# FILED
October 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE SEPTEMBER SESSION, 1997

STATE OF TENN ESSEE, ) ) No. 03C01-9611-CR-00400 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. R. Jerry Beck, Judge ROGER LEE FLEENOR, ) ) (Attempt to commit aggravated Appellant ) sex ual b atte ry)
For the Appellant : For the Appellee : Larry S. Weddington Charles W. Burson 200 Seventh Street Attorney General and Repor ter Bristol, TN 37620 Peter M. Coughlan Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 H. Greeley Wells, Jr. District Attorney General Teresa Murray Smith Asst. District Attor

ney General Blountville TN 37617

OPINION FILED:
AFFIRMED
David G. Hay

es Judge2 OPINION
The appellant, Roger Lee Fleeno r, appeals the sentence imposed by the Sullivan County Cr

iminal Court upon his plea o f guilty to the offense of attempt to commit aggravated sex ual battery, a class C

felony. Pursuant to a negoti ated plea, the appellant received a s entence of eight years as a range II offender. The manner of service of the sentence w as submitted to the trial cour t for determination. Following a sentenc ing hearin g, the tria l court de nied any f orm of al ternative sentence and ordered that the sentenc e be served in the Department of Correction. The appellant now appeals this decision.

After a review of the rec ord, we affirm the decision of the trial court.

Background
The appellant’s convictio n stems from the sexual contact of his seven year old granddaughter. On a dat e occurring between M ay 31, 1994, and August 31, 1994, the appellant’s granddaughter spent the night alone with the ap pellant at his house. Early the follow ing morning, she went into her grandfather’s bedr oom to say good morning. The appellant pul led his granddaughter ont o the bed and began to fondle her under her clothing . The victim eventuall y told her mother, who reported the incident to law enforcement officials. On March 21, 1995, a Sullivan County Grand Jury returned a pr esentment against the appellant c harging him with o ne count of aggravated sex ual battery, a class B felony. See Tenn. Code Ann. § 39- 13-504(a)(4) (1994 Supp.).On April 15, 1995, the appell ant, pursuant to a plea agreement, pled guilty

to the lesser offense of attempt to commit aggravated sexual battery, a class C f elony.3 A sentencing hearing w as held on June 26, 1996. The proof at the he aring revealed that the appellant, age 54, had no prior crimi nal history, a seve nth grade education, and a commendable work history as an automobile mechanic. The appellant stated that he was in good physical and mental health and had never abused either alcohol or dr ugs. The appellant is the father of two sons and three daughters, all presently adults, born of his thirty year marriage to hi s first wife, Juanita, who passed away in 1992. At the time of the sentenci ng hearing, the appellant was married to his second wife, Patsy.Various witnesses c onfirmed the fact that the appellant is well respected within his community and actively involved in his church.
Despite his many commendable tr aits and character references , the appellant admitted to the unlawful sexual contact with his seven year old granddaughter. In an attempt to justify his conduct, he explained tha t the victim began “rubbing his penis and kissing on him, so he just returned her love.” He added that this conduct occurred on one other occasion . The appellant also confessed to other similar incidents of sexual contact involving two of his daughters and a niece, during the gi rls’ adolescence. In a v ictim impact statement attached to the presentence report, the appel lant’s granddaughter s tated that she is “afraid of Papaw that he might hurt me for telling mom.” The vic

tim added that she “is mad because he said I led him on,” and wanted the appellant to “go to jail.” At the sentencing hearing, the mother of the victim, the appell ant’s daughter, testified that she had forgiven her father and that she was not opposed to pr obation.
A court ordered “Psyc

ho Sexual Evaluation” of the appellant was completed on June 1 4, 1996, by a private non-prof it agency to determin e “the lea st restric tive treatment setting which can effectively reduce the risk of further sexual acting out.” Results from one portion of the evaluation indicated that the appellant was “most aroused by males eight years old followed by male adults then males four years old1 "Paraph ilia” is defined a s a prefe rence fo r or addic tion to unus ual sexu al practice s. W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONAR Y 1638, VOL
. II (1981). 4 and females twelve year s old.” However, the appellant’s “most intens e arousal response” was to “females twelve years ol d followed by females six teen years old, then adult males and females.” On the Adler Sexual Interest In ventory, the appellant revealed that, at eight or nine years old, he had been anally penetra ted by his older brother. The appell ant admitted to exposing hi mself, over a period of fifteen years, to female adults and children, to sexually touching the present victim on two separate occasions , and to sexually touc hing two of his daughter s and a niece on numerous occasions.
During a clinical interview, the appel lant explained, when q uestioned about his history of deviant sexual behavior, that he “does not believe he has a problem.” He blames “the Devil for exploiting his weakness.” “The Devil has done this because [he] is trying

to live his life for God.” However, antitheti c to this explanation, the appellant reported that he molested his granddau ghter because “he had lost his wife and had no companionship.” Furthermore, the appellant “ demonstrated no empathy or understanding of how his offense has hurt his vic tim.” Based on the results of the psychological testing, the evaluation team, comprised of co unselors and therapists, concluded that the appellant was in need of spec ialized sexual offen der treat ment, th at he is a “ve ry high risk to continue sexually

acting out,” that the appellant “should not hav e any contact with minor chi ldren,” and that the appellant “is considered t o be a moderate risk to reoffend given his number of victims and paraphilia

s [sic], his defensivenes s, unwillingness to accept responsibility for hi s sexual offending, and inabil ity to honestly dis close sexual offensive behavior.” 1 (Emphasis added).5 Analysis
In his only issue, the appellant contends that the trial court erred by impos ing a sentence of total incarceration. W hen the manner of service of a sentence is challenged on appeal, this c ourt must conduct a de novo review with consideration of the evidence received at the sentencing hearing, the presentence report, the principles of sentencing and arguments as to sentencing alternatives, the na ture and characteristics of the criminal conduct involv ed, any statutory miti gating or enhancem ent facto rs, any stateme nt that the defendant made on his own behalf, and the potential or lack of potenti al for rehabilitation or tr eatment. Tenn. Code Ann. § 40-35-102, -103, -210; see State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim

. App. 1987). Although a de novo review is conducted by this court, the trial court’s determi nation is presume d correct on appea l, condit ioned up on an af firmati ve showing in the recor

d that the trial court properly considered rel evant sentencing principles. Tenn. Code Ann. § 40-35-401(d) (1990); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the present case, the trial court properly considered such principles. The presumption of correctness applies. Moreover, the app ellant bears the burden of showing that the sentence imposed by the trial court is improper. See Tenn. Code Ann. § 40-35-210(b)(3) (1990).

A. Presumptio n Favoring A lternative Sentenc

e The appellant first challenges the trial court’s deci sion that he is not entitled to the sta tutory pre sumptio n that he is a favora ble cand idate fo r alterna tive sentencing. To be eligible for the statutory presumption, three requiremen ts must be met. The appellant must be convi cted of a class C, D, or E fel ony. Tenn. Code Ann. § 40-35-102(6) (1994 Supp.) . He must be sentenced as a miti gated or standard offender. Id . And, the defendant must not fall within the parameters of Tenn. Code Ann. § 40-35-102(5), i.e., the def endant cannot have a criminal history evincing either a “

clear disregard for the laws and morals of society ” or “failure of6

past efforts at rehabilitation.” Id . The appellant’s agreement per mitted him to plead guilty to the lesser offense of attempt to comm it aggravated sexual battery, a class C felony. In exchange for his conviction of a less er offense, he agreed to classification as a rang e II offender, even though he had no pr ior criminal convictions. The appellant claims that, contrary to his plea agreement, he is , in fact, a standard offender.
We are not persuaded by the appellant’s arg ument that he should be permitted to receive the be nefit of the bargain he has chosen w hile rejecting that part which displeases

him. Recently, our sup reme court acknowledged the longstanding principl e that “a defendant can waive the range classification as part of a negotiated guilty plea, to sentences in cases arising under the new Act.” State v. Hicks , 945 S.W.2d 706, 708 (Tenn. 1997). The court held that such a sentence is valid "when imposed as a result of a plea bargain agreement entered voluntarily and knowingly." Id . The court added that, "where the parties negotiate in good faith and there are no allegations of fraud or misfeasance, the parties ar e precluded from attacking on appeal the agr eed range imposed by the tr ial court." Id . at 708. Thus, the appellant's knowing and voluntary guil

ty plea, absent any ev

idence of fraud or bad faith on behalf of th e State, waived any righ t of the appe llant to later cha llenge the legality of the sentenc e imposed by the trial cou rt. In other words, on ce the appellant agreed to be class ified as a range II offender, he became a r ange II offender for all purposes, includin g alternative sentenci ng. Hence, as a range II offen der, the appellan t is not pre sumed to be a favor able can didate f or altern ative sentencing. See, e.g. , State v. Grigsby , No. 02C01-9507-CR-00 184 (Tenn. Cr im. App. at Jackson, Jan. 15, 1997); State v. Wells , No. 03C01-9512-CC-00385 ( Tenn. Crim. App. at Knoxvi lle, Nov. 27, 1996); State v. Armstrong , No. 01C01-9503-CC00097 (Tenn. Crim. App. at Nashv ille, Nov. 16, 1995). This contention is without merit.7 B. Denial of Alternative Sentenc e Although the trial cour t strongly accredi

ted the appellant’s lack of a cr iminal record and the appellant’s favorable employment and so cial history, the court, in denying any form of alternative sentencing, found that the results of the psychological report, i.e., the appellant’s risk of reoffending, his long history of this type of conduct, his unwillingness to accept responsibility for his conduct, and his inability to honestly

disclose his sexual

offensive behavior, over whelmingly indi cate that “[c]onfinement is necessary to protect society by

restraining a defendant w ho has a long history of criminal conduct.” See Tenn. Code Ann. § 40-35-103(1)(A ) (1990).

With the presu mption t hat the t rial court ’s determ ination is correct , we conclude that the appellant has failed to carry his burden of establishing that he is entitled to alternative sentencing. The trial court’s finding is more than adequat ely supported by the record The appellant admitted to a long hi story of deviant sex ual behavior. This alone is sufficient to deny alternativ e sentencing. See State v. Matthews , No. 03C01-9505-CR-00153 ( Tenn. Crim. App. at Knoxvi lle, May 1, 1996) (affirming trial court’s denial of alternative sentence based up on defendant’s numerous incidents of unprosecuted un lawful sexual contact) . Additionally, the tr ial court, properly reco

gnizing that the “p rotection of society” i s a fundamental concept in the sentencing process , expressed its apprehens ion over releasing the appellant into the community given the appellant’s verified propensity to reoffen d. Moreover, the proof discloses that the appel lant was not truly remorseful for his actions, had a strong sexual attraction to children, and was not being totally truthful with the court or counselors. Consideration of the appellant’s poor prospect s for rehabilitation as a factor militating agains

t an alternative sentence is also appropriate. See Matthews , No. 03C01-9505-CR-00153.8 After a de novo

review of the record

coupled with the presumpti on that the decision of the trial court is correct, we conclude that the appellant has failed t o show his entitlement to a s entence other than total incarc eration. Accordingly, the judgment of the trial court i s affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ WILLIA M M. BARKER, Judge