The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY SESSION, 1996 December 4, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9511-CR-00376
)
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
PAM C OSTA, ) JUDGE
)
Appe llant. ) (Direct Appeal-Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES R. RAY JOHN KNOX WALKUP
Ray and Housch Attorney General and Reporter
211 T hird Aven ue No rth
Nashville, TN 37219 REBECCA LYFORD
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
LILA STATOM
Assistant District Attorney
222 Se cond A venue N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appellant Pam Costa appeals as of right from a June 23, 1995 order
denying her Motion to Modify Sentence. On April 11, 1994, Appellant pled
guilty to rape of a minor and received a twelve year sentence. At the second
evidentiary hearing on Appellant’s motion, counsel for Appellant requested
that he be allowed to make an offer of proof. The presiding judge denied
counsel’s req uest. The issu e presented by Appellant is wh ether the trial court
erred in d enying A ppellant’s reques t to make an offer of p roof.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTUAL BACKGROUND
On April 11, 1994 Appellant pled guilty to rape of a minor and received
an agreed upon twelve ye ar sentence . As a standa rd Range I Offender,
Appellant’s earliest parole eligibility date was after service of 30% of her
sentence. On July 20, 1994, Appellant filed a Motion to Modify Sentence
pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. In her
Rule 35 motion, she alleged that her sentence should be modified because
she would not be paroled until she had served 50% of her sentence due to her
status as a sex offender and the alleged “policy” of the Parole Board to deny
parole o f sex offend ers until the y had se rved 50% to 60% of their sen tence. A
hearing wa s held on Fe bruary 24, 199 5. At the conclus ion of the Febru ary
hearing, the presiding judge permitted Appellant to supplement the record on
the statistical profile of sex offenders in the Department of Correction as
comp ared with other crim inals. The hearing was re-o pened on Jun e 24, 19 95.
At the June hearing, Appellant introduced the testimony of Gary Lukowski, the
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assistant for Planning and Research for the Tennessee Department of
Correction. He testified that sex offenders were granted parole with less
frequency than other criminals according to 1993/1994 statistics. He further
testified that the average sentence for a person convicted of rape in all grand
division s of Te nnes see w as twe lve yea rs with a n aver age in carce ration o f six
and a half years before parole was granted. Finally, Lukowski testified that
other sex offenders generally were not granted parole until they served over
50% of their sentences. Appellant then tried to introduce the parole records of
eleven current sex offender inmates in the Tennessee Prison for Women. The
presiding judge de nied cou nsel’s req uest to intro duce th ese rec ords.
Appellant claim s that these files wou ld have helped prove that sex offen ders
were required to serve 50% to 60% of their sentence before parole was
granted.
MOTION TO MODIFY SENTENCE
In her Motion to Modify Sentence, Appellant argues that her sentence
should be modified because of an alleged “policy” of the Parole Board to deny
sex offenders parole until fifty to sixty percent of their sentence has been
served. Because of this policy, Appellant argues that she will be denied her
thirty percent release e ligibility date and therefore will have to serve
substantially more time than she expected to serve. A sentence may be
modified under Rule 35 of the Tennessee Rules of Criminal Procedure when
the trial cou rt finds that the original se ntence must b e reduc ed “in the in terests
of justice.” State v. Hodges, 815 S.W .2d 151 ,154 (T enn. 19 91); State v. Irick,
861 S.W.2d 375, 276 (Tenn. Crim. App. 1993); Rule 35(b), Tenn. R. Crim. P.
(com miss ion co mm ents). H owev er, whe re a trial c ourt ac cepts a Rule
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11(e)(1)(C) Tennessee Rule of Criminal Procedure guilty plea agreement, the
trial court should not modify the agreed upon sentence absent unusual
circum stance s, such a s unfore seen p ost-sen tencing d evelopm ent. State v.
McD onald , 893 S.W.2d 945, 947 (Tenn. Crim. App. 1994) citing State v.
Hargrove , 1993 WL 3007 59, at *2 (Ten n. 199 3). On appe al, the tria l court’s
disposition of a motion to modify will not be disturbed unless the appellant
court finds an abu se of disc retion. Irick, 861 S.W.2d at 376.
Appellant’s motion to modify her sentence was properly denied. She
has failed to demonstrate any unusual circumstances which would entitle her
to a reduced sentence. Any information regarding the release eligibility dates
of sex offen ders wo uld have been a vailable to A ppellant w hen sh e agree d to
the se ntenc e she receive d. The fact sh e did n ot disc over th is evide nce u ntil
after her plea does not entitle her to relief either through a reduction of
senten ce or po st-convictio n relief. See , Rickey S ams v. S tate, 1996 WL
66388 4 (holding misun derstan ding as to parole e ligibility not sufficien t to
render g uilty plea invo luntary.)
In view of ou r holding th at any m isunde rstanding of her pa role eligibility
would not entitle Appellant to a reduction in an agreed upon sentence, we find
the trial court did not err in refusing to allow Appellant to place the records of
other female sex offenders into evidence. Even if this has been error it was
harmless in view of the fact that Mr. Lukowski had testified to the increased
incarcerative periods experienced by sex offenders. In addition, there was no
real dispute at the hearing that sex offenders serve relatively longer
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incarcerative periods than do other types of offenders. Thus, the exclusion of
this evidence ad ds little if anything to the resolution of this m atter.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
WILLIAM M. BARKER, JUDGE
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