IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

October 23, 2012 Session

STATE OF TENNESSEE v. GREGORY BRYAN AUSTIN

Direct Appeal from the Criminal Court for Hamilton County

No. 281164 Don W. Poole, Judge

No. E2012-00641-CCA-R3-CD - June 5, 2013

Defendant, Gregory Bryan Austin, pled guilty to two counts of aggravated statutory rape with

an agreed sentence of two years for each count to be served concurrently, with the trial court

to determine the manner of service of the effective sentence. The trial court ordered that

Defendant serve six months of his effective two-year sentence in confinement with the

balance served on supervised probation. On appeal, Defendant argues that the trial court

erred in denying him full probation. After a thorough review, we affirm the judgment of the

trial court.

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

THOMAST.WOODALL,J., delivered the opinion of the court, in which JOSEPHM.TIPTON, P.J.,

and D. KELLY THOMAS, JR., J., joined.

Stevie Phillips, Chattanooga, Tennessee, (on appeal), and Lee Davis, Chattanooga,

Tennessee, (at trial), for the appellant, Gregory Bryan Austin.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; William H. Cox, III, District Attorney General; and Neal Pinkston, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Background

Guilty Plea Submission Hearing

According to the State’s recitation of the facts at the guilty plea submission hearing:
And as a brief factual basis, would show in April of 2010 a Hamilton County

investigation began involving [Defendant] and it was determined on two

occasions in April of 2010, here in the limits of Hamilton County, that

[Defendant] engaged in consensual intercourse on two separate occasions with

females who were over the ages of 13 but under the ages of 18, and he, by

statute, was 10 years older, which made it an aggravated statutory rape. Their

investigation revealed a number of phone calls, text messages and other

investigative tools that led to charges.

Sentencing Hearing

Detective Ed Merritt of the Hamilton County Sheriff’s Office testified concerning his

investigation of the present offense. He said:

I was notified on April 26 by my supervisor, Captain Bill Johnson, that he

th

wanted me present in a meeting with the mother of an alleged victim. She

apparently had been to the district attorney’s office and had said that she had

evidence, or believed she had evidence, that her daughter had been having

sexual intercourse with a member of the law enforcement community, and I

was asked to be part of that meeting and she had been referred to the sheriff’s

office by the DA’s office.

Detective Merritt testified that at some point they determined that there were actually

two victims. Detective Merritt testified that the mother of the first victim gave them a phone

and it “showed a text message from the victim to the suspect and had a phone number

associated with it.” They ran the number through a database, and it came back registered to

Defendant. When asked how Defendant was associated with law enforcement, Detective

Merritt said: “It’s my understanding that at some point [Defendant] had some sort of reserve

credentials with the Hamilton County Sheriff’s Office.” However, he testified that

Defendant was never a sworn peace officer.

Detective Merritt testified that the sexual encounters occurred between Defendant and

the victims at the Waverly Motel in East Ridge. He said that there was a “controlled phone

call” between one of the victims and Defendant, at Detective Merritt’s direction, during

which the victim told Defendant that she had been taken to the doctor because she was

pregnant. Detective Merritt testified that the encounters between Defendant and the victims

was “more of consensual situation” and involved the exchange of money for particular

services by the victims.

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Detective Johnny Lanham of the Fort Oglethorpe Police Department in Georgia

testified that in October of 2010, he began an investigation of Defendant. He said:

The report [came] in as a rape, but upon further investigation, speaking to the

victim and the witnesses, it turned out to be a pandering, which is a

prostitution, where [Defendant] had made arrangements with the 15-year-old

girl, to pay her to sleep with another girl.

Detective Lanham testified that the events occurred at the Super 8 Motel in Fort

Oglethorpe. Detective Lanham testified that Defendant also engaged in consensual

intercourse with a 17-year-old girl during an encounter, but that was not an offense in

Georgia. However, there was a 13-year-old girl present in the room who witnessed the

encounter, which led to a charge of child molestation. Detective Lanham testified that his

investigation revealed that Defendant paid the individuals for particular services. He said

that the offenses occurred between October 11 and 14, 2010. Detective Lanham testified that

Defendant gave some statements in his case, which detailed what happened and corroborated

parts of the investigation. He said that Defendant was still awaiting trial in Georgia.

On cross-examination, Detective Lanham testified that he had not reviewed the

indictment returned in Defendant’s case in Georgia. He was unaware that Defendant was not

indicted on the child molestation charge and that the only charge pending against Defendant

was for pandering. Detective Lanham agreed that Defendant had spent 46 days in custody

in Catoosa County, Georgia.

II. Analysis

Defendant contends that the trial court erred in ordering him to serve six months of

his two-year sentence in confinement. More specifically, he argues that the trial court

improperly relied on his pending charges in Georgia to deny full probation.

Our supreme court recently adopted a new standard of review for sentencing in light

of the 2005 changes in Tennessee sentencing law. State v. Bise, 380 S.W.3d 682

(Tenn.2012). In Bise, the Court concluded:

In summary, the 2005 amendments to the 1989 Act were intended to bring our

sentencing scheme in line with the decisions of the United States Supreme

Court in this area. Accordingly, when the 2005 amendments vested the trial

court with broad discretionary authority in the imposition of sentences, de

novo appellate review and the “presumption of correctness” ceased to be

relevant. Instead, sentences imposed by the trial court within the appropriate

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statutory range are to be reviewed under an abuse of discretion standard with

a “presumption of reasonableness.”

Id. Accordingly, we now review a defendant’s challenge to the sentence imposed by the trial

court under an abuse of discretion standard with a “presumption of reasonableness.” Id.

Tennessee’s Sentencing Act provides:

(c) The court shall impose a sentence within the range of punishment,

determined by whether the defendant is a mitigated, standard, persistent,

career, or repeat violent offender. In imposing a specific sentence within the

range of punishment, the court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the sentence that

should be imposed, because the general assembly set the minimum length of

sentence for each felony class to reflect the relative seriousness of each

criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate by

the presence or absence of mitigating and enhancement factors set out in §§

40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c)(1)-(2) (emphasis added).

In conducting a review of a sentence, this Court must consider (a) the evidence

adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles

of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics

of the criminal conduct involved; (e) evidence and information offered by the parties on the

enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-

113 and 40-35-114; (f) any statistical information provided by the Administrative Office of

the Courts as to Tennessee sentencing practices for similar offenses; and (g) any statement

the defendant wishes to make in the defendant’s own behalf about sentencing. T.C.A. § 40-

35-210(b); see also State v. Carter, 254 S.W.3d 335, 343; State v. Imfeld, 70 S.W.3d 698,

704 (Tenn. 2002).

Recently, our supreme court held that the same abuse of discretion standard should

be applied to the manner of service of a sentence, which includes the grant or denial of

probation. State v. Christine Caudle, 388 3d 273, 279 (Tenn. 2012). When determining if

confinement is appropriate, the trial court should consider whether (1) confinement is

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necessary to protect society by restraining a defendant who has a long history of criminal

conduct, (2) confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to people likely to

commit similar offenses, or (3) measures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-

103(1)(A)-(C) (2010 Repl.). The trial court may also consider a defendant’s potential or lack

of potential for rehabilitation and the mitigating and enhancement factors set forth in

Tennessee Code Annotated sections 40-35-113 and -114. Tenn. Code Ann. §§ 40-35-103(5)

(2010 Repl.), -210(b)(5) (2010 Repl.); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim.

App. 1996). The sentence imposed should be the least severe measure necessary to achieve

the purpose for which the sentence is imposed. T.C.A. § 40-35-103(4). The burden of

demonstrating the suitability for full probation rests with the defendant. Tenn. Code Ann.

§ 40-35-303(b) (2010 Repl.).

Defendant was an eligible candidate for probation. See T.C.A. § 40-35-102(6)(A).

At the conclusion of the first part of the sentencing hearing, the trial court said:

[A]t the very least I will say this at this point in time, that based upon the facts

and circumstances of the case, and the plea, that the very least [Defendant]

should have, in regard to an alternative sentence, is Community Corrections.

So I’m going to do this: At this point in time, I’m going to delay further

sentencing until a latter part of March. And I don’t want to get into a you-putyours-off, we-put-ours-off, I want to know what’s going to happen.

So at this point in time, the sentence, at this point in time, will be two years in

the Department of Correction[] as a Range I standard offender. He needs to

register with the sexual offender registry, he needs to start sexual offender

treatment, and then to determine any incarceration or Community Corrections

or whatever else will happen, I’m going to set this in the latter part of March.

So the judgment will not enter until that time, but I think it appropriate that he

starts these other things at this point in time. I’d like to start it then, or come

back for complete sentencing in the latter part of March.

At the subsequent portion of the sentencing hearing, it was reported that the Georgia

case was still pending. Furthermore, the trial court was told that electronic monitoring could

not be ordered for a community corrections sentence but it could be imposed as a condition

of probation. It was noted that Defendant had registered as a sex offender and that he had

begun treatment. The trial court then sentenced Defendant as follows:

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All right. [Defendant] was before the Court earlier on the sentencing hearing

and had entered guilty pleas in two counts of aggravated statutory rape. The

agreed-upon sentence, appropriately so, in regard to [Defendant], was two

years in the Department of Correction[] as a Range I standard offender, two D

felonies, sentences were running concurrently.

We did have a complete sentencing hearing. At that point in time, or at that

time, it appeared that [Defendant] does not have any record, prior record.

There was proof presented of an involvement in a Georgia case by a Georgia

detective and there was proof in regard to that that occurred after this. And I

made the statement at that time that based upon the fact that the sentence was

less than ten years, certainly he qualifies or is eligible for probation.

He is also eligible for consideration as alternative sentencing because this is

a class D felony. So I thought at that point that it was appropriate, at least, to

determine whether as part of the alternative sentencing the house arrest could

be considered. At that point, we found out that there is a case pending, and

certainly, with this case, they will not take it, and I’m not going to order that.

It would not be appropriate to order house arrest in regard to a case that they

don’t handle.

I did make the finding at that time, I think findings were made that I was

somewhat concerned about rehabilitation since [Defendant] did incur another

case after pleading guilty to these cases up here. I think, appropriately so, not

only would that be considered, I think it is an enhancing factor as criminal

behavior, based upon the proof we heard, so I think that is some weight to be

given to that, under number one as an enhancing factor.

But based upon all the foregoing, then, and the things we said before at the

sentencing hearing, [Defendant] is sentenced in count one on the count of

aggravated statutory rape to two years in [the] Department of Correction[] as

a Range I, standard offender. All of that will be suspended on supervised

probation, except he will serve six months in regard to that. The balance will

be on supervised probation. He will be registered as a sex offender, which he

in fact has done, and will receive sex offender treatment. And based upon the

seriousness of it, I think supervised with electronic monitoring would be

appropriate.

In regard to count two, he’s found guilty and sentenced in regard to aggravated

statutory rape, two years Department of Correction[], Range I, standard

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offender, suspended on supervised probation with electronic monitoring, all

but six months of that, which he will serve in the Hamilton County

Workhouse. The balance, as indicated, will be on supervised [probation]. He

will register as a sex offender and he must have sex offender treatment.

Defense counsel then clarified to the trial court that Defendant’s Georgia offenses did

not occur after the guilty pleas in this case, but did occur after Defendant’s arrest for the

aggravated statutory rape charges in the case sub judice. The trial court then said:

And I think that is criminal behavior and I give some weight to that. Certainly

he’s pled to the minimum, which is appropriate, based upon his background,

the minimum sentence. That’s what the law would dictate, I think, and what

the law would require, but I think a service of that, based upon the seriousness

involved in this offense and the fact that he was arrested for that, that’s

criminal behavior.

The record supports the trial court’s decision. Defendant in this case pled guilty to

engaging in sexual intercourse on two separate occasions with females who were over the

ages of 13 but under the ages of 18, and he paid them for “particular services.” His actions

were not discovered until the mother of one of the victim’s brought a phone to police and

showed them a text message from the victim to Defendant. The victim’s mother further

thought that Defendant was a member of law enforcement due to his having “some sort of

reserve credentials with the Hamilton County Sheriff’s Office.” There was proof submitted

that after Defendant’s arrest for offenses in the present case, he committed the offense of

pandering in the state of Georgia, in which he made arrangements to pay a 15-year-old girl

to have sex with another girl. Defendant was awaiting trial for that offense at the time

Defendant was sentenced in the present case. Although Defendant was not indicted for a

second offense of child molestation, Detective Lanham testified that Defendant engaged in

consensual intercourse with a 17-year-old girl, with a 13-year-old girl present in the room

who witnessed the encounter.

The fact that Defendant committed new offenses in Georgia after his arrest for the

present offenses and presumably while he was out on bond as argued by the State at the

sentencing hearing, reflects negatively upon his potential for rehabilitation and militates

against the imposition of full probation. We find that the trial court properly relied upon the

facts and circumstances of the present case as well as the charges in Georgia as testified to

by Detective Lanham. See State v. Frankie Sue Dees, No. W2004-02109-CCA-R3-CD, 2005

WL 1768722, at *3 (Tenn. Crim. App. July 26 2005) perm. app. denied (Tenn. Dec. 19,

2005) (in denying full probation, “the record indicates that Defendant had two pending

felony charges of prescription fraud in Mississippi”); State v. Carico, 968 S.W.2d 280, 288

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(Tenn. 1998)(“The phrase ‘criminal behavior’ has not been defined by this Court for

purposes of the enhancement factor, but, whatever the precise definition may be, sexual acts

with a 10 year old child clearly constitute criminal behavior). The trial court in this case did

not abuse its discretion in denying full probation and ordering Defendant to serve six months

of his two-year sentence in confinement.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

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THOMAS T. WOODALL, JUDGE

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