# FILED
September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9708-CC-00365 Appellee, ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS, JR. CHARLES HARRILL, ) JUDGE ) Appellant. ) (Denial of Alte rnative Sentenc ing)

FOR THE APPE LLANT: FOR THE APPELLEE:
JULIE A. MARTIN JOHN KNOX WALKUP P.O. Box 426 Attorney General & Repor ter Knoxville, TN 37901-0426 (On Appeal) GEORGIA BLY THE FELNER Asst. Attorney General GERALD RUSSELL John Sevier Bldg. 117 E. Harper Ave. 425 Fifth Ave., North Maryville, TN 37801 Nashville, TN 37243-0493 (At Trial) MIKE FLYNN District Attorney General 363 Court St. Maryville, TN 37804

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 The defendant previ ously adopt ed the victim, who is the defendant’ s wife’s n atural dau ghter by a prio r ma rriag e. W e not e, ho weve r, that portio ns of the tra nsc ript re fer to the vic tim a s the defe nda nt’s stepdaughter. 2 

### O P I N I O N

The defendant was indicted for rape, a Class B felony. He pled guilty and aftera he aring, was sentenced t o eight years as a Range I standard offender in t h e Departmentof Correction. The defendant now appeals, arguing that the trial court should have granted him alternative sentencing. We affirm the defendant’s sentence.

The defendant, a forty-five-year-old male, raped his thirteen-year-old daughter 1 one morning after his wife had lef

t for work. The victi m was in bed when the defendant told her to take off her underpants. When she refused to obey , he forced her knees straig ht and pu lled off h erunderpants. He removed his clothing and sexually penetrated her for thirty minutes. He then told her to take a s hower and prepare for school. The defendant drove her to school, where she repor ted the rape.

The defend ant pled guilty, agreeing to a negotiated sentence of eight years. The cause proceeded to a sentencing hearing, where the de fendan t requested community

release in lieu of confinement. According to the defendant’s testimony at the hearing, the defendant did not remember the exac t events during the

rape, although he did recall penetrating the victim. Thedefendant wished to maintain a family relationship with his wife and the victim and stated that he shouldered full responsibility for th e rape. The defendant also admitted having a lengthy prior rec

ord, beginningat age eighteen or nineteen, although he claimed not to remember all o f his past offenses. The defendant described his present mental health as “fair” because he allow ed the rape to occur, and he noted that because of the rape, he was attending counseling. The presentence report3

acknowledges

a history of drug and al cohol use, but the defendant maint a ined he had not used illegal drugs

in eighteen years and ha d not drunk alcohol heavily since around 1981. He admitted to presently enjoyi ng a cold beer on a hot day , but he maintained that “abstinence would be no pr oblem” if the court so ordered.

At the conclusion of the hearing, the trial court accepted the State’s
r ecommend ation of eight years, whi ch was the minimum sentence for the offense, but noted that the eviden ce could have supported three enhancin g factors, including th e victim’s young age, the abuse of a position of trust, and the defendant’s histor y of criminal conduct. In determining whether the defendant should be released into the community du ring his eight year sente nce, the trial court noted that there was no restitution to b e made in this case and that confinement was n ecessary to protect soc iety from the defendant and to avoid depreciating the offense. The trial court also recognized that it should consider the defendant’s potential for rehabilitation. Noti ng that the offense was the for cible rape of a young chi ld, the trial court stat ed that the defendant was not a n appropriatecandidate for any kind of relea se and o rd ered the defendant to serve his sentence in the Department of Correcti on. The defendant now appeals, arguing that th e trial court impro perly considered his eligibility for alt ernative senten cing.

Since the defendant pled guil ty to a C lass B felony, he did not enj oy the presumption of alternative sentencing under T.C.A. § 40-35-102(6). W hile both parties agree that the defendantis statutorilyeligible for probation unde r T.C.A. § 40-35-303(a) because the sent ence imp osed was ei ght years, they disa gree as to whether the defendant is statutorily el igible for community cor rections under T.C.A. § 40-36- 106.

Section 40-36-106(a) provides that persons convicted of cr imes against the4

perso n as prov

ided in title 39, chapt

er 13, pa rts 1-5

and pers

ons conv

icted of violen t felony offenses are not eligible for community corre ctions. § 40-36-106(a)(2)-(3). Because the defendant was convicted of rape, a violent felony offense, in vio lation o

f § 39-13-503, he is not eligible for c ommunity corrections under § 40-36-106(a). The defendant contends, however, that he is eligible for community corrections under § 40-36- 106(c), which provides:

Felony offenders not otherwise eli gi ble under subsection (a), and who would be usually co nsidered unfit for probat i on due to histories of chronic alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional i nsti tution, may be considered eligible for punishment in the community under the provisions of this chapter. We disagree. The record is devoid of any evidence that the defendan t su ffers from mental health problems, apart from the defendant’s passing assessment that raping his daughter has caused his mental health to be “fair.” The defendant’s prior criminal record shows some illicit drug us e and alcohol abuse during the 1970s. However, the defendant explicitly denied any illegal dr

ug or alcohol use in the

past eighteen years. He maintained that he quit dri nking alco hol “cold turkey” around 1981 and now only drinks a cold beer in hot weather . The defend ant also boasted that he has abstai ned from alcohol for as long as six years and that further abstinence would be “no problem” if the court so ordered. Given the defendant’s admissions concerning his alcohol and drug use (or lack thereof) and the lack of evidence that the defendant suffers from mental health problems, the d efendant does not have “special n eeds” that would quali fy him for com munit y corrections under § 40-36-106(c).

Even assuming that t he defe ndant was statutorily eligible for community corrections, however, we ag ree with the trial c ourt’s decision tha

t the defendant is not entitled to any sort of alternative sentencing or release in the community. The record
con ta ins ample evidence of the defendant’s long criminal history, which is probativ e of5

the defendant’s lack of potential for rehab il it ation. We also agree with the trial court’s determination that confinement is necessary to avoid depreciating the seriou sness of the offense, which involve

d a father violating his

da ughter ’s trust and causing her physical and emotional damage. Given the circumstances of this case, we affirm the trial court’s decision.

_______________________________ JOHN H. PEAY, Judge
CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ DAVID G. HAYES, Jud ge