IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1999
FILED
STATE OF TENNESSEE, ) April 19, 1999
) No. 02C01-9808-CC-00251
Appellee ) Cecil Crowson, Jr.
) HARDIN COUNTY Appellate C ourt Clerk
vs. )
) Hon. C. Creed McGinley, Judge
HAROLD DEWAYNE JARRETT, )
) (Three Counts - Sexual Battery)
Appellant )
For the Appellant: For the Appellee:
Richard W. DeBerry Paul G. Summers
Asst. District Public Defender Attorney General and Reporter
117 Forrest Avenue North
Camden, TN 38320 Patricia C. Kussmann
Assistant Attorney General
Criminal Justice Division
Guy T. Wilkinson 425 Fifth Avenue North
District Public Defender 2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
G. Robert Radford
District Attorney General
John W. Overton
Asst. District Attorney General
P. O. Box 484
Savannah, TN 38372
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Harold Dewayne Jarrett, entered “best interest” guilty pleas to
three counts of sexual battery in the Circuit Court of Hardin County on June 9,
1998.1 The negotiated plea agreement provided that the appellant would receive
three two year sentences to be served consecutively and that the trial court would
determine the manner of service of the sentences. At the sentencing hearing, the
trial court imposed penitentiary confinement. The appellant appeals this ruling,
arguing that the trial court should have granted him either total probation or
placement in a community corrections program.
Finding no error in the sentencing decision of the trial court, we affirm.
Background
The appellant’s convictions arose from incidents in early 1998 involving three
minor children, ages seven, fourteen, and fifteen. The appellant was a neighbor and
friend of the victims’ parents and the victims often visited at the appellant’s
residence. The basis for the instant charges stem from the appellant’s sexual
contact of the juvenile victims in the appellant’s automobile and in his home.
Despite these allegations, the appellant adamantly denies his culpability in
these offenses. Rather, he maintains that the “three girls lied about me messing
with them.” The appellant provided his version of the events which entailed his
driving the three girls to Wal-Mart so they could purchase film. The appellant
dropped the girls off at Wal-Mart while he waited in his vehicle in the parking lot.
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The appellant was indicted on two counts of sexual battery and one count of aggravated
sex ual ba ttery.
2
Inside the store, the three girls were arrested for shoplifting and taken to “city hall.”
Frightened by what would happen to them, the girls informed police officers that the
appellant “had handle[d] the girls the wrong way.”
At the time of the sentencing hearing, the appellant, a life-long resident of
Hardin County, was a sixty-seven year old divorcee. The appellant has no prior
criminal record. He has never abused alcohol nor taken any illegal substance. The
appellant quit school in the sixth grade in order to help on his parents’ farm. The
appellant’s medical condition is in a state of deterioration. Since the late 1970's, the
appellant has suffered an “episode of Bell’s Palsy . . . , stroke (1981-82), heart
surgery (1989-90), second heart attack (1995), and on-going treatment for high
blood pressure.” He is currently taking medication for his heart condition along with
blood pressure medication.
The appellant’s granddaughter testified that, if granted probation, the
appellant would live with family members and she guaranteed that family members
would look after him. She explained that, considering the appellant’s deteriorating
health, she would like to spend time with him before he dies.
In addition to this testimony and the pre-sentence report, the trial court also
had the opportunity to examine a mental evaluation of the appellant conducted
pursuant to Tenn. Code Ann. § 39-13-705 (1998 Supp.), which revealed:
The examinee’s level of denial regarding his current conviction
demonstrated severe avoidance. He denied participation in any
offense against the victims. His lack of acceptance of responsibility
(denial), poor insight, and failure to learn from the experience
increases the likelihood of reoffending. Further, the examinee has
developed, expressed, and seems to have internalized his story of how
he was victimized for the offense(s). This will make treatment more
complicated and difficult.
The examinee, based o[n] his level of denial, should participate in
individual followed by group treatment in order to reduce his tendency
to reoffend. . . .
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In addition, the subject’s tendency to associate himself with younger
females and/or males should be addressed, processed, and forbidden.
After considering all the evidence presented, the trial court denied the
appellant any form of an alternative sentence and imposed a sentence of
confinement in the Department of Correction. Specifically, the trial court found:
We have a person before the Court that quite obviously is a sexual
deviate and has a pattern of behavior that poses a substantial risk to
the community at large. . . .
...
. . . [T]his is the type of activity that the public deserves to be protected
from.
Particularly in looking at the report that was filed, Sex Offender
Presentence Clinical Evaluation, it gives the Court great cause for
concern because of an indication in there of his lack of acceptance or
responsibility, his poor insight, and failure to learn from the experience
increases the likelihood of reoffending.
The Court feels . . . that this person poses a very high likelihood of
recidivism. He is not the type that would be subject to effective
rehabilitation. That alternative sentencing would be of no effect in this
because of his lack of cooperation in compiling the sex offender’s
report plus the nature and circumstances surrounding these offenses.
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 only applies, however, 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).
The appellant first argues that the trial court should have granted him a
sentence pursuant to the Community Corrections Act. A defendant convicted of a
crime against the person, as provided in title 39, chapter 13, parts 1-5, is not eligible
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for a community corrections sentence. See Tenn. Code Ann. § 40-36-106(a)(2)
(1996 Supp.). Sexual battery is codified at Tenn. Code Ann. § 39-13-505 and is,
therefore, a crime against the person. Notwithstanding his ineligibility based upon
the classification of offenses, he would, nevertheless, remain eligible for placement
in the community corrections program, if the proof in the record established a causal
connection between the crimes committed and a history of chronic alcohol abuse,
drug abuse or mental health problems. See Tenn. Code Ann. § 40-36-106(c). See
also State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). The record
reflects no such proof. Indeed, the appellant denies that he has a “special need” as
required by the statute. Accordingly, the appellant is not eligible for a sentence
pursuant to the Community Corrections Act.
Nonetheless, the appellant remains statutorily eligible for probation. See
Tenn. Code Ann. § 40-35-303(a) (1997). His eligibility for probation, however, is not
conclusive; the appellant bears the burden of establishing his suitability for
probation. See Tenn. Code Ann. § 40-35-303(b). To meet this burden, the
appellant must demonstrate that probation will "subserve the ends of justice and the
best interest of both the public and the defendant." State v. Bingham, 910 S.W.2d
448, 456 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1995) (citation omitted).
While not controlling on the issue of probation, but relevant to the sentencing
court's determination are the following:
(1) the nature and circumstances of the conduct involved, Tenn. Code Ann §
40-35-210(b)(4);
(2) the defendant's potential or lack of potential for rehabilitation, Tenn. Code
Ann. § 40-35-103(5);
(3) whether a sentence of probation will unduly depreciate the seriousness of
the offense, Tenn. Code Ann. § 40-35-103(1)(B); and
(4) whether a sentence other than probation would provide an effective
deterrent to others likely to commit similar crimes, Tenn. Code Ann. §
40-35-103(1)(B).
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See Bingham, 910 S.W.2d at 456.
As previously indicated, the appellant maintains the burden of establishing
that the sentence imposed by the trial court is improper. In this regard, we find that
the appellant has failed in carrying this burden. The appellant adamantly denies any
criminal wrongdoing. Rather, he asserts that he is the victim of the ruthless revenge
and lies created by the three girls. Additionally, the record reflects the appellant’s
lack of cooperation in compiling the required sex offender’s report and the result
therein indicating that the appellant poses a very high likelihood of recidivism.
Finally, the appellant was both a trusted neighbor and friend of the victims’ and their
families. By his own admission, the victims frequently visited the appellant at his
residence and he would let them borrow food, would drive them to Wal-Mart, and
would drive them to school.
Factors of credibility, remorse, and candor are legitimate considerations in
determining suitability for total probation as they reflect upon a defendant’s potential
for rehabilitation. See Tenn. Code Ann. §40-35-103(5) (1997); State v. Bunch, 646
S.W.2d 158 (Tenn.1993); State v. Dykes, 803 S.W.2d 250 (Tenn.Crim.App.1990);
State v. Jenkins, 733 S.W.2d 528 (Tenn.Crim.App.1987); State v. Pierson, 678
S.W.2d 905 (Tenn.1984); State v. Leone, No. 02C01-9206-CR-00148
(Tenn.Crim.App. at Jackson, September 29, 1993). Notwithstanding, there is
concern that “it is unfair” to rely solely upon the defendant’s lack of remorse or
candor where an Alford plea has been entered since an Alford plea, by definition,
does not acknowledge one’s guilt.2 See, e.g., Leone, No. 02C01-9206-CR-00148.
The nature of the plea, however, does not alter the resulting effect of the plea or
make the defendant less guilty. An Alford guilty plea is a guilty plea in all material
respects. See North Carolina v. Alford, 400 U.S. at 37, 91 S.Ct. at 167 (no
2
In entering an Alford plea, a defendant “faced with strong evidence of guilt and no
sub stan tial evid entia ry sup port f or [his ] claim of inn oce nce ” ma y refra in from adm itting h is
culpability and a ccept a senten ce. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160
(1970).
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constitutional requisite that accused make express admission of guilt); United States
v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995). Indeed, this situation is no different
from that of a defendant who is found guilty by a jury and at sentencing refuses to
admit his criminal wrongdoing. Thus, a sentencing court is not prohibited from
considering a defendant’s denial or lack of remorse in making the appropriate
sentencing determination. See Leone, No. 02C01-9206-CR-00148. As evidenced
by the medical evaluation in the present case, albeit preceded by an Alford plea,
“circumstances may justify finding that defendant’s attitude and behavior are not
conducive to rehabilitation.” Id. The record supports consideration of these
principles in denying total probation. See, e.g., State v. McConnell, No. 03C01-
9604-CC-00148 (Tenn. Crim. App. at Knoxville, Feb. 24, 1998). Moreover, there is
no dispute that the young victims in this case were children over whom the appellant
had assumed a paternal role. This proof supports a finding that the appellant
abused a position of trust. See State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim.
App. 1996). Although the appellant is eligible for probation, the circumstances of
the offenses, including the appellant's abuse of a position of private trust, Tenn.
Code Ann. § 40-35-114(15), are sufficient to support a denial of probation. State v.
Boston, 938 S.W.2d 435, 438 (Tenn.Crim.App. 1996).
After review of the record before us, we conclude that the appellant has failed
to establish that the sentence imposed by the trial court was erroneous. Sentencing
Commission Comments, Tenn. Code Ann. § 40-35-401(d)(1997); Ashby, 823
S.W.2d at 169. The record supports the trial court’s denial of a sentence of total
probation or placement in a community corrections program. Accordingly, the
judgment of the trial court is affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
____________________________________
JOSEPH M. TIPTON, Judge
____________________________________
L. T. LAFFERTY, Senior Judge
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State v. Harold Jarrett
Combined Opinion