IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1998 SESSION
December 21, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. NO. 01C01-9802-CC-00091 Clerk
Appellate Court
APPELLEE, * MAURY COUNTY
VS. * Hon. Robert L. Jones, Judge
CLESSIE T. JACO, * (Attempted Rape-Two Counts)
APPELLANT. *
For Appellant: For Appellee:
William Carter Conway John Knox Walkup
236 Court Square, Suite 205 Attorney General and Reporter
Franklin, TN 37064 450 James Robertson Parkway
Nashville, TN 37243-0493
Kim R. Helper
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Mike Bottoms
District Attorney General
P.O. Box 459
Lawrenceburg, TN 38464
Lawrence R. Nickell, Jr.
Assistant District Attorney General
P.O. Box 1619
Columbia, TN 38402
OPINION FILED: ____________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Clessie T. Jaco, entered pleas of guilt to two counts of
attempted rape, a Class C felony. The trial court imposed a Range I sentence of six
years as to each count to be served consecutively. In this appeal of right, the
defendant raises the following issues:
(I) whether the trial court properly rejected the
defendant’s request for alternative sentencing;
and
(II) whether the trial court erred by imposing consecutive
sentences.
We affirm the judgment of the trial court.
During the summer of 1995, S.J.,1 the thirteen-year-old niece of the
defendant, moved into the residence of the defendant and his wife. During the first
week of August in 1995, the defendant engaged in oral sex with S.J. A few days
later, he had sexual intercourse with her. The convictions were based upon these
two incidents.
The defendant, forty years of age, had been married nearly twenty
years at the time of the sentencing hearing. He and his wife have three children.
The defendant has a tenth grade education and works as a painter, roofer,
carpenter and repairs mobile homes. He earns approximately $20,000 to $24,000 a
year, much of which is required for the support of his family. The defendant served
in the National Guard for about a year and received an honorable discharge.
The defendant contended that the victim had been affectionate and
1
It is the policy of this court to withhold the names of minors subjected to sexual abuse.
2
pursued him to some degree during the period before the two sexual encounters.
His pretrial statement to Deputy Mike Diaz and Detective Michelle Jones, however,
contradicted that assertion. The defendant admitted to the officers that he had
continually pressured the victim for sex to the point that the victim had called his wife
at work. He acknowledged that he had wanted oral sex with the victim, "First one
thing, then another."
The defendant testified that he knew the wrongfulness of his actions
and felt remorse. He exhibited remorse immediately upon the discovery of the
crimes by his wife and the Department of Human Services. When confronted, the
defendant expressed thoughts of suicide. Afterward, the defendant sought
professional psychiatric counseling at the Tennessee Christian Medical Center. He
was prescribed some medication and received some counseling which he
discontinued after one week.
The defendant’s prior criminal record consists of a public intoxication
conviction and citations for traffic violations. The defendant also admitted to having
used marijuana although he had no convictions of that crime.
Darlene Jaco, the wife of the defendant, described her husband as a
workaholic and a good father to his three children. She testified that her husband
never abused alcohol but conceded that he did occasionally use marijuana against
her wishes, although not in the presence of the children in the home.
Ms. Jaco recalled that the victim's father, who had been divorced, had
asked if she and her husband would take custody of the victim so that she would
have a stable home. She testified that she had noticed the victim's affectionate
3
behavior toward the defendant and was concerned about the possibilities. Ms. Jaco
stated that she had talked to a social worker several times before the August 1995
occurences and that the victim and the defendant assured her and the social worker
nothing was going to happen.
When the sexual acts occurred, the victim called Ms. Jaco at work.
When Ms. Jaco arrived at her residence, the defendant told her he wanted to kill
himself for the things he had said to the victim. Unaware of what had transpired,
Ms. Jaco took the defendant to the hospital to receive counseling. She did not know
what had actually occurred until the defendant was arrested. Apparently, the victim
had remained silent until the defendant had confessed to the doctors and police.
The victim was removed from the Jaco household before the defendant was allowed
to return. Ms. Jaco and the defendant have continued to live together since that
time.
Ms. Jaco described the defendant as remorseful. She testified that
the week of psychiatric treatment seemed to help her husband and she believed
that he could have used even more counseling. Ms. Jaco stated that the defendant
discontinued his use of the anti-depressant because it caused his testicles to swell.
She testified that there has been no contact between the victim and the defendant
since the crimes.
Neal Jaco, an older brother, described the defendant as a hard worker
and a good father. He testified that the defendant had done various jobs for him
including re-building some houses and a grocery store. He stated that the
defendant worked long hours and completed his jobs in a workmanlike manner.
Neal Jaco estimated he had paid the defendant approximately $12,000 for his work
4
during the prior year and had more work for him to do in the future. Also he stated
that he had noticed the victim was "all over" the defendant in a way that was not
proper for a thirteen-year-old. He described the victim as having been overtly
affectionate on one occassion.
I
The defendant's first complaint is that the trial court erred by denying
an alternative sentence. He argues that the trial court did not properly consider the
defendant as a candidate for probation and/or community corrections.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing
in 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). The
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and the sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
5
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann. §
40-36-103. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant
meets the minimum requirements of the Community Corrections Act of 1985,
however, does not mean that he is entitled to be sentenced under the Act as a
matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).
The following offenders are eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
6
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
In denying alternative sentencing, the trial judge stated:
Outright probation in this case would certainly depreciate
the seriousness of this offense. Even if there was no
coercive element ..., this still would have amounted to the
offense of incest .... So even if you give the defendant
the benefit of the doubt ..., the bottom line is this was a
reprehensible offense by an uncle against his niece that
he sought custody of very aggressively for the two or
three months preceding this early August event in 1995.
The trial judge considered the defendant's lack of a prior criminal
record but ruled that, "violators of the law [must] be punished so as to create an
effective general deterrent to others that might be inclined to commit similar
offenses."
The nature and circumstances of the offense may often be so
egregious as to preclude the grant of probation. See State v. Poe, 614 S.W.2d 403
(Tenn. Crim. App. 1981). Here, the defendant had two sexual encounters with his
thirteen-year-old niece. He accepted and abused a position of private trust.
Moreover, while the defendant did express remorse for his actions, he placed a
portion of the blame on the victim. This suggests the defendant is not entirely able
7
to accept full responsibility for his actions; full acceptance is, of course, a better
indication of amenability to rehabilitation. See Tenn. Code Ann. § 40-35-103.
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). "[E]ach case must be bottomed upon its own facts." State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987). Because sentencing requires an
individualized, case by case approach, that method of analysis necessarily
embodies the exercise of discretion at the trial court level. See Moss, 727 S.W.2d
at 235; State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991). Thus, there is a
sound basis for the presumptive correctness standard of appellate review:
It is not the policy of this Court to place trial judges
in a judicial strai[gh]t-jacket in this or any other area, and
we are always reluctant to interfere with their traditional
discretionary powers.
Ashby, 823 S.W.2d at 171. That principle prevails here on the matter of probation.
In our view, the trial court acted within its discretion in denying probation.
The trial court judge did not address the possibility of the Community
Corrections Program upon denying probation. Nevertheless, the defendant is not
eligible for Community Corrections because Tenn. Code Ann. § 40-36-106(2)
precludes those convicted of crimes against a person under title 39, chapter 13,
parts 1-5 from participating in the program.
II
The defendant also contends that the trial court erred in imposing
consecutive sentences. The state argues that the defendant waived his right to
appeal the consecutive sentencing because it was a condition of the plea
agreement.
8
Regarding the issue of waiver, the state submits that there was a
negotiated plea agreement with the defendant in which he agreed to the imposition
of consecutive sentences stemming from his plea to two counts of attempted rape.
The defendant did not respond to the state's waiver argument; instead, he chose to
simply argue the issue on the merits.
The record does not contain the plea agreement or a transcript of the
submission hearing. It is apparent, however, that consecutive sentencing was part
of the plea agreement. During the sentencing hearing, the following exchange
occurred:
THE COURT: The agreement in this case as I
understand it was for a six year sentence on each count
and with them to run consecutively for a total effective
package of a twelve year sentence; is that correct?
MR. NICKELL [State's attorney]: Yes, sir.
MR. CONWAY [Defense attorney]: Correct.
In our view, the defendant waived his right to appeal consecutive
sentencing. State v. McKissack, 917 S.W.2d 714, 715 (Tenn. Crim. App. 1995).
Rule 3(b)(2), Tenn. R. App. P., provides as follows:
In criminal actions an appeal as of right by a defendant
lies from any judgment of conviction entered by a trial
court ... on a plea of guilty ... if the defendant seeks
review of his sentence and there was no plea agreement
concerning the sentence, or if the issues presented for
review were not waived as a matter of law by the plea of
guilty or nolo contendre and if such issues are apparent
from the record of the proceedings already had.
(Emphasis added). Rule 37(b)(2), Tenn. R. Crim. P., would also bar relief:
(b) When an Appeal Lies. An appeal lies from any order
or judgment in a criminal proceeding where the law
provides for such appeal, and from any judgment of
conviction:
***
(2) upon a plea of guilty or nolo contendre if:
9
***
(ii) defendant seeks review of the sentence set
and there was no plea agreement under Rule 11(e).
(Emphasis added). The defendant cannot now complain of a sentence to which he
had agreed as part of his plea bargain agreement with the state. Tenn. R. App. P.
3(b); Tenn. R. Crim. P. 37(b)(2)(ii).
Even if this court were to address the correctness of consecutive
sentencing, we would hold that consecutive sentencing would have been warranted
by these circumstances. Prior to the enactment of the Criminal Sentencing Reform
Act of 1989, the limited classifications for the imposition of consecutive sentences
were set out in Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our
supreme court ruled that aggravating circumstances must be present before
placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d
227 (Tenn. 1987), the court established an additional category for those defendants
convicted of two or more statutory offenses involving sexual abuse of minors. There
were, however, additional words of caution:
[C]onsecutive sentences should not be routinely imposed
... and ... the aggregate maximum of consecutive terms
must be reasonably related to the severity of the
offenses involved.
Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the
cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,
the codification of the holdings in Gray and Taylor; consecutive sentences may be
imposed in the discretion of the trial court only upon a determination that one or
more of the following criteria2 exist:
(1) The defendant is a professional criminal who has
knowingly devoted himself to criminal acts as a major
2
The first four criteria are found in Gray. The fifth category in Gray, bas ed on a spe cific
num ber of prio r felony con victions, m ay enhan ce the s entenc e range but is no lon ger a listed c riterion.
See Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.
10
source of livelihood;
(2) The defendant is an offender whose record of
criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to the
consequences;
(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and
hesitation about committing a crime in which the risk to
human life is high;
(5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising
from the relationship between the defendant and the
victim or victims, the time span of defendant’s
undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed
while on probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our high court
ruled that consecutive sentences cannot be required for any of the classifications
"unless the terms reasonably relate to the severity of the offenses committed and
are necessary in order to protect the public from further serious criminal conduct by
the defendant." Id. at 938. The Wilkerson decision, which modified guidelines
adopted in State v.Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991),
governing the sentencing of dangerous offenders, described sentencing as "a
human process that neither can nor should be reduced to a set of fixed or
mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnote omitted).
11
Because the defendant was convicted of two statutory offenses
involving sexual abuse of a minor, the statutory basis for imposing a consecutive
sentence is Tenn. Code Ann. § 40-35-115(b)(5). The trial court gave special
consideration to the relationship between the defendant and the victim of the crimes.
The defendant abused a position of public trust granted to him by the state and a
private trust between himself and the victim. The trial court weighed this heavily
against the fact that there was no significant time span of undetected sexual activity,
the nature and scope of sexual acts were somewhat limited, and there was an
apparent lack of residual, physical, and mental damage to the victim.
The defendant cites State v. Hayes, 899 S.W.2d 175, 187 (Tenn.
Crim. App. 1995), a case in which the defendant was convicted of sexual battery for
french kissing his daughter. In Hayes, one factor weighed in favor of consecutive
sentencing and other factors suggested otherwise:
The state stresses the fact that the victim was the
defendant’s daughter. However, the circumstances in
this case relating to the remaining factors to be
considered militate against the use of subsection
115(b)(5). There was no significant time span of
undetected sexual activity, the nature of the criminal
conduct was nonaggravated, and the extent of residual
damage to the victim caused by the conduct is not
sufficiently shown.
Id. at 187 (emphasis added). Thus, this court modified the judgment to provide for
concurrent sentencing. But see State v. Woodcock, 922 S.W.2d 904 (Tenn. Crim.
App. 1995).
In our view, the defendant's reliance on Hayes is misplaced. As
applied in this case, the factors listed in subsection 115(b)(5) do not militate against
consecutive sentencing; they weigh in favor of it. Here, the defendant was
convicted of "two or more statutory offenses involving sexual abuse of a minor."
12
Unlike Hayes, the defendant's criminal conduct in this case was aggravated in that it
involved oral sex and intercourse with his niece. Even though the time span was
short and there was no proof of emotional damage at the sentencing hearing, the
fact that the conduct was aggravated should be given substantial weight.
In this case, the aggregate sentence reasonably relates to the severity
of the offenses. The record establishes that defendant aggressively tried to gain
custody of the victim in order to help his brother. The defendant's sexual
misconduct began within a month. Furthermore, the total sentence is necessary for
the protection of the public from further crimes by the defendant. The record shows
the defendant, after having oral sex with the victim, felt remorseful for what he had
done. Despite the fact that he had time to reflect on the nature of his actions, he
engaged in sexual intercourse with the victim.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
______________________________
Thomas T. W oodall, Judge
_______________________________
Curwood Witt, Judge
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State v. Clessie Jaco
Combined Opinion