State of Tennessee v. Jerry Allen Ketchum

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 19, 2002

STATE OF TENNESSEE v. JERRY ALLEN KETCHUM

Direct Appeal from the Criminal Court for Sullivan County

No. S43622 R. Jerry Beck, Judge

No. E2001-02008-CCA-R3-CD

May 17, 2002

The Defendant entered a plea of nolo contendere to attempted aggravated sexual battery. Pursuant

to his plea agreement, the Defendant received a four-year sentence, with the manner of service of

the sentence to be determined by the trial court. Following a sentencing hearing, the trial court

ordered that the Defendant serve the four-year sentence in the Tennessee Department of Correction.

The Defendant now appeals, arguing that he should have received some form of alternative

sentencing. Concluding that the record supports the trial court’s denial of alternative sentencing, we

affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

DAVID H. WELLES, J., joined.

Nat H. Thomas, Kingsport, Tennessee (on appeal); and Larry R. Dillow, Kingsport, Tennessee (on

appeal and at trial), for the Appellant, Jerry Allen Ketchem.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; H. Greeley Wells, Jr., District Attorney General; James Goodwin, Assistant District

Attorney General; Barry P. Staubus, Assistant District Attorney General; and Teresa Murray-Smith,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

The Defendant was indicted by the Sullivan County Grand Jury for aggravated sexual

battery, a Class B felony. Pursuant to a plea agreement, the Defendant entered a plea of nolo

contendere to attempted aggravated sexual battery and received a four-year sentence, with the

manner of service of the sentence to be determined by the trial court. At the sentencing hearing, the

parties agreed to the following stipulation concerning the evidence in the case:

If this matter had gone to trial, the State’s proof would have been that on or about

October 11th, 1999, the victim [C. O.]1 was in her mother’s room, laying [sic] on the

bed, watching television. The defendant came into the room naked, pulled down [C.

O.’s] panties and rubbed his penis over her buttocks. He then attempted to roll [C.

O.] over. At that time, [C. O.] began crying loudly and struggled away and ran to her

brother’s room.

Her brother, Ryan,2 whose room is upstairs, stayed up the rest of the night while [C.

O.] was there so that he could protect her.

[C. O.] was taken later that morning to be examined by Dr. Ben Altman, at the

Bristol Regional Medical Center Emergency Room. Dr. Altman took a history,

including the victim describing what had happened to her the night before.

Dr. Altman examined the victim and discovered redness in the perianal region. Dr.

Altman concluded that this was consistent with sexual assault.

These acts all occurred in Sullivan County, Tennessee.

....

. . . The victim was seven (7) on October 11th, 1999. Less than thirteen (13) years of

age.

At the sentencing hearing, the Defendant presented the testimony of two longtime friends,

who stated that the Defendant had a good reputation in the community and that he had a good

reputation for truth and veracity. The Defendant’s adult daughter and adult son from a prior

marriage next testified that the Defendant had been a good father to them and would be a good

candidate for probation or alternative sentencing.

The Defendant then testified. He stated that he was fifty-eight years old at the time of the

sentencing hearing and that he had been a lifelong resident of Bristol, Tennessee. The Defendant

testified that he had worked for Eastman from 1977 until his recent termination due to the entry of

his nolo contendere plea to attempted aggravated sexual battery. The Defendant discussed his filed

written response to the Sexual Offender Risk Assessment that had been performed on him, in which

he maintained his innocence. However, the Defendant testified that he was willing to undergo any

treatment in order to get probation.

1

It is the policy of this Court to refer to minor victims in cases of sexual abuse by initials rather than by name.

2

Ryan and C. O. were the Defendant’s step-children at the time of the offense.

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The Defendant testified that he was working as an electrician with his two brothers at the

time of the sentencing hearing. He testified that he had been married and divorced twice. In his

opinion, his second former wife was responsible for the false accusations of aggravated sexual

battery because the Defendant had accused her of adultery and because he told her she was going

to “lose the children.”

On cross-examination, the Defendant admitted that his polygraph test (taken as part of his

evaluation by Counseling and Consultation Services in Johnson City, Tennessee) showed deception.

The Defendant reported that he quit drinking two years prior to the sentencing hearing, after his last

driving while intoxicated conviction in November of 1999.

Finally, the defense presented the testimony of Brenda Darlene Brown, who stated that she

manages a bridal boutique and is currently involved in a relationship with the Defendant. Ms.

Brown testified that the Defendant is a “wonderful father” and “an all round good person.” She

explained that she had written the Defendant’s response to the Sexual Offender Risk Assessment for

him, because the Defendant “writes slow.”

The State presented the testimony of the victim’s father, who discussed the impact of the

crime on his daughter. The Court also considered the pre-sentence report and the Sexual Offender

Risk Assessment, both of which had been filed prior to the sentencing hearing.

The Defendant now challenges on appeal the trial court’s order that he serve his entire four-

year sentence in the Tennessee Department of Correction. When a criminal defendant challenges

the length, range, or manner of service of a sentence, the reviewing court must conduct a de novo

review of the sentence with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption, however, “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). In the event that the record

fails to show such consideration, the review of the sentence is purely de novo. State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its sentencing determination, the trial court, at the conclusion of the sentencing

hearing, determines the range of sentence and then determines the specific sentence and the propriety

of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the

sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to

sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)

evidence and information offered by the parties on the enhancement and mitigating factors, (6) any

statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.

Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is

the minimum within the applicable range unless there are enhancement or mitigating factors present.

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Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start

at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and

then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).

The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d

at 123. However, the sentence must be adequately supported by the record and comply with the

purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237

(Tenn. 1986).

When imposing a sentence, the trial court must make specific findings of fact on the record

supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any

enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial

court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of

recording the court’s reasoning is to guarantee the preparation of a proper record for appellate

review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

If our review reflects that the trial court followed the statutory sentencing procedure, that the

court imposed a lawful sentence after having given due consideration and proper weight to the

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are

adequately supported by the record, then we may not modify the sentence "even if we would have

preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The

defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d

at 169.

Specifically, the Defendant argues that he should have been granted some form of alternative

sentencing. Tennessee Code Annotated § 40-35-102(5) provides as follows:

In recognition that state prison capacities and the funds to build and maintain

them are limited, convicted felons committing the most severe offenses, possessing

criminal histories evincing a clear disregard for the laws and morals of society, and

evincing failure of past efforts at rehabilitation shall be given first priority regarding

sentencing involving incarceration . . . .

A defendant who does not fall within this class of offenders “and who is an especially mitigated

offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable

candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court

must presume that a defendant sentenced to eight years or less and not an offender for whom

incarceration is a priority is subject to alternative sentencing and that a sentence other than

incarceration would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80

(Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The Defendant, as a standard

offender convicted of a Class C felony, see Tenn. Code Ann. § 39-13-213(b), is presumed to be a

favorable candidate for alternative sentencing.

However, all offenders who meet the criteria are not entitled to relief; instead, sentencing

issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744

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S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing Moss, 727 S.W.2d at 235). Even if a defendant

is presumed to be a favorable candidate for alternative sentencing under Tennessee Code Annotated

§ 40-35-102(6), the statutory presumption of an alternative sentence may be overcome if

(A) [c]onfinement is necessary to protect society by restraining a defendant

who has a long history of criminal conduct;

(B) [c]onfinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence to

others likely to commit similar offenses; or

(C) [m]easures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the

trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent

part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be

considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-

103(5); see also State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).

More specifically, the Defendant argues that he should have been granted probation. In

determining whether to grant or deny probation, the trial court may consider the circumstances of

the offense; the defendant’s criminal record, background and social history; the defendant’s physical

and mental health; the deterrent effect on other criminal activity; and the likelihood that probation

is in the best interests of both the public and the defendant. State v. Parker, 932 S.W.2d 945, 958

(Tenn. Crim. App. 1996). The Defendant bears the burden of establishing suitability for probation.

Tenn. Code Ann. § 40-35-303(b); Ashby, 823 S.W.2d at 169.

The trial court made detailed findings and carefully weighed all of the appropriate factors,

both favorable and unfavorable, in determining that the Defendant had not established his suitability

for probation. The trial court considered the information in the presentence report, the Sexual

Offender Risk Assessment, appropriate victim impact evidence, and the testimony of the witnesses

at the sentencing hearing. The trial court pointed out that certain factors weighed in favor of the

Defendant’s request for probation. These favorable factors, as pointed out by the trial court, include

that the Defendant would have community support if he received alternative sentencing, that the

Defendant had a good work record at Tennessee Eastman, that the Defendant had worked

“successfully” from the early 1970's until the conviction, that the Defendant is a good father to his

adult children from a prior marriage and that the Defendant has “solidified his relationship with

God.” The trial court then assessed the negative factors, including the Defendant’s prior criminal

convictions, the negative aspects of the Sexual Offender Risk Assessment, and the victim impact

evidence. The presentence report reflects that between April 3, 1996 and May 17, 2000, the

Defendant received two speeding convictions and three driving while intoxicated convictions.

During the same time period, the Defendant also received convictions for criminal trespass, public

intoxication, driving without a license, assault, and driving while his license was suspended. The

trial court also took note of the fact that the Defendant abused a position of private trust in

committing the offense. See Tenn. Code Ann. § 40-35-114(15). The trial court carefully balanced

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all of the relevant factors and determined that “the negative factors indicating a denial of probation

outweigh any potential favorable factors set out in any of the proof or anything submitted.”

In our view, the record supports the sentence imposed. The Defendant complains that

because he entered an Alford plea,3 the trial court should not have considered any negative aspect

of the Sex Offender Risk Assessment that was based on the Defendant’s denial of guilt. Our

supreme court has held that a Defendant’s failure to acknowledge culpability for his or her actions

may also support a finding that a sentence of confinement is necessary to avoid depreciating the

seriousness of an offense. See State v. Gutierrez, 5 S.W.3d 641, 647 (Tenn. 1999); see also State

v. Donald Paul Presley, No. E2000-00592-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 629, at *26

(Tenn. Crim. App., Knoxville, Aug. 14, 2001); State v. Thomas Wayne Shields, No. W2000-01524-

CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 18, at *33 (Tenn. Crim. App., Jackson, Jan. 4, 2000).

Further, this Court has held that an Alford plea does not prohibit a trial court from considering a

defendant’s failure to accept responsibility for his criminal conduct as it relates to his rehabilitation

potential. State v. Homer L. Evans, No. E2000-00069-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS

196, at *14 (Tenn. Crim. App., Knoxville, Mar. 20, 2001). Finally, in our view, the Defendant’s

criminal history and his abuse of the position of trust as a step-father are sufficient to rebut the

presumption that he is a favorable candidate for alternative sentencing, including probation.

For these reasons, we conclude that the presumption of alternative sentencing was sufficiently

rebutted in this case and that the trial court thus did not err by imposing a sentence of confinement.

Accordingly, we AFFIRM the judgment of the trial court.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

3

In entering an Alford plea, a defendant “faced with strong evidence of guilt and no substantial evidentiary

support for [his] claim of innocence” may refrain from adm itting his culpability and accep t a sentence. North Carolina

v. Alford, 400 U.S. 25, 91 (1 970).

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