IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE SESSION, 1999 August 9, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
STATE OF TENNESSEE, )
) No. 03C01-9711-CC-00501
Appellee )
) GRAINGER COUNTY
vs. )
) Hon. Ben W. Hooper II, Judge
PAUL J. SWANSON, )
) (Sentencing)
Appellant )
For the Appellant: For the Appellee:
Lu Ann Ballew Paul G. Summers
Asst. Public Defender Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725 Clinton J. Morgan
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Alfred C. Schmutzer, Jr.
District Attorney General
Michael Gallegos
Asst. District Attorney General
Sevier County Courthouse
Sevierville, TN
OPINION FILED:
AFFIRMED WITH MODIFICATION OF JAIL CREDIT
David G. Hayes
Judge
OPINION
The appellant, Paul J. Swanson, appeals the sentencing decision of the
Grainger County Criminal Court following his guilty pleas to three counts of
attempted aggravated sexual battery, class C felonies. Pursuant to the terms of the
negotiated plea agreement, the appellant agreed to an effective six year sentence.
The agreement further provided that the manner of service of the sentences was to
be submitted to the trial court for determination. The trial court ordered total
confinement. The appellant appeals this decision contending that the trial court
erred in failing to grant alternative sentences and in failing to credit the appellant
with time spent in a residential sexual offender treatment center prior to entry of his
guilty pleas.
After review of the record, we affirm the judgment of the trial court; however,
finding the appellant entitled to additional pretrial credit, the judgment of conviction
is modified to reflect an additional sentence credit of forty-nine days.
Background
On May 28, 1996, and April 28, 1997, juvenile petitions were filed against the
appellant alleging that he had committed the offenses of sexual battery. The
alleged minor victims were members of his family.1 The allegations charged that the
appellant had sexual contact with the three minor children, including touching of the
vaginal area of the minor female and touching of the penile area of the two minor
male victims. On August 25, 1996, the appellant voluntarily entered Hermitage Hall,
1
The appellant was seventeen years of age in 1996. The victims were ages five, nine,
and nine respec tively at the time the petitions were filed.
2
a residential sex offender treatment program for juveniles located in Nashville.
On June 27, 1997, the juvenile court judge ordered that a psychological
examination of the appellant be completed by Cherokee Health Systems to
determine the appellant’s competency and mental condition at the time of the
alleged offenses. The examination was conducted on July 17, 1997. Dr. Jeffery
Munson, a clinical psychologist employed with Cherokee Health Systems,
determined that the appellant was competent to stand trial and that a defense of
insanity could not be supported. Specifically, Dr. Munson concluded that, although
the appellant “was suffering from a mental illness, . . . his mental status was not
such as [to] justifiably prevent his knowing the wrongfulness of his acts.”2 Based in
part on the results of this examination, the juvenile court granted the State’s motion
to transfer the case to the Criminal Court. On August 14, 1997, one day prior to the
appellant’s nineteenth birthday, he was transferred from the custody of Hermitage
Hall to that of the Grainger County Sheriff.3 Subsequently, three criminal
informations were filed in the Grainger County Criminal Court on September 16,
1997, charging the appellant with the attempted aggravated sexual battery of three
minor children. On this same date, the appellant entered guilty pleas to these
charges and a hearing was held to determine the manner of service of the
negotiated effective six year sentence.
The proof at the sentencing hearing revealed that the nineteen year old
appellant was a slow learner who had spent his entire educational career in special
education programs. Notwithstanding this placement, psychological testing of the
appellant revealed that his IQ was 83, below average but not mentally retarded.
Documentation generated during his one year stay in the Hermitage Hall sexual
2
Dr. Munson explained at the subsequent sentencing hearing that the mental illness
suffered by the appellant was that the appellant could be diagnosed with pedophilia.
3
The juvenile court set bond at $3000 and provided that, as a condition of bond, the
app ellant mu st be imm ediat ely tran spo rted to The Pine s Re side ntial T reatm ent C ente r in
Portsm outh, Virgin ia, for adm ission into a n adult res idential sex offende r treatm ent prog ram .
3
offender treatment program indicates that the appellant “has a history of sexually
offensive behavior since . . . the age of thirteen.” Indeed, while in treatment, the
appellant admitted to having inappropriate sexual contact with thirteen known
victims, all minors, both male and female. One of the known victims was also a
resident at Hermitage Hall. Ashley MacLachlan, a clinical therapist at Hermitage
Hall, opined that the appellant “continues to need a 24-hour, supervised, structured
setting in which his behaviors can be monitored. He is at significant risk to sexually
reoffend, and, if placed into the community, it is likely that he will reoffend and target
young children.” Her treatment of the appellant also revealed his tendency to justify
his behavior by his misfortune and mistreatment by other individuals, including his
own sexual abuse, and his belief that he will not get caught. This assessment also
places the appellant at a significant risk for reoffense. Finally, Ms. MacLachlan
concluded that the appellant was not responding to the normal approaches toward
the treatment of adolescent offenders and was in need of a more intensive adult-
oriented treatment program.4
The appellant expressed his awareness of the serious nature of his offenses
and his desire to return with his mother to her home in Michigan and seek outpatient
counseling. He explained that the incidents were caused by flashbacks of his own
sexual abuse. The appellant denied that he reported his abuse of other minor
victims during his counseling sessions at Hermitage Hall. He also refutes other
specific findings and observations made by Ms. MacLachlan during his treatment
period. The appellant described the abuse inflicted upon him by other inmates while
being housed in both the Grainger and Hamblen County jails. 5 This continuous
4
There are currently no residential sex offender treatment programs for young men over
the age of nineteen in the state of Tennessee. The appellant applied to The Pines Treatment
Cen ter in P ortsm outh , Virgin ia. Th e cos t of on e year ’s trea tme nt at th is cen ter is a ppro xim ately
$118, 625. The lack of the appellant’s finances prohibit consideration of this treatment option.
5
The appellant related that he had endured incidents of abuse including being beaten up
by fellow inmates, being pummeled with cans of hot water, bars of soap, and wet paper rolls,
being forced to perform oral sex, and being forced to relinquish his $10/week allowance provided
by his f am ily.
4
abuse has made him even more fearful of incarceration in the Department of
Correction.
After considering this evidence along with testimony from the appellant’s
mother and father, the trial court concluded:
. . .this is a matter . . . where I am of the opinion that I have no choice
but to order you to serve the six year sentence. Looking at your record
that’s been accumulated thus far, you have a serious problem, and I’m
certain that you are sorry for what you’ve done; I don’t question that.
But the problem has to be addressed; it’s got to be dealt with. There’s
no one in the private sector to deal with it, probably because of the
financial burden that is associated with private treatment. I’m not sure
that the State of Tennessee is capable of dealing with it . . . but it is the
only thing that’s left.
The worst thing that I could do for you, and possibly unknown others,
would be to place you on probation. I don’t think that you could control
whatever impulses -- you know, that you have, and it’s for that reason
that I do sentence you to serve six years in the Tennessee Department
of Correction.
Additionally, finding no legal authority to do so, the court also denied the appellant’s
request that he be given three hundred and fifty-five days pretrial credit for time
spent at Hermitage Hall.
Analysis
When a defendant challenges the manner of service of his sentence, this
court must conduct a de novo review with the presumption that the determination
made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1997). This
presumption is applied if the record shows that the trial court properly considered
relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Moreover, the appellant maintains the burden of showing that the sentence imposed
by the trial court is improper. Sentencing Commission Comments, Tenn. Code Ann.
§ 40-35-401(d).
5
Again, the appellant asserts that the trial court erred in ordering that the
appellant serve his sentences in the Department of Correction. Specifically, the
appellant contends that he should have been granted total probation. In support of
his argument, the appellant avers that a sentence of total confinement is not
appropriate because (1) he has no prior criminal history, (2) no evidence was
presented to show confinement was necessary to avoid depreciating the
seriousness of the offense, and (3) he had never previously been provided adult sex
offender treatment. See Tenn. Code Ann. § 40-35-103(1)(1997).
Upon our de novo review, we conclude that, although the appellant is a range
I standard offender of class C felonies, he has a criminal history evincing a “clear
disregard for the laws and morals of society” and “failure of past efforts at
rehabilitation.” Tenn. Code Ann. § 40-35-102(5)(1997). The record is replete with
the appellant’s admissions of his history of sexual abuse toward minor children and
with observations by others that the appellant has not cooperated with his treatment
program and has in fact relapsed as evidenced by his acts of deviant behavior
committed while in the program. Accordingly, he is not presumed to be a favorable
candidate for alternative sentencing and bears the burden of showing his
entitlement to an alternative sentence. See Tenn. Code Ann. § 40-35-102(5) & (6);
Tenn. Code Ann. § 40-35-401(d).
The appellant has failed to carry his burden of establishing his entitlement to
any alternative sentence, including probation. Again, the record shows that the
appellant has engaged in deviant behavior for the past six years. Despite his
assertions to the contrary, the testimony of Ashley MacLachlan demonstrated that
he is unwilling to accept responsibility for his actions and has shown unwillingness to
participate in a treatment program. The majority of the incidents of abuse were
committed against younger family members, including his own brothers and sisters,
thus, abusing a position of private trust. See State v. Zeolia, 928 S.W.2d 457, 461
6
(Tenn. Crim. App. 1996). He committed similar acts of abuse while in the care of a
treatment facility. Moreover, the appellant was diagnosed as being very likely to
reoffend. See Tenn. Code Ann. § 40-35-103(1)(A)-(C). The trial court, recognizing
these factors in addition to the appellant’s urgent need for sexual offender
treatment, determined that, based upon the unavailability of private funding for
inpatient supervised treatment, the only viable sentencing option in the best interest
of both the appellant and society in general was that of total confinement. See
generally Tenn. Code Ann. § 39-13-701 et seq. (1997) (Tennessee Standardized
Treatment Program for Sex Offenders Act); Tenn. Code Ann. § 40-35-503(c) (1997)
(parole eligibility for convicted sex offenders). We, also, can reach no other
conclusion. A sentence of total confinement is appropriate. This issue is without
merit.
The appellant also asserts that he is entitled to pretrial sentence credit for
time spent in the youth sexual offender treatment program at Hermitage Hall.6 In
denying the appellant’s request, the trial court noted that the appellant voluntarily
committed himself to such treatment and was under no obligation by the court to do
so. As such, the court found no authority under which the court could grant credit
for the time at Hermitage Hall.
Credit for pretrial detention is permitted
to allow the defendant credit on the sentence for any period of time for
which the defendant was committed and held in the city jail or juvenile
court detention prior to waiver of juvenile court jurisdiction, or county
jail or workhouse, pending arraignment and trial. The defendant shall
also receive credit on the sentence for the time served in the jail,
workhouse or penitentiary subsequent to any conviction arising out of
the original offense for which the defendant was tried.
6
The appellant remained in the care of Hermitage Hall from August 25, 1996, until August
14, 1 997 , whe n the juven ile cou rt tran sfer red h im to the c usto dy of th e Gr ainge r Cou nty Sh eriff’s
Department. The trial court correctly credited the appellant’s sentences with time served in the
county jail prior to his conviction.
7
See Tenn. Code Ann. § 40-23-101(c) (1997). The awarding of these credits is
mandatory. State v. Henry, 946 S.W.2d 833, 834 (Tenn. Crim. App. 1997) (citing
Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965)). Our supreme court has
interpreted the statute to mean that a prisoner is entitled to pretrial credit whenever
involuntarily committed, by a state actor, to a place of confinement, including, but
not limited to county jails, juvenile detention centers, and mental institutions. See
Marsh v. Henderson, 424 S.W.2d 193, 196 (Tenn. 1968). We can find no basis to
exclude institutional commitment to a legitimate sexual offender treatment program
from consideration for pretrial sentence credit. Thus, the essential query in
determining whether the appellant is entitled to pretrial credit for time spent at
Hermitage Hall focuses upon the voluntary/involuntary nature of his commitment.
The appellant argues that his commitment “was a result of the charge taken
against him in Juvenile Court and was in lieu of state custody. . . had he not
submitted himself into residential treatment, he most likely would have been
committed into state custody with the Department of Children’s Services.” W e reject
this position; rather, we concur with the trial court’s finding that the appellant’s
placement in the treatment program at Hermitage Hall was completely voluntary on
his behalf.
As an alternative position, the appellant asserts that he is at least entitled to
credit from June 27, 1997, until his transfer to the Grainger County Jail on August
14, 1997. In support of this argument, the appellant refers to the order of the
juvenile court judge stating that the appellant “is to be held for Grainger County. He
is not to be released to go anywhere until he has had a bond hearing.” This order of
the juvenile court expressly “confines” the appellant to Hermitage Hall pending a
bond hearing; thus, the order effectively transforms the appellant’s initial voluntary
commitment to an “involuntary” detention. Accordingly, we conclude the appellant
8
qualifies for pretrial credit from June 27, 1997, until his release therefrom on August
14, 1997.
We modify the trial court's judgment to reflect that the appellant is entitled to
an additional forty-nine days credit on his sentence for time served at Hermitage
Hall prior to his prison incarceration. As modified, the judgment of the trial court is
affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________
JOHN H. PEAY, Judge
__________________________________
JOHN EVERETT W ILLIAMS, Judge
9
State of Tennessee v. Paul Swanson
Combined Opinion