IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1997 SESSION
January 6, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9701-CR-00032
Appellee, * CARTER COUNTY
VS. * Hon. Arden L. Hill, Judge
ANTHONY CHARLES GODSEY, * (Sexual Battery)
Appellant. *
For Appellant: For Appellee:
Robert Y. Oakes John Knox Walkup
Office of the Public Defender Attorney General and Reporter
First Judicial District
Main Courthouse Georgia Blythe Felner
Elizabethton, TN 37643 Counsel for the State
450 James Robertson Parkway
Gerald L. Gulley, Jr. Nashville, TN 37243-0493
Attorney
P.O. Box 1708 Kenneth C. Baldwin
Knoxville, TN 37901-1708 Assistant District Attorney General
(on appeal only) 900 East Elk Avenue
Elizabethton, TN 37643
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Anthony Charles Godsey, was indicted by a Carter
County Grand Jury for aggravated sexual battery. Pursuant to a plea agreement,
the defendant entered a guilty plea to sexual battery, a Class E felony. Tenn. Code
Ann. § 39-13-505. The trial court approved a Range I, five-year sentence but
denied the defendant's application for probation.1
In this appeal of right, the defendant contends that the trial court
should have granted probation, split confinement, or Community Corrections. We
find no error and affirm the judgment of the trial court.
On the evening of August 3, 1995, the defendant delivered some
firewood to the residence of his friend, Lawrence "Buck" Hite. Hite's ex-wife, Nellie,
and her two minor daughters were present. After drinking several beers with Hite,
the defendant "laid down on the couch like on numerous occasions" to spend the
night. During the early morning hours of the next day, the defendant went to the
bed of the eight-year-old victim, "pulled down her panties, kissed her around her
vagina, and made digital penetration...." When the victim began to cry, the
defendant left her bedroom. Later, the victim told her grandmother who, in turn, told
Ms. Hite. A physical examination of the victim at Northside Hospital indicated sexual
abuse.
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
1
A Ran ge I sente nce for a Class E felony is one to two years ; a Rang e III senten ce is four to
six years. Tenn. Code Ann. § 40-35-112. Our supreme court approved such hybrid sentences as
long as th ey are the p roduct o f a "plea ag reem ent enter ed volun tarily and kno wingly." Hicks v. State,
945 S.W .2d 706 ( Tenn . 1997).
2
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 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).
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).
3
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 a 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
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).
Subsection (2) would initially exclude the defendant from receiving a
Community Corrections sentence because sexual battery is a "crime[] against the
person" codified in "title 39, chapter 13, parts 1-5." See Dwight Leatherwood v.
4
State, No. 113 (Tenn. Crim. App., at Knoxville, Oct. 4, 1990). He is possibly eligible,
however, under the special needs provision of the Act, which allows some
individuals who commit crimes against the person to be placed on Community
Corrections if they have special needs arising from mental health problems for which
treatment is available. Tenn. Code Ann. § 40-36-106(c).
The 1989 Act does provide that the record of the sentencing hearing
"shall include specific findings of fact upon which application of the sentencing
principles was based." Tenn. Code Ann. § 40-35-209(c). And, while we
acknowledge that de novo appellate review does not relieve the trial judge from
compliance with the provisions of § 40-35-209(c), we are nonetheless able to
conclude that the record is adequate to support the denial of an alternative
sentence.
The defendant, thirty-one years of age, has an eleventh grade
education and has worked as a roofer. An alcoholic who has drunk heavily since
the age of sixteen, the defendant has stated that he is "willing to do whatever is
necessary to try to treat" his problem with alcohol. The defendant provides little in
the way of support for his only child, a thirteen-year-old daughter. He is divorced
and lives with his parents.
The presentence report reveals that the defendant has had a number
of brushes with law enforcement since the time he was nineteen years old. The
record establishes that the defendant had eleven prior convictions for public
intoxication, and prior convictions for driving under the influence, destruction of
private property, driving on an expired license, driving on a revoked license, reckless
burning, resisting arrest, and disorderly conduct. After being placed on an intensive
5
probation program in 1990, the defendant was convicted of driving under the
influence within a year thereafter. The defendant became intoxicated while on work
release and took marijuana into the county jail; that resulted in an additional thirty-
day incarcerative sentence and another year of probation. In 1995, the defendant
was convicted of reckless burning, resisting arrest, and disorderly conduct; he
committed sexual battery while on probation for those offenses.
While stating a belief that the defendant was not a "full blown"
pedophile, the trial court determined that the defendant's continuous abuse of
alcohol presented a significant risk to others. It denied probation upon the basis that
conditional release from incarceration had not worked in the past. The defendant's
prior criminal history was a significant factor in the denial. The trial court also
pointed to deterrence, both individual and general. It concluded that the victim had
been "injured for the rest of her life," based upon testimony by her mother that she
suffered both physical and psychological consequences from the assault.
In our view, the defendant's prior criminal history militated against the
grant of probation. Although an important sentencing consideration is to impose the
least severe punishment necessary, the grant of probation might tend to depreciate
the seriousness of this offense. Tenn. Code Ann. § 40-35-103(1)(B). His failure to
rehabilitate after a number of previous jail terms and periods of probation indicates a
lack of amenability for rehabilitation. Measures less restrictive than confinement
have been unsuccessful. Tenn. Code Ann. § 40-35-103(1)(C). The number of the
prior offenses as much their gravity tend to support the denial of probation or a
sentence of split confinement. See Tenn. Code Ann. § 40-35-306.
6
Deterrence, of course, can rarely be the sole reason for the denial of
an alternative sentence. State v. Cummings, 868 S.W.2d 661, 668 (Tenn. Crim.
App. 1992); State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991). 2 Yet
sentencing requires an individualized, case-by-case approach. State v. Moss, 727
S.W.2d 229, 235 (Tenn. 1986). That method of analysis necessarily embodies the
exercise of discretion at the trial court level. See 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 or purpose 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.
State v. Ashby, 823 S.W.2d 166, 171 (Tenn. 1991). That principle prevails here on
the matter of probation, split confinement, and Community Corrections. In our view,
the trial court acted within its discretion in denying an alternative sentence.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
David H. Welles, Judge
____________________________
Jerry L. Smith, Judge
2
Deterrence is a factor in every criminal case and, therefore, the statutory denial of probation
because of deterrence, alone, must be supported by evidence indicating some special need or
consideration relative to that jurisdiction which would not be addressed by the normal deterrence
inheren t in any crim inal penalty. See State v. Jenkins, 733 S.W .2d 528, 535 (Tenn. Crim . App. 1987);
State v. Vance, 626 S.W.2d 287, 290 (Tenn. Crim. App. 1981). This standard appears in section 40-
35-103(1)(B) of Tenn. Code Ann., which provides for confinement if it is "particularly suited to provide
an effec tive deterre nce to oth ers likely to co mm it similar offe nses."
7