# FILED
December 4, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1996 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9511- CR-00376 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON . SETH N ORM AN PAM C OSTA, ) JUDGE ) Appe llant. ) (Direct Appeal- Sentencing)

FOR THE APPELLANT : FOR THE APPELLEE : CHARLES R. RAY JOHN KNOX WALKUP Ray and Housch Attorney Generaland Reporter 211 T hird Aven ue No rth Nashvill e, TN 37219 REBECCA LYFORD Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attorney General LILA STATOM Assistant Distri ct Attorney 222 Se cond A venue N orth Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION Appellant Pam Costa appeal s as of ri ght from a June 23, 1995 order denying her Mot ion to Modif y Sentence. On Apri l 11, 1994, Appellant pl ed guilty to rape of a minor and recei ved a twelve year sentence. At the second evidenti ary heari ng on Appellant ’s motion, counsel for Appellant r

equested that he be al lowed to make an offer of proof . The presidi ng judge denied counsel’s req uest. The issu e presented by Appellant is wh ether the trial court erred in d enying A ppellant’s reques t to make an offer of p roof. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTUA L BACKGROUND On April 11, 1 994 Appellant p led guil ty to r ape of a minor and r

eceived an agreed upon twelve ye ar sentence . As a standa rd Range I Offender, Appellant’ s earliest parole el igibil ity date was after s ervice of 30% of her sentence. On July 20, 1994, Appellant f iled a Motion to Modif y Sentence pursuant to Rul e 35 of the Tennessee Rul es of CriminalProcedure. I n her Rule 35 motion, she alleged that her sentence should be modified because she would not be par oled unti l she had served 50% of her sentence due t o her status as a sex

offender and t he alleged “ policy” of the Parol e Board to deny parole o f sex offend ers until the y had se rved 50% to 60% of their sen tence. A hearing wa s held on Fe bruary 24, 199 5. At the conclus ion of the Febru ary hearing, t he presidi ng judge permit ted Appellant

to supplement t he record on the stati sticalprofil e of sex off enders in t he Department of Corr ection as comp ared with other crim inals. The hearing was re-o pened on Jun e 24, 19 95. At the June heari ng, Appellant introduced the testi mony of Gary Lukowski , the-3-

assistant

for Planni ng and Research for t he Tennessee Department of Correction. He testi fied that sex of fenders were granted parole wit h less frequency t han other cri minals accordi ng to 1993/1994 statisti cs. He furt her testif ied that t he average sentencefor a person convicted of rape in al l grand division s of Te nnes see w as twe lve yea rs with a n aver age in carce ration o f six and a half year

s before parol e was granted. Finally , Lukowski testifi ed that other sex of

fenders general ly were not granted parol e until they servedover 50% of their s entences. Appel lant then tried to introduce the parole r ecords of eleven curr

ent sex offender inmates i n the Tennessee Prison for Women. The presiding judge de nied cou nsel’s req uest to intro duce th ese rec ords. Appellant claim s that these files wou ld have helped prove that sex offen ders were requir

ed to serve 50% to 60% of their sentence before parol e was granted.

MOTION TO MODIFY SENTENCE In her Motion to Modify Sentence, Appellant argues that her sentence should be modifi ed because of an all eged “polic y” of t he Parole Board to deny sex offender

s parole unt il fifty to sixty percent of their sentence has been served. Because of

this pol icy, Appel lant argues that she wi ll be deni ed her thirty percent release e ligibility date and therefore will have to serve substanti ally more t ime than she expected to serve. A sentence may be modified under

Rule 35 of the TennesseeRules of Cri minal Procedure when the trial cou rt finds that the original se ntence must b e reduc ed “in the in terests of justice.” State v. Hodges , 815 S.W .2d 151 ,154 (T enn. 19 91); State v. Iri ck , 861 S.W.2d 3 75, 276(Tenn. Crim. App. 19 93); Rule 35( b), Ten n. R. Crim. P. (com miss ion co mm ents). H owev er, whe re a trial c ourt ac cepts a Rule-4-

11(e)(1)( C) Tennessee Rule of Cri minal Procedure gui lty pl ea agreement, the trialcourt shoul d not modify t he agreed upon sentence abs ent unusual circum stance s, such a s unfore seen p ost-sen tencing d evelopm ent. State v. McD onald , 893 S.W.2d 945, 947 (Tenn. Cr im. App. 1994) citing State v. Hargrove , 1993 WL 3007 59, at *2 (Ten n. 199 3). On appe al, the tria l court’s disposit ion of a moti on to modify wi ll not be disturbed unless the appel lant court finds an abu se of disc retion. Irick , 861 S.W.2d at 376.
Appellant’ s motion to modif y her sentence was

properly

denied. She has fail ed to demonstrate any unusual ci rcumstances which woul d entitl e her to a reduced sentence. Any inf ormation regar

ding the rel ease eligi bilit y dates of sex offen ders wo uld have been a vailable to A ppellant w hen sh e agree d to the se ntenc e she receive d. The fact sh e did n ot disc over th is evide nce u ntil after her plea does not ent itle her to reli ef either

through a reduct ion of senten ce or po st-convictio n relief. See , Rickey S ams v. S tate , 1996 WL 66388 4 (holding misun derstan ding as to parole e ligibility not sufficien t to render g uilty plea invo luntary.)

In view of ou r holding th at any m isunde rstanding of her pa role eligibility would not entitle Appell ant to a reduc tion in an agreed upon sentence, we find the tri al court di d not err i n refusing to allow Appel lant to pl ace the records of other female s ex offender s into evi dence. Even if this has been error it was harmless in v iew of the f act that Mr . Lukowski had testifi ed to the i ncreased incarcerat ive peri ods experienced by sex offenders. In addition, there was no real disp ute at the h earing that sex offender

s serve rel ativel y longer-5-

incarcerat ive peri ods than do other types of of

fenders. Thus, the exclus ion of this evidence ad ds little if anything to the resolution of this m atter.
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ WILLI AM M. B ARKER, JUDGE