1 State v. Mahler , 735 S.W.2d 226 (Tenn. 1987) (defendant can knowin gly a nd volunt aril y plea to senten ce within the sta tutory ra nge as Ran ge II o ffende r, even thoug h not tec hnically q ualified a bov e Ra nge I sta tus). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Bri efs May 21, 2002 STATE OF TENNESSEE v. DAVID SALTZ Direct Appeal from the Criminal Court for Sullivan County

No. S44,304 Phyllis H. Miller, Judge

No. E2001-02422-CCA-R3-CD September 3, 2002
The defendant pled guilty to three counts of incest and was sentenced as a Range

II multiple offender to three concurr ent termsof

eight ye ars. The defendant appeals the trial cour t’s imposition of various enhancement factors and d en ial of alternative sentencing. We affirm the trial court’s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which T HOM AS T

. W OODA LL and N ORMA M C G EE O GLE , JJ., joined. Stephen M. Wallace, District Public Defender (a t trial); Lesl

ie S. Hale , Assistan

t District Public Def ender (attrial); a

nd Steve Mc

Ewen, Mou

ntain City , Tennes see (on a ppeal), for the a

ppellant , Davi d Salt

z. Paul G. Summers, Attorney Gene ral and Reporter; Christine M. Lapp s, Ass istant Attorney Genera l; H. Greeley

Wells, Jr., District Attorney General ; Tere sa Murray -Smith, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION The Sulliv an County

Grand Jury indicted the def endant, David Saltz, on three counts of rape, Class B felonies, and three counts of incest, Class C felonies. Pursuant to a plea agree ment, the defe

ndant ple d guilty

to the inc est char

ges, a nd the ra pe char ges we re dism issed

. The defendant agreed to be se nt enced as a Range I

I multiple offender eve

n though he was actually a Range I

offender. 1 A sentenc ing hea ring wa s held, and the def endant w as sente

nced to three concurrent eight-y

ear terms in the Tennessee Departm e nt of Correction. His request for-2-

alternative sentencing was denied. This appe al timely followed. The def endant asserts that the trial court erred in deny

ing his request for alternative sentencing

.

Facts The defendant, David Saltz, pled guilty to inces t, admittin g that he had sexual

intercourse withhis fifteen- ye ar-old stepdaughter on three occ asions. Th e de fendant’s wife, the mother of the victim, was charged with facilitation of felony rape and failure to re port child sexual abu se for a period of three y

ears. Mrs. Saltz pled gui lty and was g ranted judicial diversion. The trial judge sentenced the defendan t as a R ange II

multiple offender to three concurrent eig ht-year terms. A probation heari ng w as held to determine the manner of service of the sentence. The evidence before the trial court inc luded a presentence report prepa red by the Te

nnessee Department

of Correction and a sex offender risk assessment repor t pr epared by Counseling and Consultation Services, Inc. (CCS). The presentence report lists one prior felony (grand larceny

) and seve

ral misde meanors , including possession of marijuana, unlawful possession of dru g p araphernalia, theft, and driving under the influence. Numerous probation violations for prior offenses a re also c ontained in the report. The rep o rt reveals that the defendant has been in drug treatment programs on previous occasions. The defendant is currently employed at a te

mporary e

mployment age

ncy. The risk asse ssment of t

his defe ndant fou nd that he

is a mo derat e risk to re-offend and a fair candida te for se x offende r treatm ent. The asse ssment con cluded that the defendant is an appropr iatecandida

te for a community

based ou

t-patien t treatme nt program. Howeve

r, CCS found that the def

endant’s level of risk may be difficult to manage through proba tion. According to CCS, the defendant’s sexual respo nse to minors is considered deviant. The defendant acknowledged se xual contact with five other minor girls.
CCS concluded

tha t the defendant: (1) used his position of authority to gain access to the m inor, (2) used intimidation and coercion to commit the offenses, and (3) demonstrate d no regard for th e pain he was i nflic ting o n h is daughter. The assessment stated that an offe nder’s “willingness or ability to honestly discuss their sexual offendi ng beh avior is th e single most importantfactor

associa ted with su ccessf

ul treatm ent.” The defendant initia lly o nly a dmitted sexual contact with two othe r mi nors. He only admitted conta ct with three additional minors after a polyg raph test. CCS found that the defendant’s “understanding of the ha rm he has caused was superficial.” The assessme

nt also ind

icated th at the defendant

admitted h aving se

xua l encount

ers with several prostitutes. He stated that he had sexual encounters with his brother’s wife, and he a nd his wife had two previous sexual encounters with his brother’s wife. The defendant testified that he became sexual ly active at a very y oung age. He testified that his two olde

r brothe rs had initiated or

al sex with him w hen he was a child. Additionally , he testified that older boys in the n eighborhoodforced him to have intercourse with them when he was thirteen

ye ars old. T

he defe ndant tes tified tha

t he knew

what he d

id with his st epdaughter-3-

was wrong, but he thought that she wanted to ha ve se x w ith him. He stated that he wanted cou nseling for his problems. He testified that he had recently failed a drug test, and he w a s curren tly on probation for possession of marijuana. The defendant stated that he ha d not success fully

stopped us ing drug s. Eugen e Worley, the defe ndant’s landlord, testified as a character witness for the defenda nt. He testif

ie d that he had kn own the defendant all of his life and that he did not think the d efe ndant was a danger to the community . Upon cross-examination, Worley indicated that he was not fully awa

re of the charges ag ainst the d efend ant, and he did not read the probation report. The court found five e nhance ment facto rs an d no mitigating factors. The court found that the defe ndant (1) has a hist

ory of crimin al convictions and c rim inal beha vior, (2) was a leader in the commission of an offense, (3) committed the offense to grat ify his desire , (4) hasa h istory of noncompliance with probation, and (5) violated a position of trust. Tenn. Code Ann. § § 40-35-114(1), (2), (7), (8), and (15). Analysis
The defendant argues that the trial co urt erred in sentencing him to incarcer ation and denying him any form of alter

native sentence. This Court’s revie w of the sentence imposed by the trial cou

rt is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d ) (1997). This presumption is conditioned upon an a ffirmative showing in the record that the trial j udge consider

ed the se ntencing principle s and all r

elevant facts a nd circu mstance s. State v

. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fa ils to compl y with the statutory directiv es, there is no presumption of co rrectness, and o

ur revie w is de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Te

nn. 1997) . The bur

den is upon

the appe ali ng p arty

to show tha

t the sente

nce is improper . Tenn. Co de Ann. § 4 0-35-401 (d), Sent encing Commission Co mments.
In cond ucting a de novo review of a sentence, this Court must consider (1) the evidenc e, if any , recei ved at the

trial and sentenc in g hearing; (2) the presentence report; (3) the principles of sentencing and the argume nts of counsel relative to s entenci n g alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing fa ctors; (6) any

state ments made by the defe ndant in hi s own beha

lf; and (7 ) the def

endant’ s potentia

l for reh abilit a tion or treatme nt. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; S tate v. Smit h , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). Enhancement Factors Although the defendant do es not expressly challen ge the r

esulting length o f his sentence, he asser

ts that the

trial c ourt mis applied two enhancement factors. Specifica lly, the defendant contendsthat the trial court erroneously applied enhancement factors (1), the defendant has a history of c

riminal convict ion s in addition to those necessary to e stablish the a ppropria te range, and (2), the defe ndant was a leader in the commission of an offense involvi n g two or more a

ctors. Te nn. Code A

nn. § 40-3 5-114 (1) , (2). He first contends that the application-4-

of enhancement factor (1), Tenne ssee Code Annotated section 4 0-35- 114, was inapprop riate because his “ crimin al record consists mainly of misdemeanors involving marijuana possession.” We disagree. I

n ad dition to t he misdemeanor convictions for marijuana possession, a review of the de f endant’s criminal record reveals that the de fendant has two convictions for driving under the influence of an intoxicant, one convict i on fo r t he ft , a nd on e c on vi ct io n f or gr an d l ar ce ny. The trial court’s application of this factor was appropr iate. Next, the defendant alleges that the trial cour t incorrectly a

pplied enhan cemen t factor (2), Tennessee Code Annotated section 40-35 -114 , to enhan ce the def enda nt’s s entence. We disagree. The trial court found [The defendant’s wife] was inv olved in it w ith [the defendant]. The two of you workedto gether. It would not surprise me if she wasn’t der iving some sort of sexual pleasure out of this, too, considering wh at y ou said in your statement at [CCS]. But anyway , she was assisting y ou in this . . . Moreover, the rec ord ref lects t hat the defe ndant’s wife, who is also the victim’s mother, pled g uilty to facilitation of r

ape and failure to repor t child abuse for t

hree y ears. A lt hough the recor d before us does not contain her plea agree ment, the presentence report, which is included in the record and ref erenced by

the trial court, notes t hat the vi ctim’s moth er “enc ourag ed the victim to have sex with the defendant.” Also in the record are ref erences to tape recor

ded conv ersations betweenthe mo ther an d the v icti m duri ng w hich the mother tells the daughter to be quiet about the offenses and uses the two-y ear old sister as a reason to cooperate

. We co nclude that the record supports the trial court’s application of enhanc ement factor (2 ). It clear from the mother ’s guilty plea to facilitation of rape that she was a part icipant in th e defendant’s offens e. Furt hermo re, whi le his wife en courage d th e victim to have inte rcourse with the defendant and urged her not to re port the abuse, the defendant was the person who actually e ngaged in sexual intercourse with the victim. Accordingly , the trial court could conclude that the defe ndant wa s a leade

r in the c ommission of

the offe nse. This i ssue is wit

hout merit

. Denial of Alternative Sentence Turning to the def

endant’ s argum

ent that th

e trial c ourt err

ed in deny

in g an alternative sentence, we re cognize that trial judges are encour aged to use alternatives to incarce ration under the Crim inal Sent encing Reform Act of 1989. Moreover, a n especially mitiga

ted or standard offender convicted of a Class C, D, or E felony is presumed to b e a favorable candidate for alternative sentencing options in the absence of evidence to the contrary. Te

nn. Code Ann. § 40-35-102(6). Becau se the i nstant defendant is a Rang e II

multiple of

fender , he is not e

ntitled to the statutory presumption in favor of a n alternate sentence. However, due to the length o f his sentence, the defendant is statutoril y eligible f or probation. A defendant is eligible for probation if the actual sentence imposed upon the defen dant is eight ye ars or less and the offense for which the defendan t is sentenced is not specifically excluded by statute. Tenn. Code Ann. § 40-35-303(a). Probation is to be au

tomatica lly c onsidered as a sen

tence a lternati ve for e

ligible defenda nts; however, the burden of proving suitability for probation rests with the defendant

. Id.-5-

§ 40-35-30 3(b). A d

efenda nt seekin g full pr

obation be ars the burden on appeal o f sh owing th e sentence imposed is improper and tha t full probation will be in the best interest of the defendant and the public. State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App.1997).
In determining whether to grant or de ny probation, a trial c ourt should c onsi der the circumstances of the offe ns e, the defendant’s criminal record, the de fendant’s social history

and present condition, the need for deterrence, and the best intere st of the defendant and the public. Statev. Grear , 568 S.W.2d 28 5, 286 (Te nn. 1978) ; St at e v . B oyd , 925 S.W.2d 237, 244 (Tenn. Crim. App.1995). Additionally, a cour t should consider the defendant’s po tenti al, or lack of potentia l, for reh abili tati on whe n dete rmini ng i f an al ternative sentence would be appropriate. Tenn. Code Ann. § 40-35-1 03(5). T he defe ndant’s l ack of c

redibilit y isalso an a

ppropria te consideration and re flect s on a defendant’s potential for rehabilitation. State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994 ). A court may also c onsider the mitigating and enhancing factor s set fort h in Tenne ssee Code

Annotate d se ctions 40- 35-113 and -114 as they are releva nt to the section 40- 35-103 c onsidera tions. T enn. Code

Ann. § 40- 35-210(b )(5); State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).
In the instant case, the trial court found that, due to the defend ants lo ng history of criminal conduct, confinement was necessary to prot ectsociety and to avoid depr eciating the seriousness of the o ffe nse. Tenn. Code Ann. § 40-35-103(1) (A)-(C). I n concluding that the def endant had not established his suitability for probation, the trial cour t reliedon th e defendant’s length

y c rimi nal history, including numer ous failed attempts at probation, the findi ngs contained in the sex offender r isk asse ssment, and the circumstances of the offense. The re cord suppo rts the trial court’s conclusions. The defendant did not carry his burden of proving that he should receive probation, and the trial court di d not err or abuse his discretion in deny ing the defendant’s request. This issue is without merit. CONCLUSION Accordingly , we affirm the judgment of the trial court.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE