IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1996 SESSION
FILED
July 24, 1997
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
)
Appellee, ) No. 02C01-9608-CC-00290
)
) Tipton County
v. )
) Hon. Joseph H. Walker, Judge
)
RONALD WAYNE STRICKLAND,) (Aggravated Sexual Battery)
)
Appellant. )
For the Appellant: For the Appellee:
Frank Deslauriers Charles W. Burson
P.O. Box 1156 Attorney General of Tennessee
Covington, TN 38019 and
Deborah A. Tullis
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
and
Walt Freeland
Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Ronald Wayne Strickland, was convicted of aggravated
sexual battery, a Class B felony, pursuant to a guilty plea in the Tipton County Circuit
Court. He was sentenced as a Range I, standard offender, to eight years in the
Department of Correction. In this appeal as of right, he contends that the trial court
erred when it concluded that he was not eligible to be sentenced under the Community
Corrections Act. We affirm the judgment of the trial court.
The defendant contends that he is eligible for a community corrections
sentence under the special needs provision of the Community Corrections Act of 1985,
T.C.A. § 40-36-106(c). 1 That section states:
Felony offenders not otherwise eligible under subsection (a),
and who would be usually considered unfit for probation due
to histories of chronic alcohol, drug abuse, or mental health
problems, but whose special needs are treatable and could be
served best in the community rather than in a correctional
institution may be considered eligible for punishment in the
community under the provisions of this chapter.
T.C.A. § 40-36-106(c). The defendant acknowledges that this court has interpreted the
phrase “who would be usually considered unfit for probation” to mean that a defendant
must be otherwise eligible for probation to qualify to receive a sentence under this
provision. State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989). However, he
argues that the 1993 amendments to T.C.A. § 40-35-303(a) and T.C.A. § 40-36-
106(e)(3) change the law in a way that a defendant with special needs is now eligible
for a community corrections sentence even if he is initially ineligible for probation.
Under T.C.A. § 40-35-303(a), a defendant is eligible for probation if his
sentence is eight years or less and he is not convicted of aggravated sexual battery or
one of the other enumerated offenses. In 1993, the legislature added a sentence to the
1
Having been convicted of aggravated sexual battery, a crime against a person, the
defend ant does not otherw ise qu alify for a com m unity corrections s ente nce . See T.C.A. § 40-36-
106(a)(2).
2
statute which states, “A defendant shall also be eligible for probation pursuant to § 40-
36-106(e)(3).” In relevant part, T.C.A. § 40-36-106(e)(3) grants the trial court the
authority to place an offender that it terminates from a community corrections program
on probation. “This authority of the court extends to offenders not originally eligible for
probation after service of at least one (1) year.” T.C.A. § 40-36-106(e)(3). The
defendant argues that under these provisions, a community corrections sentence must
be available to a defendant who is initially ineligible for probation.
Although we agree with the defendant that some offenders who are
initially ineligible for probation are eligible for a community corrections sentence, see
T.C.A. § 40-36-106(a), we do not believe that the 1993 amendments to T.C.A. § 40-36-
106(3) and T.C.A. § 40-35-303(a) were intended to alter the requirements a defendant
must meet to fit within the special needs provision. To qualify to be sentenced pursuant
to T.C.A. § 40-36-106(c), a defendant must be eligible for probation. Staten, 787
S.W.2d at 936. The amendments do not address qualifying under this subsection.
Thus, having been convicted of an offense for which probation is statutorily prohibited,
the defendant does not meet this requirement. See T.C.A. § 40-35-303(a).
In addition to his statutory argument, the defendant relies on State v.
Robert Bryant Rhodes, No 03C01-9405-CR-00174, Blount County, slip op. at 7 (Tenn.
Crim. App. July 20, 1995), to support his contention that he is eligible for a community
corrections sentence. Rhodes, convicted of rape, was not eligible for probation
because he received a sentence greater than eight years. See T.C.A. § 40-36-
106(e)(3). This court concluded that he was ineligible for a community corrections
sentence for the sexual offense under T.C.A. § 40-36-106(a)(2), but also added,
“absent a showing that he has special needs that can best be treated in the
community.” It concluded, though, that such needs were not proven.
3
Although Rhodes indicates that a defendant who is ineligible for probation
because of the length of his sentence may be eligible to be sentenced under the special
needs provision of the Community Corrections Act, the defendant does not fit within this
category. Unlike Rhodes, the defendant in this case was convicted of an offense for
which probation is statutorily prohibited. See T.C.A. § 40-35-303(a). In any event, the
language from Rhodes upon which the defendant relies has not been followed by this
court. Other opinions have failed to recognize any distinction between ineligibility for
probation due to the crime committed and ineligibility because of the length of the
sentence imposed. See State v. Lanny Crowe, No. 01-C-01-9503-CC-00064, Wayne
County, slip op. at 2 (Tenn. Crim. App. July 6, 1995); State v. Scotty G. Kilgore, 03C01-
9408-CR-00278, Washington County, slip op. at 2-3 (Tenn. Crim. App. June 13, 1995);
State v. Robert Roy Atnip, 01C01-9002-CC-00035, Dekalb County, slip op. at 5 (Tenn.
Crim. App. June 20, 1990), app. denied (Tenn. Sept. 24, 1990); see also State v.
Boston, 938 S.W.2d 435, 438 n.4 (Tenn. Crim. App. 1996); State v. Haynes, No.
01C01-9512-CC-00412, Giles County, slip op. at 5 n.3 (Tenn. Crim. App. Sept. 13,
1996); State v. Robert Wilson, Alias Tiny, No. 03C01-9209-CR-00305, Blount County,
slip op. at 11-12 (Tenn. Crim. App. Mar. 22, 1993).
To qualify for a community corrections sentence under T.C.A. § 40-36-
106(c), a defendant must be eligible for probation. Staten, 787 S.W.2d at 936.
Because the defendant does not meet this requirement, see T.C.A. § 40-35-303(a), the
trial court properly concluded that he is not eligible to receive a community corrections
sentence under the special needs provision.
4
Accordingly, the judgment of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Joe B. Jones, Presiding Judge
Jerry L. Smith, Judge
5