FILED

December 4, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1996

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9511-CR-00376

)

Appellee, )

)

) DAVIDSON COUNTY

VS. )

) HON. SETH NORMAN

PAM COSTA, ) JUDGE

)

Appellant. ) (Direct Appeal-Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES R. RAY JOHN KNOX WALKUP

Ray and Housch Attorney General and Reporter

211 Third Avenue North

Nashville, TN 37219 REBECCA LYFORD

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

VICTOR S. JOHNSON

District Attorney General

LILA STATOM

Assistant District Attorney

222 Second Avenue North

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
-2-

OPINION

Appellant Pam Costa appeals as of right from a June 23, 1995 order

denying her Motion to Modify Sentence. On April 11, 1994, Appellant pled

guilty to rape of a minor and received a twelve year sentence. At the second

evidentiary hearing on Appellant’s motion, counsel for Appellant requested

that he be allowed to make an offer of proof. The presiding judge denied

counsel’s request. The issue presented by Appellant is whether the trial court

erred in denying Appellant’s request to make an offer of proof.

After a review of the record, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

On April 11, 1994 Appellant pled guilty to rape of a minor and received

an agreed upon twelve year sentence. As a standard Range I Offender,

Appellant’s earliest parole eligibility date was after service of 30% of her

sentence. On July 20, 1994, Appellant filed a Motion to Modify Sentence

pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. In her

Rule 35 motion, she alleged that her sentence should be modified because

she would not be paroled until she had served 50% of her sentence due to her

status as a sex offender and the alleged “policy” of the Parole Board to deny

parole of sex offenders until they had served 50% to 60% of their sentence. A

hearing was held on February 24, 1995. At the conclusion of the February

hearing, the presiding judge permitted Appellant to supplement the record on

the statistical profile of sex offenders in the Department of Correction as

compared with other criminals. The hearing was re-opened on June 24, 1995. 

At the June hearing, Appellant introduced the testimony of Gary Lukowski, the
-3-

assistant for Planning and Research for the Tennessee Department of

Correction. He testified that sex offenders were granted parole with less

frequency than other criminals according to 1993/1994 statistics. He further

testified that the average sentence for a person convicted of rape in all grand

divisions of Tennessee was twelve years with an average incarceration of six

and a half years before parole was granted. Finally, Lukowski testified that

other sex offenders generally were not granted parole until they served over

50% of their sentences. Appellant then tried to introduce the parole records of

eleven current sex offender inmates in the Tennessee Prison for Women. The

presiding judge denied counsel’s request to introduce these records. 

Appellant claims that these files would have helped prove that sex offenders

were required to serve 50% to 60% of their sentence before parole was

granted.

MOTION TO MODIFY SENTENCE

In her Motion to Modify Sentence, Appellant argues that her sentence

should be modified because of an alleged “policy” of the Parole Board to deny

sex offenders parole until fifty to sixty percent of their sentence has been

served. Because of this policy, Appellant argues that she will be denied her

thirty percent release eligibility date and therefore will have to serve

substantially more time than she expected to serve. A sentence may be

modified under Rule 35 of the Tennessee Rules of Criminal Procedure when

the trial court finds that the original sentence must be reduced “in the interests

of justice.” State v. Hodges, 815 S.W .2d 151,154 (Tenn. 1991); State v. Irick,

861 S.W.2d 375, 276 (Tenn. Crim. App. 1993); Rule 35(b), Tenn. R. Crim. P.

(commission comments). However, where a trial court accepts a Rule
-4-

11(e)(1)(C) Tennessee Rule of Criminal Procedure guilty plea agreement, the

trial court should not modify the agreed upon sentence absent unusual

circumstances, such as unforeseen post-sentencing developm ent. State v.

McDonald, 893 S.W.2d 945, 947 (Tenn. Crim. App. 1994) citing State v.

Hargrove, 1993 WL 300759, at *2 (Tenn. 1993). On appeal, the trial court’s

disposition of a motion to modify will not be disturbed unless the appellant

court finds an abuse of discretion. Irick, 861 S.W.2d at 376.

Appellant’s motion to modify her sentence was properly denied. She

has failed to demonstrate any unusual circumstances which would entitle her

to a reduced sentence. Any information regarding the release eligibility dates

of sex offenders would have been available to Appellant when she agreed to

the sentence she received. The fact she did not discover this evidence until

after her plea does not entitle her to relief either through a reduction of

sentence or post-conviction relief. See, Rickey Sams v. State, 1996 WL

663884 (holding misunderstanding as to parole eligibility not sufficient to

render guilty plea involuntary.)

In view of our holding that any misunderstanding of her parole eligibility

would not entitle Appellant to a reduction in an agreed upon sentence, we find

the trial court did not err in refusing to allow Appellant to place the records of

other female sex offenders into evidence. Even if this has been error it was

harmless in view of the fact that Mr. Lukowski had testified to the increased

incarcerative periods experienced by sex offenders. In addition, there was no

real dispute at the hearing that sex offenders serve relatively longer
-5-

incarcerative periods than do other types of offenders. Thus, the exclusion of

this evidence adds little if anything to the resolution of this matter.

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

WILLIAM M. BARKER, JUDGE