# FILED
April 19, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 02C01-9808-CC-00251 Appellee ) ) HARDIN COUNTY vs. ) ) Hon. C. Creed McGinley, Judge HAROLD DEWA

YNE JARRET

T, ) ) (Thr ee Co unts - Sex ual B atte ry) Appellant )
For the Appellant : For the Appellee : Richard W. DeBerry Paul G. Summers Asst. District Publi c Defender Attorney General and Repor ter 117 Forrest Avenue North Camden, TN 38320 Patricia C. Kussmann Assistant Attorney Gener al Criminal Justice Div

ision Guy T. Wilkinson 425 Fifth Avenue North District Public Defender 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
G. Robert Radford District Attorney General John W. Overton Asst. District Attor

ney General P. O. Box 484 Savannah, TN 38372

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The appellant was indict

ed on two counts of

sexual batt

ery and one count

of aggravated sex ual ba ttery. 2 OPINION
The appellant, Harold Dewa yne Jarrett, entered “be st interest” guilty

pleas to three counts of sexual battery in the Circuit Court of Hardin County on June 9, 1998. 1 The nego tiated p lea agree ment pro vided tha t the app ellant wou ld receive three two year sentences to be served consecutively and that the trial court would determine the manner of service of the sentences. At the sentencing hearing, the trial court impos ed penitentia ry confinemen t. The appella nt appeals this ruling, arguing that the trial

court should have gra nted him either total probation or placement in

a community

correctio ns program.
Finding no error in the sentencing decision of the tr ial court, we affirm.

Background
The appellant’s convictio ns arose from incidents in ear ly 1998 involvi ng three minor children, ages sev en, fourteen, and fifteen. The appellant was a neighbor and friend of the victims’ parents and the victims often visited at the app ellant’s residence. The basis for the ins tant charges stem from the appell ant’s sexual contact of the juvenile v ictims in the appellant’s automobile and in his home.
Despite these allegations, the appellant adamantly denies his culpa bility in these offenses. Rather, he maintains that the “three girls l ied about me messing with them.” The appellant provided his version of the events which entailed his driving the three g irls to Wal-Mart so they could purchase film. The appellant dropped the girls off at Wal-Mart whi le he waited in his v ehicle in the parking l ot.3

Inside the store, the three girls were arrested for shoplifting and taken to “city hall.” Frightened by what

would happen to them, the gi rls informed police officers that the appellant “had handle[d] the gi rls the wrong w ay.”
At the time of the sentencing heari ng, the appellant, a life-lon g resident of Hardin County, was

a sixty-seven year old divorcee. The appellant has no prior criminal record. He has never abused alcohol nor taken any illegal su bstance. The appellant quit school in the sixth grade in or der to help on his parents’ farm. The appellant’s medical conditi on is in a state of deteriorati on. Since the late 1970's, the appellant has suffered an “episode of Bell’s Palsy . . . , stroke (1981-82), heart surgery (1989-90), second heart at tack (1995), an d on-going treatm ent for high blood pressure.” He is currently taking medication for his heart condition along with blood pressure medication.
The appellant’s granddaughter testified that, if granted prob ation, the appellant would live with family members and she guaranteed that family memb ers would look after him. She ex plained that, considering the appellant’s deteriorati ng health, she would like to spend time with him before he dies.
In addition to this testimony and the pre-sentence report, the trial court also had the opportunity to exami ne a mental evaluation of the appell ant conducted pursuant to Tenn. Code Ann. § 39-13-7 05 (1998 Supp.), which r evealed: The examinee’s level of denial regarding his cur

rent conviction demonstrated severe avoi dance. He denied participati on in any offense against the victims. His lack of acceptance of respon sibility (denial), poor insight, and failure to learn from the experience increases the likelihood of reoffending. Further, the exami nee has developed, expressed, and seems to have internaliz ed his story of how he was victimized for the offense(s). This will make treatment more complicated and difficult. The examinee, based o[n] his level of denial, should participa te in individual followed by group treatment in order to reduce his tendency to reoffend. . . .4 In addition, the subject’s t endency to associate himself with younger females and/or males should be address ed, processed, and forbidden. After considering all the evidence presented, the tr ial court denied the appellant any form of an alternativ e sentence and imposed a sentence of confinement in the Department of Correc tion. Specifically, the trial court found: We have a person before the Court that quite obviously is a sex ual deviate and has a pattern of behav ior that poses a substantial risk to the community at large. .

. .

. . . . . . [T]his is the type of ac tivity that the publi c deserves to be protected from. Particularly in l ooking at the report that w as filed, Sex Offender Presentence Clinical Ev aluation, it gives the Court great cause for concern because of an indication i n there of his lack of acceptance or responsibility, his poor insight, and failure to learn from the experience increases the lik elihood of reo ffending. The Court feels . . . that this pe rson poses a very hi gh likelihood of recidivism . He is not t he type th at would be subject t o effec tive rehabilitation. That alternative sentencing would be of no eff ect in this because of his lack of cooperation in compiling the sex off ender’s report plus the nature and circumstances surrounding these of fenses.

Analysis When a defen dant challenges the manner of service of his sentence, th is court must conduct a de novo review with the presumption that the determinati on made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1997). Th is presumption only applies, however, if the record shows that the trial court properly considered relevant sent encing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn.1991). Moreover, the appellant maintains the burden of show ing that the sentence imposed by the tria l court is improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401 (d).
The appellant

first argu es that the tr

ial court s hould have g ranted him a sentenc e pursua nt to the

Communi ty Correctio ns Act. A defenda nt convicted of a crime against the person, as provided in title 39, chapter 13, parts 1-5, is not eligible5

for a community corrections sentence. See Tenn. Code Ann. § 40-36-106(a)(2) (1996 Supp.). Sexual battery is codified at Tenn. Code Ann. § 39 -13-505 and is, therefore, a crime against the person. Notwithstandi ng his ineligibil ity based upon the classification of offenses, he w ould, nevertheless, remai n eligible for placement in the community correcti ons program, if the proof in the r ecord established a causal connection between the cri mes committed and a history of chr onic alcohol abuse, drug abuse or mental health pr oblems. See Tenn. Code Ann. § 40-36-106(c). See also State v. Boston , 938 S.W.2d 435, 43 8 (Tenn. Crim. App. 1996). The record reflects no such proof. Indeed, the appellant denies that he has a “s pecial need” as required by the statute. Accordingly, the appellant is not eligible for a sentence pursuant to the Community Cor rections Act.
Nonetheless, the appellant remai ns statutorily elig ible for probation. See Tenn. Code Ann. § 40-35-303(a) (1 997). His eligibil ity for probation, howev er, is not conclusive; the appellant bears the burden of establishing his suitability for probation. See Tenn. Code Ann. § 40-35-303(b). To meet this burden, the appellant must demonstrate that prob ation will "subserv

e the ends of justice and the best interest of both the public and the defendant." State v. Bingham , 910 S.W.2d 448, 456 (Tenn.Crim.App.), perm. to appeal denied , (Tenn.1995) (citation omitted).
While not controlling on the issue of prob ation, but relevant to the s entencing court's determ ination are the following: (1) the nature and circumst ances of the conduct involv ed, Tenn. Code Ann § 40-35-210(b)(4); (2) the defendant's potential or lack of potential for rehabilitation, Tenn. Code Ann. § 40-35-103(5); (3) whether a sentence of pr obation will unduly

depreciate the seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)( B); and (4) whethe r a senten ce other t han prob ation wou ld provide an effe ctive deterrent to others likel y to commit similar cr

imes, Tenn. Code Ann. § 40-35-103(1)(B).2 In enteri ng an Alford plea, a def endant “faced with strong ev idence of gui lt and no sub stan tial evid entia ry sup port f or [his ] claim of inn oce nce ” ma y refra in from adm itting h is culpability and a ccept a senten ce. See North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160 (1970). 6 See Bingham , 910 S.W.2d at 456.
As previously indi cated, the appellant maintains the burden of establishing that the sentence imposed by the trial court is improper. In this regard, w e find that the appellant has failed in carr ying this burden. The appel lant adamantly denies any criminal wrongdoin g. Rather, he asse rts that he is the victim of the ruth less revenge and lies created by the three girls. Additionally, the record reflects the appellant’s lack of cooperation in compiling the required sex offender’s report and the result therein indicating that the appellant poses a very high likelihood of reci divism. Finally, the appellant was both a trusted neighbor and friend of the victims’ and the ir families. By his own admission, the victims frequently visited the appellant at his residence and he would let them borrow food, would dr ive them to Wal-Mart, and would drive them to school.
Factors of credibility, remorse, and candor are legitimate considerations in determining suitabilit

y for total probation as they reflect upon a defendant’s potential for rehabilitation. See Tenn. Code Ann. §40-35-103(5) ( 1997); State v. Bunch , 646 S.W.2d 158 (Tenn.1993); State v. Dykes , 803 S.W.2d 250 (Te nn.Crim.App.1990); State v. Jenkins , 733 S.W.2d 528 (Tenn.Crim.App.1987); State v. Pierson , 678 S.W.2d 905 (Tenn.1984); State v. Leone , No. 02C01-9206-CR-00148 (Tenn.Crim.App. at Jackson, September 29, 19 93). Notwithstanding, there is concern that “it is unfair” to rely solely u pon the defendant’s lack of remorse or candor where an Alford plea has been entered since an Alford plea, by definition, does not acknowledge one’s guilt. 2 See, e.g. , Leone , No. 02C01-9206-CR-00148. The nature of the plea, however, does not alter the resulti ng effect of the plea or make the defendant less guilty . An Alford guilty plea is a g uilty plea in all mater ial respects. See North Carolina v. Alford , 400 U.S. at 37, 91 S.Ct. at 167 (no7

constitutional requisi

te that accused make express admission of guilt); United States v. Tunning , 69 F.3d 107, 111 (6th Cir. 1995). Indeed, this situation is no different from that of a defendant who is found guilty by a jury and at sentencing refuses to admit his criminal wr

ongdoing. Thus, a sentenci ng court is not prohibited from considering a defendant’s denia l or lack of remorse in maki ng the appropriate sentencing determination. See Leone , No. 02C01-9206-CR-00148. As evidenced by the medical evaluati on in the present case, albeit preceded by an Alford plea, “circumstances may jus tify finding that defendant’s atti tude and behavior are not conducive to rehabilitation.” Id. The record supports consideration of these principles in denying

total probation. See, e.g. , State v. McConnell , No. 03C01- 9604-CC-00148 (Tenn. Crim. App. at Knoxville, Feb. 24, 1998). Moreover, there is no dispute that the young v ictims in this case w

ere children over w

hom the appellant had assumed a paternal role. This proof supports a finding that the appellant abused a position of trust. See State v. Zeolia , 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Although the appell ant is eligible for prob ation, the circumstances of the offenses, including the appell ant's abuse of a position of priv ate trust, Tenn. Code Ann. § 40-35-114(15), are sufficient to support a denial of pro bation. State v. Boston , 938 S.W.2d 435, 43 8 (Tenn.Crim.App. 1996).

After review of the recor d before us, we conclude that the appellant has failed to establish that the sentence i mposed by the trial court was erroneous. Sentenci ng Commission Comments, Tenn. Code Ann. § 40-35-401(d)(1997); Ashby , 823 S.W.2d at 169. The record supports the trial court’s denial of a sentence of tota l probation or placement in a community corrections prog ram. Accordingly, the judgment of the trial court i s affirmed.8 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

____________________________________ JOSEPH M. TIPT ON, Judge

____________________________________ L. T. LAFFERTY, Senior Judge