### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J anuary

22, 2003 STATE OF TENNESSEE v. JERRY LE E MILLER, SR. Appeal from the Criminal Court for Sullivan County No. S44,897 Phyllis H. Miller, Judge

No. E2002-01921-CCA-R3-CD March 20, 2003 Jerry Lee Miller, Sr. appeals from theSullivan County Criminal Court’s imposition of incarcerative sentencing for his effective five-y ear sentence for two counts of statutory rape. Miller ple aded guilty to the offenses as a Range I I offender, and the manner of service of the sentence was reserved for the lower court’s determination. Miller posits on appeal that he should have been afforded a sente nce involving either sp lit confinement or straight probat

ion. We disa

gree, however , and aff

irm. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and N ORMA M C G EE O GLE , JJ., joined.
Leslie Hale, Blountville, Tennessee(at trial); and Julie A. Rice, Knoxville, Tennessee (on appeal), for the Appellant, Jerry L ee Miller.
Paul G. Summ

ers, Attorney Gene

ral and Reporter; Helena Walton Yarbroug h, Assistant Attorney Genera l; H. Greeley

Welles, Jr., District Attorney General; and Teresa M. Smith, Assistant District Attorney Gene

ral, for the Appellee, State of Tennessee.
OPINION
Over a course of several y

ears, the defendant

sexually abused the

minor victim, who is his gir lfriend’ s daugh

ter. The defenda nt lived in t

he same home withthe victim during most or all of this time. This activity was discovered a t one point, and the victim was placed first in foster care and late

r with her biologic al fathe

r. The victim

was eventually a

llowed to return to her

mother’s home, and although the

defenda nt was not s upposed to

be prese nt in the ho me, he ar

rived sho rtly after the victim’s return and resumed molesting her

.1 The charging instrumen t does no t appear in the rec ord, and the charge is referred to in the record as o ne o f

“rape.”
2 The defe ndant had been convi cted of r eckl ess enda ngermen t in general sessi ons court , and the case was pending on appeal to the cr iminal c ourt at th e time it wa s dism issed. It is no t clear w hether this charge was dropped as part of th e plea agree men t. It is not me ntione d in the p ape rwor k relative to the p lea agr eem ent; ho weve r, the state’s desire to ent er a noll e pros equi as to it was anno unce d at the hearin g on the plea a greem ent. -2- The defendant’s activity

came to li ght a

second time, and he was charged with one count of rape. 1 Through agreement with the state , the defendant was later charg ed by information withtwo counts of statutory rape , to which he pleaded guilty , and the rapecharg e was dismissed. An additiona

l charg e of rec

kless endang erment w as alsodismissed, this charge apparently stemming from the defendant’s attempt to run off the road a vehic le in which the victim was a passenger. 2 The defendant agreed to a two-y

ear sentence on one count and a three-year sentence on the othe

r count. He likewise agreed to consecutive ser vice, for a five-y

ear effective sentence . Moreover, heagreed to be cl assified as a Rang e II offende r, even t hough hi s sole prio

r misdeme anor con

viction wo

uld other wise q ualify him for R ange I sent encin g.

Thereafter, the defe

ndant und

erwent t he statuto

rily required sexual of

fense r isk assessme nt. See Tenn. Code Ann. § 39-13-705 (Supp. 2002). The examiners opined that the defendant presented a low risk fo r reoffending if he rec eived proper treatment, although further offenses were likely to oc cur absent treatment. I n this regard, the examiners characte rized the defendant as a “situational child molester,” that is, he is not pr edatory but takes advantage of oppor tunities which pr

esent the mselves. He was c ategor ized as a “ fair to g ood cand idate ” fo r outpatient treatment, and

several restrictive conditions were recommended should he be g ranted a sentence involving outpatient treatment. The examiners further opined that the defendant hadnot been entirely truthful with them about his history of sexual contact

with other minor

children, which he denied. They likewise noted that the defendant was not able to see the harm that he ha d caused the victim, inasmuch as he blamed the victim for

the offe nses and c

haract erized him self as a

victim of her seduction.

At the sentencing hearing, neither the state nor the def endant offered any

testimonial proof. The only evidenc e received was that contained in the prese ntence report and the s exual offense risk assessment report. The presentence report c ontained

a lengt hy v ictim impact stateme

nt, as wel l as wr itte n stat ement s from the tw o relat ives w ith w hom t he vic tim w as resi ding.

After consi dering the evidence, the trial court f ound that the defendant should be incarcerated

for the e

ntirety of his sen

tence a nd order ed that hi s sent ences be served in the Department of Correction. The defendant then a ppealed.
The only issue bef ore us is th

e propri ety

of the tri al court ’s order of incarcerative sente ncing. In making a fe lony sentenci ng determination, the trial court, at the conclusion of the sentencing hearing, determines the range of sentence and the n determines the specific sentence and the propriety of se

ntencing alternatives by

considering (1) the evidence, if any, received at the trial-3-

andthe sentencing hearing, (2) the presentenc e report, (3) the p rinciple s of sente

ncing a nd arguments as to sentencing alternatives, (4) the nature and characteristics of the

criminal conduct

involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statemen ts the defe

ndant wish

es t o make in the defendant's behalf about sentencing, and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5) (1997) and (Supp . 2002); State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

A defenda

nt who “is a

n especi ally

mitigated or standard off

ender c onvicted

of a Class C, D, or E f

elony is presumed to be a f

avorabl e candid atefor alternative sentencing options in the absenceof evidence to the contrary .” Ten n. Co de Ann. § 40-35-102(6) (1997). However, a defendant who commit s “the mos tse ve re of fe ns es , p os se ss [e s] a c ri mi na l h is to r[ y] evincing a clear disregard for the laws and morals of society , and [has failed] past efforts at rehabilitation” does not enjoy the presumption. See id. § 40-35-102(5), (6 ) (1997) ; State v. Fields , 40 S.W.3d 435, 440 (Tenn. 2001). A sentence involving confinement is appr opriate when (A) Confinement

is necessary

to protect society by

restraining a defendant who has a long

history of crimin al conduct; (B) Confinement

is neces sary

to avoid de

precia ting the seriousness of the

offense or confinement is particularly suited to pr ovide an effec tive dete rrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have frequently or recently

been applied u nsucces sfully

to the def

endant. Tenn. Code Ann. § 40-35-103(1)(A) - (C) (1997).

Furthermore , the def

endant’s potential for rehabilitation or lack thereof should be examined when determining whether an alterna tive sentence is appropriate. Id. § 40- 35 -103(5) (1997). Sentencing issues are to be determined by the facts and

circum stances presented in each case. See State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

When there is a challenge to the leng th, range, or manner of servic e of a sentence, it is the du ty of t

his court to conduct a de novo review of the record with a presumption that the determinations made by the trial court are cor

rect. See Tenn. Code Ann. § 40-35-401(d) (1997). T his presum ption is “conditioned upon the affirmative showing in the record that the tria l court considered

the sentencing principles and all relevant fa cts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Likewise, the tria l court has an affirmative duty to state on the record, eithe r oral ly or in wr itin g, whic h enha ncemen t and m itiga ting fa ctors it fou nd and its f indi ngs of fact. Tenn. C od e Ann. §§ 4 0-35-209 (c), -2 10(f) ( Supp. 2002) ; State v. Troutman , 979 S.W.2d 271, 274 ( Tenn. 199 8); State v. R ussell , 10 S.W.3d 270, 278 (Tenn. Crim. App. 1999).

The defenda

nt in this ca se enter

ed his ple as as a

Ran ge II offender; thus, he does not enjoy the presumption of favorable candidacy for alterna tive sentencing. See Tenn. Code Ann. §-4-

40-35-102(6) (1997). T

herefo re, he bo re the bu rden in th e trial c ourt of de

monstrating the p

ropriety of a sent ence oth er than o ne of tota

l confine ment.
The lower court found applicable enhanceme nt fac tors rela

tive to the defendant’s prior history of criminal convictions or be havior, the particularly

great personal injuries inflicted on the victim, the offense having been committed to gra tify the defe

ndant’s desire for plea sure or excitemen

t, and the defendant’s abuse of a position of private trust. See id. § 40-35-114(2), (7), (8), (16) (Supp. 2002). On the other hand, the court found mitigating factors based upon the de fendant’s favora ble work history and his voluntary admission of guilt. See id. § 40-35-113(13) (1997). The court then found that the enhancement factors wer e entitled to far more weight than the mitigating factor s. The court was signific antly unimpres sed with th

e defendant’s a

menabilit y to rehabilitation, finding

that the d efenda nt failed to take r esponsibi lity

for his actions by blaming the victim, was not

truthful about the

offense s, and ha

d enga ged in similar ac tivity

with the sa

me victim on m any prior

occasio ns. The c ourt expre ssed conc ern that the defe ndant would not exhibit appropr iate conduct towa

rd the victim

if he were allowed

to rem ain in a non- incarc erati ve set ting, in that the defenda

nt was re siding in

the victim’s mother’s home, and the victim was living less than one mile awa

y. T he court found th at the defendan t had committed a violent offense and was not eligible for a Community Corrections sentenc e, and thathe had not demonstrated suitability for a probationary se

ntence. Thus, the court imposed a fully incarcerative sentence. Upon appellate review, we agree that the defenda

nt has not demonstrated that he is a suitable c andidate

for alte rnative sentenc ing. I

ndeed, th e e vidence demonstrates otherwise. Becau se he was convicted of crimes against the person, the defendant is not eligible for Community Corrections sentencing. See id. § 40-36-1 06(a)( 2) (Supp. 2002). On appeal, he aptly conc edes his ineli gibil ity for th is for m of al ternat ive se ntenc ing.

Thus, the remaining options for a l ternativ e sentencing ar

e full pro bation and split confinement

coupled with probation. The trial court ’s fin dings that the d efenda nt is a poor

candida te for rehabilitation due to his lack of remorse, lack of candor, and untruthfulne ss are supported by the record. These findings in turn support the lower co urt’s de te rmination that the defendant did not carry his burden of demonstrating his suitability f or full probation. See Tenn. Code Ann. § 40-35- 103(5) (1997); State v. Pierson , 678 S.W.2d 90 5, 906 (Te nn. 1984) ; State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1 983); State v. Nunley , 22 S.W.3d 28 2, 289 (Te nn. Crim. A

pp. 1999) ; State v . Zeolia , 928 S.W.2d 457, 463 (Ten n. Crim. Ap

p. 1996); State v. Williamson , 919 S.W.2d 6 9, 84 (Te nn. Crim. App. 1995 ); State v. Dowdy , 894 S.W.2d 301, 305-06 (Tenn. Crim. App. 1994).

The defendant likewise has demonstrated neither in the trial nor the appellate court that he is an appropriate candidate for an alternative sentence involving probation as part of a sentence of split confinement. As noted by the trial court, the potential for thedefendant’s conduct to go aw ry, if he is released, is substantial. On a prior occasion, the victim was re turned to he r mother’s home on the condition that the defendant not be present in the home, y et he moved into the-5-

homewithin a mo nth. Ther e is likew ise evide

nce that following

the initia tion of the se charg es, the defendant harassed the victim by r

unning off the road a vehicle in which she w as a passenger and repeat edly drove by the home in which the victim lived, even though he had been orde red not to do so. Given these overwhelming indications that the defenda nt has little or no desire to abide by restrictions placed u

pon him relative to c ontact wi th the vic tim, we, lik

e the tria l court, a re loath to give judicial sanction to his remaining in the community dur ing a portion of a sent

ence of split confinement.
In light of

all of the evidence, the defendant ca nnot carry the burden of demonstrating that an alternative sentence is appropriate for him. We there fore affirm the lower court’s imposition of Depa rtmen t of C orrect ion s enten cing.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE