### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs D

ecember 5, 2

000 STATE OF TENNESSEE v. TYRONE PIERCE Direct Appeal from the Criminal Court for Shelby County No. 96-02967 Bernie Weinman, Judge

No. W2000-00571-CCA-R3-CD - Filed March 27, 2001

The defendant pled g

uilty to crimin

al attempt to commit

aggravated

sexual battery

, a Class C fe lon y. Pursuant to a plea agre

ement he agre

ed to a three-year sentence as a Rang e I Standard Offend

er, with the manner of service to be determined after a hearing by the trial cour t. The trial court sentenced the defendant to serve 270days in the workhouse on weekends (“day for day”) from 7:00 p.m. on Frid ays to 7:00 p.m. on Sundays and five years proba tion with a 10:00 p.m. curfe w on weekday

s. The defendant contends he should have received full probation or some other

less restrictive form of alternative sentencing. We affirm the trial court’s denial of full probation but modify the time of service in the wo

rkhouse on weeke

nds to 104 day

s. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified
J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which J OE G. R ILEY and R OBERT W. W EDEMEYER , JJ., joined. Phyllis Aluko and W. Mark Ward, Assistant Public Defenders, for the appellant, Tyr one Pierce. Paul G. Summers, Attorne y General and Reporter; L

ucian D. Geise, A

ssistant Attorney

General; William L. Gibbons, District Attorney General, and John W. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On March 14, 1996, the defendant, Tyrone Pierce, was indicted in Shelby County for aggravated

sexual battery of a

child lessthan thirteen years of age, allege dly committed between May 1, 1993 and September 30, 1993. The defendant was in the Navy and rec eived no notice of the indictment until his arrest on November 23, 1998.-2-

On September 30, 1999, the defendant waived his right to a trial by jury , and entered into a negotiated

plea agreeme

nt, by which h

e pled guilty

to the lesser offe

nse of crimin

al a ttempt to commit aggravated sexual battery, a Class C felony , with an agreed

upon sentence of three

years as a Range I Standard Offender. The m anner of service of the sentence was to be determined by the trial court, after a

hearing. A Pre-sentence Investigation Report was prepared, and a sentencing hearing was conducted on February 11, 2000. At the conclusion of the sentencing hearing, the trial judge denied the defendant full probation and ordered him to serve 270 days in the workhouse on weekends (“day for

day”) fro m 7:00 p.m. on Fridays to 7:00 p.m. on Sundays and ordered five ye ars probation with a 10:00 p.m. curfew on weekdays. The d efendan t was also ordere d to maintain employment and to continue psychiatric car e. In this appeal the defendant contends that the trial court erred in refusi

ng to fully s

uspend his sentence or, in the alterna

tive, place him on s

ome other less re

strictive form of

alt er native sent encing. After review, we affirm the trial court’s denial of full probation; however, we modify the defendant’s sentence. Facts The defendant stipulated to the following summary of facts in support of his conviction: MR. CAMPBELL: Your Honor, the facts that give rise to

this indictment occurred during the summer of 1992. The defendant was babysit

ting for the vict

im in this case and her sister. Durin

g that time, the vic

tims – during that t

ime after this time, the victims told their father that the defendant had taught them how to, quote, unquote, pee like a boy, as well as some details regarding how to masturbate. The father then turned in this information to the police. The de fendantwas subsequently interviewed by the Na vy after he went into the Nav y. Tha t te sti mon y, Your Honor recalls, the special investigator for the Navy was here. He, in his statement, denied any contact but did in f act give statements that seemedto corroborate

what these little girls were saying had happened. He was then charged with this offense.
* * * MS. ALUKO: Your Honor, we would stipulate with one exception. I believe that the initial complaint came from a teacher –
MR. CAMPBELL : Okay. Rig ht. MS. ALUKO: – and not the parent of the child. We would stipulate that those are the facts that the state would have presented had this matter gone to trial, and we do ask you to ac

cept the negotia

ted settlement.-3-

The pre-sentence report

contained no information from the victim or her family. The report reflects they were unable to be located. Therefore, we have no information concerning the impact of this crime on the vic

tim. At the time

of sentencing the victim was around seven years old and her sister was around twelve years old. Analysis The defendant contends the trial court erred in denying him full probation or some other less restrictive form of alternative sentencing. The State contends the re cord supports the trial court’s sentencing determination, and that the sentence should be affirmed. When an accused cha

llenges the leng

th and manner

of service of a sentence, it is the duty of this Court to conduct a de novo review on the record with a presumption that “the determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upo n the affi rmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashy , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not ap ply to the legal conclusions reached by the trial court in s

entencing the a

ccused or to dete

rminations made by

the trial court which ar e predicated

upon uncontroverted facts. State v. Butl er , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App.), perm . app . denied(Tenn. 1994). However, this Court must give great weight to the trial court’ s determination of controverted fa

cts as the trial court’s determination of these facts is predicated upon the witnesses’ demeanor a n d appearance wh en testifying. The defendant, as th

e party cha

llenging the se

ntence imposed by

the trial court,

has th e burden of establishing that his sentence was erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments; Ashy , 823 S.W.2d at 169; Butler , 900 S.W.2d at 311. In determining whether the defendant ha

s shown th at the s entence imposed b y the trial c

ourt was errone

ous, this Courtconsiders: (a) any evidence received a t the trial and/or sentencing hearing; (b) the presentence report; (c) the principles of sentenc ing; (d) the arguments of counsel; (e) the nature and characteristics of t he o ffen se; (f) a ny mitigati ng or enhancing factors; (g) any statements made by the accused in his own

behalf; and (h) t

he accused’s po

tential, or lack of potential, for rehabilitation or treatment. Tenn. Code Ann. §§ 4 0-35-103 and -201 ; State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App.), perm. app. denied , (Tenn. 1987).
In determining whether to gran t or deny probation, a trial court should consider the circumstances of the offense, the defendant’s criminal record, the defendant ’s social history and present condition, the need for deterrence, and the best interest of both the defendant and

the public. Statev. Grear , 568 S.W.2d 285, 286 (T enn. 1978); State v. Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). The defe

ndant’s lack of c

redibility is

also an appropriate consideration and reflects on-4-

a defendant’s potential for rehabilitation. State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). Probation may be denied based solely on the c ircumstances surrounding the offense. State v. Hartley , 818 S.W.2d 370, 374 (Tenn

. Crim. App. 1991). However, the circumstances of the offense as committed must

be especially violent, horrifying, shocking, reprehensible, offensive, or otherwi se of a excessive or e xaggerated de

gree; and the n

ature of the off

ense must outweig

h all factors favoring probation. Hartley , 818 S.W.2d at 374-75.
In determining if in

carceration is

appropriate, a trial court considers (1) the need to protect society by restraining a defendant having a long history of criminal conduct; (2) the n eed to avoid depreciating the s e riousness of the of fense; (3) wheth

er confinement i

s particularly

appropriate to effectively

deter others likely to commit similar offenses; and (4) whether less restrictive measure s have oft en or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35- 103(1); see also Ashy , 823 S.W.2d at 169; State v. Grigsby , 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps , 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
At the sentencing hearing only the defen d ant and his father testified. The defendant was twenty years

old at the time of the offense and twenty-sev en at the ti me of the sen tencing hear ing. He has no prior juvenile or adult criminal record of arrests or convict ions . He does not use drugs or alcohol. He resides with his parents and the family is willing to support any conditions of probation. He faithfully attends church and received a per fect attendance certificate for attendance in Sunday Schoo

l. He is employed where he works approximately forty hours per week from 2:30 p.m. to 12:00 a.m. He admits that he was at fault in this offense. He states he is staying away from situations where he would be al one with children. He has investigated avenues of obtaining psychological

help but is limited by his lack of financial resources. Nevertheless, he was evaluated by Dr. Hoffman, a sp

ecialist in the “sp

ecial problems un

it” at Dr. William Mur

phy’s Clinic a

t th e University

of Tennessee. A treatment program has been created for the de fendant. In addition, the defendant’s father pledges his support for his son and is willing to assist his son in complying with any conditions of probation set by the court. After hearing all

the proof, the trial court sentenced the defendant and denied his request for full probation because of (a) the horrifying nature of the offense, (b) the need for punishment, and (c) the need for deterrence. However, the trial court granted the defendant an alternative sentence of serving 270 days in the workhouse on weekends (“day for day”)from 7:00 p.m. on Fridays to 7:00 p.m. on Sundays and five years probation with a 10:00 p.m. cur few on weekdays. After our de novo review of the record before us, we find that thereis insufficient evidence to deny proba

tion solely

on the need for deterrence and need for punishment, as some aspect of these is present in every case. See , e.g. , State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). In addition, we do notconcur with the trial court’s finding that this offense was necessarily “horrifying” as

set out in State v. Hartley , 818 S.W.2d 370, 374 (Tenn. Crim. Ap p. 1991). We recog

nize the seriousne

ss-5-

of this case and all child sexual cases, but, do not, however, find that this case rises to such an exaggerated degree as to be “horrify ing” under the Hartley

test. We do find, in

our de novo revie

w, that some incar

ceration is nece

ssary to avoid depreciating the seriousness of this offense. The defendant was c harged with ag

gravated sexua

l battery of

a child under thirteen years of age and pled guilty to attempt to commit aggravated child sexual battery. We believe that the underlying facts giving rise to this crime are such that mandate some p eriod of incarceration. Therefore, the need to avoid

depreciating t

he seriousness

of this offense supports the trial court’s determination that some incarceration is necessary. The trial court was c

orrect in its

denial of full probation. However, we conclude that under the facts of this case requiring the defendant to serve 270 days on weekend was erroneous. Such a sentence would require this defendant to be incarcerated every weekend f or a period of two years and seven months. Therefor

e, we modify

the term of period

ic confinement to

104 days on th

e weekends. We further agre

e with the trial co

urt’s imposi

tion of probat ion for a five year period and all other conditions set out by

the trial court. Conclusion
Acco rdi ngly, we affirm the trial court’s judgment in every respect except we modify the term of periodic confinement to 104 days on the weekends.

______________________________ JOHN EVERETT W ILLI

AMS , JUDGE