### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 2000 Session

STATE OF TENNESSEE v. DAK J. MANYAL

Appeal from the Criminal Court for Shelby County No. 99-00180 W. Fred Axley, Judge

No. W1999-00909-CCA-R3-CD - Decided August 28, 2000

Pursuant to a negotiat ed plea agreement, the Defendant was convicted of attempted agg ravated sexual battery and was sentenced to serve four y ears in the Shelby County Correction Center. He appealsfrom the tri al court's denial of his request to serve the balance of his sentence on probation. We affirm the judg

ment of the trial c

ourt.

Tenn. R. App. P. 3 Appe al; Judgment of the

Criminal Court A

ffirmed.

D AVID H. W ELLES , J., delivered the opinion of the court, in which A LAN E. G LENN , J. and C ORNEL IA A. Clark, Sp. J., joined.

A.C. Wharton, Public Defender, Memphis, Tennessee; Sherrye J. Brown, Assi stant Public Defender, Memphis, Tennesse

e, for the appell

ant, Dak Many

al.

Paul G. Summers, Attorney General and Reporter; Mark E.Davidson, Assistant Attorney Ge

neral; William Gibbons, DistrictAttorney General; Julie Mosley, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant was in

dicted for agg

ravated sexual ba

ttery arisi ng from a

n assau lt he perpetrated

against a ten-year-old female victim. The fac ts, as gleaned from th

e Defendant' s guilty plea and sentencing hearings, are that the victim was “skipping” down a side walk towa rd her apartment when she passed the Defendant, who was standing approximately two doors down from the victim's apartme

nt. As the victim

passed by

the Defendant, he reached out and grabbed her private parts, touching

the area of her

vagina, with his h

and over the victi

m's shorts. The vi

ctim immediately

reported this to her sister, who called the police. Shortly thereafter, office r s a rrested the Defendant, who was identified by the victim as being the person who ha d assaulted her.

Pursuant to a negotiated plea agreement, the Defendant pleaded g uilty to the lesser included offense of attempted aggravated sexual battery, a Class C felony, in exchange for an agreed sentenc e-2-

of four years to be served in the Shelby County Correction Center. At the time of the Defendant's guilty plea, he had served approximately one year in pretrial detention. The Defendant requested that the balance of his four-year sentence be suspended and that he be allowed to serve the sentence on probation. After condu cting a heari ng, the trial court de nied his request for probation. It is from the order of the tria

l court deny

ing probation tha

t the Defendant a

ppeals.

When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence witha presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) . This pr esumption i s ? conditioned upon the affirmative showingin the record that the trial court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received

at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments a s to sentencing a

lternatives; (

d) th e nature and characteristics of the criminal conduct involved; (e) any statutory mitiga ting or enhancement factors ; (f ) any statement made by the defe

ndant regardi

ng sentencing ; and (g) the pote ntial or lack of potential for rehabilitation or treatment. State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

A defendant who “is an especially mitigated or standard offender convicted of a Class C, D

or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to

the contrary.” Tenn. Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted

felons committing the most severe offenses, possessing criminal histories evincing

a clear disregard for the laws and morals of society , and e vincing f ailure of past efforts at rehabilitation shall be given first priority regarding sentenc ing involving incarceration.” Id. § 40-35- 102(5). Thus, a defe ndant sent enced to eight years or less who is not an offender f or whom incarceration

is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption. H owever, the act

does not provide th

at all offenders who meet the crite ria

are entitled to such re

lief; rather, it requi res that sentencing issues be determined by the facts and circumstances presented in each case. See State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (cit ing State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986)).

Add iti ona lly, the principles of sentencing reflect that the sentence should be no greater than that deserved for the

offense committed and should be the least severe measure necessary to achie ve the purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103 (2), (4). The court should also consider the potential for rehabilitation or treatment of the defendant in determining the sentence alternative. Id. § 40-35-103(5).

The pres ent ence repo rt r efl ect s th at t he D efen dan t is app rox ima tel y fif ty years old and is married, although separ

ated from his wife . He has one son wh o lives with the Def

endant's wife i

n Salt Lake City

, Uta h. The Defenda nt immigrated to the United States from Africa in 1994. He-3-

reported that he attended school through the f ourth g rade while living in his homeland of Sudan. The Defendant has been employed as a “fish cutter” for seafood companies in Memphis. He speaks littleEnglish and was a

ble to communicate through an interpreter at his guilty plea proc eeding and at the hearing on his request for a suspended sentence.

The Defendant's prior record consists of two convictions for driving while under the influence of an intoxi

cant, one co nviction for assault, one conviction for resisting arrest and one conviction for vandalism. All convictions occurre d durin g 1998. He had apparently served approximately

twenty days for

the DUI convictions, thirty day s for the assault and the re

sisting arrest convictions,

and sixty days for

the vandalism conviction. It appears that his probation for the DUI convictions was r

evoked at the time

he was convicted

for assault and r

esisting arres

t.

In denying the Defendant's request for a suspended sentence, the trial judge stated that hehad considered

the Defendan t's history of alcohol related offenses and other violations of the law along wi th the nature a nd circumstances of the offense. The court also noted that even though the Defendant

stated that he w as sorry that th is crime occurre

d, he also stated th

at he did not reca

ll assaulting the child, even tho ugh he stated tha

t he was sober on th

e date it happened. Although the Defendant may have had some problems in communicating through his interpr eter, it appears that he was less than totally candid in his responses to the questions asked.

The Defendant argues that the trial court impr op erly and inappropriately conside red “the Sudanese community's feelings about the Defendant, but on the other hand, made no allowances for the Defendant's personal history and cultural background in determining the appropriateness of alternative sentencing for him.” We do not believe that the Defendant's argument has merit. Trial judges are traditionally vested with broad discretionary authority in sentencing matters. Based on the Defendant's previous criminal record, the failure of less restrictive measures in the pa st, and the Defendant's continued disregard for the laws of this state, we a re unable to conclude that the trial judge erred or abuse

d his discretion by

denying th

e Defendant' s request

that his sentence be served on probation.

The judgment of the trial court is accordingly affirme d.

___________________________________ DAVID H. WELLES, JUDGE