# FILED
January 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9701-CR-00032

Appellee, * CARTER COU NTY VS. * Hon. Arden L. Hill , Judge ANTHONY CHARLES GODSE Y, * (Sexual Ba ttery)

Appellant. *

For Appellant : For Appellee : Robert Y. Oakes John Knox Walkup Office of the Public Defender Attorney General and Repor ter First Judicial Dis

trict Main Courthouse Georgia Blythe Felner Elizabethton, TN 37643 Counsel for the State 450 James Robertson Parkwa y Gerald L. Gulley, Jr. Nashville, TN 37243-0493 Attorney P.O. Box 1708 Kenneth C. Baldwin Knoxville, TN 37901- 1708 Assistant District A ttorney General (on appe al only) 900 East Elk Avenue Elizabethton, TN 37643

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE1 A Ran ge I sente nce for a Class E felony is one to two years ; a Rang e III senten ce is four to six year s. Tenn. Code Ann. § 40-35-112. Our supreme court approved such hybr id sentences as long as th ey are the p roduct o f a "plea ag reem ent enter ed volun tarily and kno wingly." Hicks v. State , 945 S.W .2d 706 ( Tenn . 1997). 2 OPINION The defendant, Anthony Charles Godsey, was indicted by a Carter County Grand Jury for aggravated sexual battery. Pursuant to a pl ea agreement, the defendant entered a guilty plea to sexual battery , a Class E felony. Tenn. Cod e Ann. § 39-13-505. The trial cour t approved a Range I, fiv e-year sentence but denied the defendant's application for p robation. 1

In this appeal of right, the defendant conte nds that the trial court sh ou ldha

ve gr an te d p ro ba

ti on , s pl it co nf in em en t, or

Co mm un it

y Cor re ct io ns . We find no error and affirm the judgment of the trial court.

On the eveni ng of August 3, 1995, the d efendant deliv ered some firewood to the residence of hi s friend, Lawrence "Buck" H ite. Hite's ex-w ife, Nellie, and her two minor daughter s were present. After dr inking several beer

s with Hite, the defendant "laid down on the couch like on numerous occasions" t o spend the night. During the ear

ly morning hours of the nex t day, the defendant went to the bed of the eight-year-old victim, "pulled dow

n her panties, kissed her ar ound her vagina, and made digital penetration...." When the victim began to cry, the defendant left her bedroom. Lat er, the victim told her grandmother who, in turn, told Ms. Hite. A physic

al examination of the victim at Northside Hospital indicated sexual abuse.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code3 Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the trial court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history, and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35- 102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).4 The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum requirements of the Commun ity Corrections Act of 1985, however, does not mean that he is entitled t o be sentenced under the Act as a matt er of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The follow ing offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

Subsection (2) wou ld initially exclude t he defenda nt from receivin g a Community Corrections sentence because sexual batter y is a "crime[] agai nst the person" codified in "title 39, c hapter 13, parts 1-5." See Dwight Leat herwood v.5 State , No. 113 (Tenn. Crim. App., at Knoxville, Oct. 4, 1990). He is possibly eligible, however,under the special needs p rovision of the Act, w

hich allow

s some individuals who co mmit crimes against the per son to be placed on Community Corrections if they have special needs arising from mental health problems f or which treatment is available. Tenn. Code Ann. § 40-36-106(c).

The 1989 Act does provide that th e record of the sentencing hear ing "shall include specific findi ngs of fact upon which applic ation of the sentencing principle s was based ." Tenn. Code Ann . § 40-35- 209(c). A nd, while we acknowledge that de novo appellate review doe s not relieve the tri al judge from compliance with the prov isions of § 40-35-209(c), w e are nonetheless able to conclud e that th e record is adequate to suppo rt the den ial of an alternat ive sentence.
The defendant, thirty-one year s of age, has an eleventh gr ade education and has worked as a roofer. An alcoholic who has drunk heavily since the age of sixteen, the defendant has stated that he is "willing to do whatever is necessary to try to treat" his problem with alcohol. The defendant provides little in the way of support for his only child, a thirteen- year-old daughter. H e is divorced and lives with his

parents.
The presentence report reveals that the defendant has had a number of brushes with law enfor cement since the time he was nineteen years old. The record establishes that the defendant had eleven prior convictions for public intoxication, and prior

convictions for driv

ing under the influence, destr uction of private property, driving on an expired license, driving on a revoked license, reckless burning, resisting arrest, a nd disord erly condu ct. Afte r being pla ced on an intensive6 probation program in 1990, the defendant was convicted of dri ving under the influence within a year thereafter. The defenda nt became intoxicated while on work release a nd took m arijuana into the c ounty jail ; that res ulted in a n additio nal thirt yday incarcerative sentence and another year of probation. In 1995, the defendant was convicted of reck

less burning, resisting arrest, and disorde rly conduct; he committed sexual battery while on probation for thos e offenses.
While stating a belief that the defendant was not a "full blown" pedophile, the trial court determined that the defendant's continuous abuse of alcohol presented a significant risk to others. It denied probation upon the basis tha t conditional release from incarceration had not worked in the past. T he defendant's prior criminal history was a significant factor in the denial. The trial court also pointed to deterrence, both indi vidual and general. It

concluded that the victi m had been "injured for the rest of her l ife," based upon testimony by he r mother that she suffered both physical and psy chological consequences from the assault.

In our view, the defendant's prior criminal hist

ory militated agains

t the grant of probation. Although an important sentencing cons ideration is to impose the least severe punishment nece ssary, the grant of proba tion might tend to depreciate the seriousness of this offense. Tenn. Co de Ann. § 40-35-103(1)(B). His failure to rehabilitate after a number of previous jail terms and periods o f probation indicates a lack of amenability for rehabi litation. Measures les s restrictive than c

onfinement have been unsuccessful. Tenn. Code Ann. § 40-35-103(1)(C). The number of the prior offenses as much their gravity tend to support the denial of prob ation or a sentence of split confinement. SeeTenn. Code Ann. § 40-35-306.2 Deterrence i s a factor i n every cri minal case and, t herefore, the statuto ry deni al of probation because of deterr

ence, alone, must be supported by evidence i ndicati ng some special need or consideration relati

ve to that

jurisdi ction whi ch would not be addressed by t he normal deterre nce inheren t in any crim inal penalty. See State v. Jenkins , 733 S.W .2d 528, 535 (Tenn. Crim . App. 1987); State v. Vance , 626 S.W.2d 287, 290 (Tenn. Cr im. App. 1981). This standard app ears in sect ion 40- 35-103(1)(B) of Tenn. Code Ann., whi ch provides f or confinement if it i s "parti cularly suited t o provide an effec tive deterre nce to oth ers likely to co mm it similar offe nses." 7 Deterrence, of course, can r arely be the sole reason for the denial of an alternative sentence. State v. Cummin gs , 868 S.W.2d 661, 668 (Tenn. Crim. App. 1992); State v. Hartley , 818 S.W.2d 370, 37 5 (Tenn. Crim. App. 1991). 2 Yet sentencing requires an individualized, c ase-by-case approach. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). That method of analysis neces sarily embodies the exercise of discretion at the trial court lev el. See State v. Fletcher , 805 S.W.2d 785 (Tenn. C rim. App. 1991). T hus, the re is a soun d basis f or the pre sumptive correctn ess stand ard of ap pellate review:

It is not the policy or

purpose of this Court to plac e trial judges in a judicial s

trai[gh]t-jacket in this or any other area, and we are always reluctant to interfere with their traditional discretionar

y powers. State v. Ashby , 823 S.W.2d 166, 171 (Tenn. 1991). That principle pr evails here on the matt er of pro bation, split con fineme nt, and Co mmunity C orrectio ns. In our view, the trial court acted w

ithin its discretion i n denying an alternativ e sentence.
Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David H. Welles, Judge

____________________________ Jerry L. Smith, Judge