# FILED
September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SE SSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9708-CR-00370

) ) Sullivan County v. ) ) Honorable R. Jerry Beck, Judge ) BOBBY W. CANTER, ) (Denial of probation) ) Appellant. )
For the Appellant : For the Appellee : Stephen M. Wallace John Knox Walkup District Public Defender Attorney General of Tennessee and and Gale K. Flanary Clinton J. Morgan Assistant Public Defender Assistant Attorney Gener al of Tennessee P.O. Box 839 425 Fifth Avenue North Blountville, TN 37617 Nashville, TN 37243-0493 H. Greeley Wells, Jr. District Attorney General and Teresa Murray Smith Greg Newman Assistant District A

ttorneys General P.O. Box 526 Blountville, TN 37617

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge1 The record refl ects that although t he defendant di d not qualify thr ough prior con victi ons for Ran ge II, he ag reed to s uch sta tus as p art of the p lea agree men t. 2 O P I N I O N
The defendant, Bobby W. Canter, appeals as of right from the denial of probation by the Sulliv

an County Criminal Cou rt. Pursuant to a plea agr eement, the defendant pled guilty to the attempt to commit aggravated sexual batte ry, a Class C felony, and was se ntenced to eigh t years in the Depar tment of Corre ction as a Range II, multiple offender. 1 We affirm the trial court.

The defendant was originally charged with the aggravated sexual battery of his stepdaughter. The presentenc e report reflects that the v ictim stated that the defendant required her to masturbate him and that it had happened before. It also reflects that the defendant denied that it happened, even after his gui lty plea.

The gist of the defendant’s concern r elates to the fact that as part of the plea agreement, he agreed to at tend a program with Cou nseling and Consultation Services, Inc., in or

der to evaluate his suit ability for treatment in the community. The state had agreed that if he w ere suitable for such treatment, he should be placed on intensive probation. However, the defendant did not attend any sessions.

At the sentencing hearing , the defendant and his live-i n girlfriend testified that he was going to the first evaluation meeting on April 23, 1997, when the car broke down. The defendant said that he call ed and obtained another appointment for Ma y 6, 1997. However, w

hen he arrived, he was told that he would have to pay the one hundred fifty dollars for the first missed session bef ore he had another session. He testified that he did not have t he money.3 The defendant testified that he worked a s a roofer and that business had been slow. He said that the money he made went for rent, electricity and the l ike and that he did not have the money to pay for the sessions. The pr esentence report reflects that the defendant telephoned the presentence officer on August 14, 1997, and told her that he was not going to counseling because he was not guilty and he could not afford it. The defendant essentially c onfirmed this conversation in his testimony.
In considering the sentence , the trial court noted that the defendant had a lengthy misdemeanor recor d, including convic

tions for driving under

the influence, driving on a suspended l icense, theft, and obtaining money by fraud. It stated that the presentence report reflects that the defen dant was less than candid about his employment status at the time of his interview. Als

o, the trial court doubted the defendant’s sincerity rel ative to his claim of inabi lity to attend the eval uation sessions that were required. The trial court concluded th at the defendant had failed to prove that he was a worthy c

andidate for probation.
The defendant contends that the record suppor ts his request for probation. We disagree. As a Range II , multiple offender, the defendant is not presumed to be an appropriate candi date for alternative sentenci ng. See T.C.A. § 40- 35-102(6). The burden was an d is on him to prove such entitlement. See State v. Dykes , 803 S.W.2d 250, 25 9 (Tenn. Crim. App. 1990); T.C.A. § 40-35-401(d).

The trial court found that the defend ant was not candid, a circumstance that bears on his amenability to rehabilitation and may justify a denial of probation. See State v. Gennoe , 851 S.W.2d 833, 83 7 (Tenn. Crim. App. 1992). Also, the defendan t’s unexcused failure to comply with the sexual offender ev aluation process militates against probation. These ci rcumstances, coupled with his criminal record and the4

circumstances surrounding the present offense, more than justifies the denial of probation. The judgment of convi ction is affirmed.

_____________________________ Joseph M. Tipton, Judge CONCUR:

___________________________ Gary R. Wade, Presiding Judge

___________________________ David H. Welles, Judge