State v. Timothy Blackburn , No. 02C01-9111-CC-00253 ( Tenn. Crim. App. at Jackson, June 30, 1993), perm. app. denied (Tenn. 1993); State v. Robert Wilson, Alias Tiny , No. 03C01-9209-CR-00305 (Tenn. Crim. App. at Knoxvi lle, March 22, 1993). Appella nt is stat utorily ineligible for probation because his sentenc e is greater than eight years and he w

as convicted of aggrav ated sexual battery. Tenn. Code Ann. §40-35-303(a) (Supp. 1992). As a result, appellant fails to qualify under the speci al needs provision. 1 We are also unpersuaded by appellant’s ar gument that the enactment of statutes mandating the standardi zed treatment of all sex offenders modifies our pervious holdings or

otherwise influences his eligibility for community corrections. See Tenn. Code Ann. §§39-13-701 - 709 (Su pp. 1995). Those statutes establi sh a comprehensive system of ev aluation, identification, tre atment, and continued monitoring of all sex offenders within the criminal justice system whether they are in the department of correction, in c ommunity corrections, on p robation, or on parole. See Tenn. Code Ann. §§39-13-702(a), 706 (Supp. 1995). One of its specific requirements is that all sex offenders be evaluated “for risk to victims or potential victims, identification , amenability to treatment, a nd behavior management” and requires that the trial

court consider that eva luation in determining the sentence. Tenn. Code An n. §39-13-705 (Supp. 1995). Ho wever, nothing in the plain language of the statute changes a sexual offender’s eligibility

for community corrections under existing law. Our review of the record supports the trial court’s determination that appellant is not eligible for community corrections under the mini mum statutory criteria,nor under the special needs provision of that statute. Accordingly, we affirm appellan t’s sentence of nine years, six months in the Department of Correc tion.** Judge Jones died on May 1, 1998, fol lowing a di stingui shed career as a tr ial at torney andas a respected member of this Court since his ap pointment in November 1986. He will be greatl y missed. 5 _______________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

(Not Participating) ** JOE B. JONES, JUDGE

DAVID H. WELLES, JUDGE