State of Tennessee v. Westley A. Albright

05/16/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 13, 2016 Session

STATE OF TENNESSEE v. WESTLEY A. ALBRIGHT

Appeal from the Circuit Court for Dickson County

No. 22CC-2013-CR-206 David D. Wolfe, Judge

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No. M2016-01217-CCA-R3-CD

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The defendant, Westley A. Albright, pled nolo contendere to one count of soliciting a

minor in violation of Tennessee Code Annotated section 39-13-528, a Class E felony, for

which he received a one-year suspended sentence and deferred judicial diversion. As a

condition of probation, the defendant agreed to participate in therapeutic treatment for the

duration of probation or until favorably discharged. Prior to the conclusion of the one-

year suspended sentence, the defendant’s treatment provider discharged him for failure to

comply with the goals of his treatment program. Following service of a probation

warrant and a hearing, the trial court revoked the defendant’s deferred diversion and

extended his probation for six months to allow for the completion of treatment. On

appeal, the defendant argues: (1) the trial court violated his due process rights by failing

to advise him at the time he entered his nolo contendere plea that, as a condition of

probation, he would be required to confess to the solicitation of a minor; (2) the trial

court violated his due process rights by relying on a probation rule not referenced in the

revocation warrant; and (3) the trial court erred when revoking his deferred diversion

despite his completion of the objective requirements of the sex offender treatment

program. Upon review, we affirm the findings of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., J.,

joined. CAMILLE R. MCMULLEN, J., concurring in results only.

Timothy V. Potter, Dickson, Tennessee, for the appellant, Westley A. Albright.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant

Attorney General; Ray Crouch, District Attorney General; and Sarah Wojnarowski,

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

OPINION

Factual and Procedural History

On April 23, 2013, a Dickson County Grand Jury returned a two-count indictment

charging the defendant with solicitation of a minor to commit aggravated statutory rape

in violation of Tennessee Code Annotated section 39-13-528, a Class E felony, and

especially aggravated sexual exploitation of a minor in violation of Tennessee Code

Annotated section 39-17-1005, a Class C felony. These charges arose as the result of the

defendant’s text messages and email exchanges with an undercover detective from the

Dickson County Sheriff’s Office who was posing as the mother of a thirteen-year-old

girl. According to the Affidavit of Complaint, the defendant expressed a desire to engage

in sexual acts with the mother and her minor daughter and arranged a meeting at a local

ball field for that purpose. In advance of the meeting, the defendant sent a photograph of

himself to the undercover detective and requested nude photographs of the mother and

minor. When questioned by the detective, the defendant admitted to the communications

but stated he was only going to the ball field to obtain the license plate number of the

minor’s mother.

On September 16, 2015, the defendant entered a plea of nolo contendere to the

solicitation of a minor charge in exchange for the dismissal of the aggravated sexual

exploitation of a minor charge and a suspended sentence of one year. After the

successful conclusion of the defendant’s one-year probationary period, the solicitation of

a minor charge was to be dismissed but not be expunged from his record.

During the plea hearing, the trial judge questioned the defendant extensively

regarding his understanding of the plea, and the defendant acknowledged he understood

his right to trial, the requirements of his probation, and the ramifications of his plea. The

defendant admitted the plea was voluntary. The defendant additionally acknowledged the

terms of his probation by signing an order indicating, in part, that he would “observe any

special conditions imposed by the Court as listed below: register as a sex offender [and]

pay court costs/fines” and “abide by the Specialized Probation Conditions for Sex

Offenders as adopted by the Tennessee Department of Correction.” The defendant then

initialed each specialized condition of probation separately, including the requirements

that he “attend, participate in, and pay for treatment or counseling with an approved

treatment provider” and “continue in such treatment as instructed for the duration of

supervision unless [his] treatment provider, in consultation with [his] Officer, instructs

[him] in writing that [he has] satisfactorily completed treatment.”

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The defendant subsequently selected James Barry Welch from a list of sexual

offender treatment providers approved by the State to provide the mandated treatment.

The goal of the treatment program was one-hundred percent honesty, community safety,

and no more victims. In furtherance of this goal, Mr. Welch conducted an assessment

and developed a treatment plan that included group therapy. The defendant signed off on

the objectives listed in the treatment plan, including:

Client will admit to 100 percent elements of the offense as described by his

victims through the official victims’ statement . . . Client will complete a

written statement of responsibility describing all elements of his crime, to

include grooming and cover-up actions . . . Client will complete a sexual

autobiography which will include all deviant or illegal sexual fantasies or

behaviors, the veracity and completeness which will be verified by

polygraph examination or other means . . . Client will complete a sexual

history following that.

According to Mr. Welch, it is typical for patients to initially deny wrongdoing.

However, once treatment begins and they are faced with their treatment goals, most

patients admit to the charges against them and move forward. The defendant did not do

this. As his treatment progressed, the defendant continued to maintain his innocence.

The defendant told Mr. Welch and the group that he never intended to engage in sexual

acts with a minor. Rather, he claimed he had a stalker and searched motherless.com, a

website notorious for incest, to locate and confront the stalker. He then arranged a

meeting with this alleged stalker so he could obtain her license plate number and turn it

over to authorities. When the defendant arrived for the meeting, he discovered the person

he had been communicating with was an undercover police officer, and he was arrested.

Mr. Welch and the group confronted the defendant regarding the weaknesses in

his story. They asked him questions like, “Why would you tell somebody that you want

to do an illegal sex act with a child if you didn’t intend to do that?” The defendant

refused to offer any further explanation. According to Mr. Welch, all evidence indicated

the defendant was lying about why he went to motherless.com and arranged the meeting,

so he asked the defendant to undergo a specific-incident polygraph examination. Mr.

Welch told the defendant that if he passed the examination, he would send a favorable

report to the defendant’s probation officer indicating there is no need for treatment.

Otherwise, he would unfavorably discharge the defendant due to his failure to comply

with the requirements of the program.

The defendant underwent the specific-incident polygraph examination and failed.

Mr. Welch subsequently gave the defendant the opportunity to return to the group and

explain why he failed. If the defendant had admitted to lying, he could have stayed and

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received treatment. Instead, the defendant continued to deny he intended to engage in

sexual acts with a minor. Mr. Welch then informed the defendant in front of the group

that he was being discharged from treatment. The other group members begged the

defendant to tell the truth so he could stay. At that point, the defendant changed his story

and indicated he intended to have sex with the minor’s mother, not the minor. Mr. Welch

proceeded with discharging the defendant because engaging in sexual activity with a

consenting adult does not violate the law or require treatment.

According to Mr. Welch, the defendant had a problem that needed to be addressed,

but the defendant was not willing to address it. For example, participation in group

therapy is a required component of treatment. While the defendant attended all scheduled

group meetings, he was hesitant to speak and would “dance around questions.”

Additionally, Mr. Welch worked with the group on cognitive distortion and issued

homework assignments on the topic. While these assignments were not mandatory, Mr.

Welch spoke to the defendant about them and informed the defendant they could be

completed without admitting guilt. The defendant still did not complete them. Mr.

Welch testified he could not treat the defendant if he would not admit he had a problem

or at least show progress towards being able to admit he had a problem. Ultimately, Mr.

Welch discharged the defendant due to his “failure to comply with his treatment

program.” Due to the defendant’s discharge from treatment, he never progressed to the

point of completing a sexual autobiography to be verified by polygraph examination or

completing a sexual history.

After Mr. Welch discharged the defendant from treatment, he and another

therapist wrote a letter to Jessica Forbes, the defendant’s probation officer, notifying her

that the defendant had been discharged from the program due to noncompliance with

treatment goals, explaining: “Although he appeared to be in compliance with supervision

and attended all required treatment groups, he was not able to give a credible statement of

responsibility for his offense of conviction.” Ms. Forbes requested a revocation warrant

by completing a Diversion Violation Report wherein she indicated the defendant was in

violation of Probation Rule Number 12, mandating the defendant “will abide by the

Specialized Probation Conditions for Sex Offenders as adopted by the Tennessee

Department of Correction.” Ms. Forbes then referenced Special Condition Number 3,

which states:

I will attend, participate in, and pay for treatment or counseling with an

approved treatment provider as deemed necessary by the Board, the Court,

or my Officer. I will continue in such treatment as instructed for the

duration of supervision unless my treatment provider, in consultation with

my Officer, instructs me in writing that I have satisfactorily completed

treatment.

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Thereafter, the trial court issued a revocation warrant on February 17, 2016,

indicating the defendant violated the terms of his probation when he was discharged from

sex offender treatment for noncompliance with treatment goals in violation of Probation

Rule Number 12 and Special Condition Number 3. In response, the defendant filed a

“Motion to be Relieved from Certain Conditions of Probation and to Avoid Unnecessary

VOP Allegation,” arguing he received probation as a result of entering a no contest plea

wherein he was not required to admit to the facts asserted against him. The completion

of a sex offender assessment was one of the many conditions of probation, and the

assessment required the defendant to participate in a sex offender treatment class. Mr.

Welch, the therapist conducting the class, required the defendant to admit to the facts

alleged by the State against him, but the defendant would not admit the facts because they

are false. Due to the defendant’s position that the facts asserted by the State are untrue,

he requested that the trial court relieve him of the condition of completing sex offender

treatment as a condition of his probation.

The trial court subsequently held a hearing during which it considered both the

revocation warrant and the defendant’s motion. After hearing arguments from the

attorneys and testimony from Ms. Forbes and Mr. Welch, the trial court found the

defendant to be in violation of his probation and denied the defendant’s motion. When

doing so, the trial court noted that Probation Rule Number 10 required the defendant to

comply with any special conditions imposed by the court, including registration as a sex

offender. The trial court then stated, “The only requirement he had was to complete

successfully the sex offender registry and his probation. The sex offender registry

requires the therapy that is described in this Court. It is required that he successfully

complete it, and the Court finds he did not.” Accordingly, the trial court found the

defendant violated his conditional plea and revoked his deferred diversion, making the

conviction permanent. The trial court further extended the defendant’s probation for six

months so he could complete treatment.

Following the hearing, the trial court entered a written order memorializing its

ruling, including these findings of fact and conclusions of law:

2. Following entry of his plea, the [d]efendant signed a form given to

him by his probation officer entitled “Specialized Probation Conditions for

Sex Offenders.” As part of said conditions, the [d]efendant acknowledged

that he “will attend, participate in, and pay for treatment or counseling with

an approved treatment provider as deemed necessary by the Board, the

Court or my Officer. I will continue in such treatment as instructed for the

duration of my supervision unless my treatment provider, in consultation

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with my Officer, instructs me in writing that I have satisfactorily completed

treatment.”

3. The [d]efendant selected an approved treatment program with an

entity known as Associates for Sexual Assault Prevention (ASAP).

4. The [d]efendant followed all directives and participated in the

program by attending all meetings and complying with all directions.

However, the [d]efendant’s sexual offender treatment provider, J. Barry

Welch, made the decision to discharge the defendant from the program

because the determination was made by him that the [d]efendant was not

truthful regarding his intentions for committing the crime that he was

convicted of committing. Specifically, Mr. Welch wrote a letter to the

[d]efendant’s probation officer which stated in part, “Although he appeared

to be in compliance with supervision and attended all required treatment

groups, he was not able to give a credible statement of responsibility for his

offense of conviction.”

...

6. This Court believes that the [d]efendant has in fact been dishonest

with his sexual offender treatment provider regarding his intentions for

committing the offense of solicitation of a minor. The Court believes the

[d]efendant has not been truthful about his motivations for committing the

crime.

Based on these findings, the trial court ordered the defendant is “adjudicated

GUILTY of violating his court ordered probation; therefore, the [d]efendant’s judicial

diversion in accordance with T.C.A. § 40-35-313 is hereby REVOKED and the

[d]efendant is hereby adjudicated GUILTY of the [C]lass E felony which he plead[ed] to

at the time his plea agreement was entered” and extended the defendant’s probation for

six months to allow compliance with the Specialized Probation Conditions for Sex

Offenders. This timely appeal followed.

Analysis

On appeal, the defendant argues: (1) the trial court violated his due process rights

by failing to advise him at the time he entered his nolo contendere plea that, as a

condition of his probation, he would be required to confess to the solicitation of a minor;

(2) the trial court violated his due process rights by relying on a probation rule not

referenced in the revocation warrant; and (3) the trial court erred when revoking his

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deferred judicial diversion despite his completion of the objective requirements of the sex

offender treatment program. In response, the State contends: (1) the defendant waived

the first issue by raising it for the first time on appeal; (2) the evidence supports probation

revocation based on the conditions included in the revocation warrant; and (3) the trial

court properly revoked the defendant’s probation and diversion status due to the

defendant’s failure to satisfactorily participate in the treatment program. Upon review,

we affirm the findings of the trial court.

I. Notice of Admitting Guilt

The defendant first asserts the trial court erred when revoking his deferred

diversion because the trial court failed to provide notice the confession of guilt was a

condition of his probation. In response, the State contends the defendant waived this

issue on appeal by failing to complain of lack of notice at the probation revocation

hearing. We conclude the issue is properly before this Court but lacks merit.

“[A] defendant who is granted probation has a liberty interest that is protected by

due process of law. Also, it is fundamental to our system of justice through due process

that persons who are to suffer penal sanctions must have reasonable notice of the conduct

that is prohibited.” State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997)

(citations omitted). Defendants are presumed to be on notice that, as a condition of

probation, they are required to comply with the criminal laws this state. Id. Revocation

of probation is subject to an abuse of discretion standard of review. State v. Harkins, 811

S.W.2d 79, 82 (Tenn. 1991).

Prior to his probation revocation hearing, the defendant filed a motion to be

relieved of the requirement that he complete sex offender treatment because “confession

should not be a condition of [his] probation.” He further addressed this argument during

the probation revocation hearing. This was enough to preserve the notice issue for

appeal.

With respect to notice of the terms of his probation, including the requirement he

participate in sex offender treatment, the defendant testified during his plea hearing that

he understood the terms of his probation. He further acknowledged the terms of his

probation by signing an order indicating, in part, that he would “observe any special

conditions imposed by the Court as listed below: register as a sex offender [and] pay

court costs/fines” and “abide by the Specialized Probation Conditions for Sex Offenders

as adopted by the Tennessee Department of Correction.” The defendant then initialed

each specialized condition of probation separately, including the requirements that he

“attend, participate in, and pay for treatment or counseling with an approved treatment

provider” and “continue in such treatment as instructed for the duration of supervision

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unless [his] treatment provider, in consultation with [his] Officer, instructs [him] in

writing that [he has] satisfactorily completed treatment.”

Subsequent to the defendant’s receipt and recognition of the terms of his

probation, he entered into the mandated sexual offender treatment. Ultimately, the

defendant was unfavorably discharged by Mr. Welch due to his failure to completely

participate in treatment by providing a credible statement of responsibility for his actions.

At the revocation hearing, Mr. Welch clarified that had the defendant been able to pass a

specific-incident polygraph examination in which he denied intending to solicit sex from

a minor, he would have instead sent a favorable report to the defendant’s probation

officer indicating no further need for treatment. The defendant, however, was unable to

do so. The defendant was then given multiple opportunities to explain his actions to Mr.

Welch and the treatment group but refused. The defendant’s actions were tantamount to

failing to fully participate in the program, so he was unfavorably discharged by Mr.

Welch prior to the completion of his probation.

In its order revoking the defendant’s probation, the trial court found the defendant

was dishonest during treatment regarding his intentions when sending messages to the

undercover agent via motherless.com. The trial court further found Mr. Welch

discharged the defendant from treatment due to this dishonesty, so he was guilty of

violating his probation. Based on our review of the record, the defendant was sufficiently

on notice that he had to attend, participate in, and pay for sexual offender treatment for

the duration of his probation or until satisfactory completion of treatment. While it

would have been helpful for the Specialized Probation Conditions for Sex Offenders to

include a more detailed description of the requisite treatment or counseling, a reasonable

person would believe this treatment or counseling requires honesty regarding the

underlying actions of the defendant. The defendant is not entitled to relief on the issue.

We note that in State v. Edith Mae Gillman, No. M2005-01863-CCA-R3-CD,

2006 WL 2960598 (Tenn. Crim. App. Oct. 18, 2006), this Court reversed a trial court’s

order revoking probation because the appellant was not on notice that admitting guilt was

a criterion for compliance with the treatment program. Id. at *7. When doing so, we

stated, “[I]t appears that successful completion of a sexual offender program wherein

guilt must be admitted may be a condition of probation.” Id. at *6 (emphasis added).

Looking to other states for guidance, we found “where the trial court failed to include

specific probation instructions requiring admissions of guilt, reticence does not constitute

a violation of probation.” Id. We, however, stopped short of requiring the defendant to

explicitly agree on the record that he was accepting probation on the basis he would

admit to his sex crimes. Id. at *6 n.3.

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The present matter is factually distinct from Edith Mae Gillman. In Edith May

Gillman, the defendant repeatedly admitted to the commission of the charged sex crime

during the course of treatment and would later recant her admissions. Here, Mr. Welch

repeatedly gave the defendant the opportunity to offer a credible explanation for his

actions, and the defendant could not do so. According to Mr. Welch, had the defendant

been able to give a credible explanation that did not involve the commission of a sex

crime, he would have favorably discharged the defendant from the program. This would

have fulfilled the terms of terms of the defendant’s probation without the admission of

guilt. The defendant, however, was unable to do this, and ultimately discharged from

treatment due to his dishonesty and failure to participate in treatment. The defendant had

ample notice of these probation requirements.

II. Notice of Probation Violation

The defendant next argues he did not receive proper notice of the probation

violation relied on by the trial court when revoking his deferred judicial diversion. Trial

courts follow the same procedure for terminating a defendant’s deferred diversion used

for revocation of probation. Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App.

2012). Trial courts have statutory authority to revoke probation upon a finding by a

preponderance of the evidence the defendant violated a condition of probation. Tenn.

Code Ann. § 40-35-311(e). To overturn the trial court’s revocation, the defendant must

show the trial court abused its discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.

2001). “In order to find such an abuse, there must be no substantial evidence to support

the conclusion of the trial court that a violation of the conditions of probation has

occurred.” Id. (citing Harkins, 811 S.W.2d at 82). The proof of a probation violation is

sufficient so long as it allows the trial court to make a conscientious and intelligent

judgment. Harkins, 811 S.W.2d at 82.

Both the Tennessee Supreme Court and the United States Supreme Court have

recognized that “the full panoply of rights due a defendant” in criminal prosecutions do

not apply to probation revocation hearings. See Black v. Romano, 471 U.S. 606, 613

(1985) (stating that “the flexible, informal nature of the revocation hearing, . . . does not

require the full panoply of procedural safeguards associated with criminal trial”); Bledsoe

v.. State, 387 S.W.2d 811, 814 (1965) (stating that “the defendant [in a probation

revocation hearing] is not entitled to the same guarantees as a person who is not

convicted and is merely on trial upon an accusation of crime”). Such a defendant is

instead entitled to the “minimum requirements of due process,” including: (1) written

notice of the claimed violation(s); (2) disclosure of the evidence against him or her; (3)

the opportunity to be heard in person and to present witnesses and documentary evidence;

(4) the right to confront and cross-examine adverse witnesses (unless good cause is

shown for not allowing confrontation); (5) a neutral and detached hearing body, members

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of which need not be judicial officers or lawyers; and (6) a written statement by the fact-

finder regarding the evidence relied upon and the reasons for revoking probation. Gagnon

v. Scarpelli, 411 U.S. 778, 786 (1973).

In 1996, the legislature enacted the Tennessee Standardized Treatment Program

for Sex Offenders in an effort to standardize “the evaluation, identification, treatment,

and continued monitoring of sex offenders at each stage of the criminal justice system, so

that the offenders will curtail recidivistic behavior, and so that the protection of victims

and potential victims will be enhanced.” Tenn. Code Ann. § 39-13-702. Accordingly,

offenders who are placed on probation as part of a negotiated settlement of their case are

required to submit to an evaluation for treatment. Tenn. Code Ann. § 39-13-705(b). Any

resulting plan of treatment then becomes a condition of probation. Id.

In the present matter, as a condition of his probation, the defendant agreed to

register as a sex offender and abide by the Specialized Probation Conditions for Sex

Offenders, including attendance and participation in an approved treatment program for

the duration of probation or until being notified in writing of his satisfactory completion

of treatment. After receiving notice of the defendant’s discharge from treatment due to

his noncompliance with treatment goals, Ms. Forbes requested a revocation warrant. The

trial court then issued and served the defendant with an Affidavit Violation of Diversion

that provided the following notice of his alleged probation violations:

Deponent further states that the aforesaid has not properly conducted

himself but has violated the conditions of his probation in material respect

by:

Probation Rule No. 12: If convicted of a sex offense, I will abide by the

Specialized Probation Conditions for Sex Offenders as adopted by the

Board of Probation and Parole.

Specialized Condition No. 3. which states: I will attend, participate in, and

pay for treatment or counseling with an approved treatment provider as

deemed necessary by the Board, the Court, or my Officer. I will continue in

such treatment as instructed for the duration of my supervision unless my

treatment provider, in consultation with my Officer, instructs me in writing

that I have satisfactorily completed treatment.

Violation: On 02/17/2016, Offender was discharged from the sex offender

specific treatment for noncompliance with treatment goals.

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During the subsequent revocation hearing, the State called two witnesses: Jessica

Forbes and Barry Welch. The defendant had the opportunity to cross-examine each

witness and did. The defendant also had the opportunity to call witnesses on his own

behalf but did not. The defendant had access to the discharge letter relied on by Ms.

Forbes when requesting the revocation warrant and even asked the trial court to place that

letter under seal, and the trial court granted the request. After considering the testimony

and evidence presented during the hearing, the trial court noted that Probation Rule

Number 10, mandating the defendant register as a sex offender, also required sex

offender treatment. Following the hearing, the trial court entered its written order

revoking the defendant’s deferred diversion and extending his probation for six months to

allow for completion of treatment. When doing so, the trial court did not mention

Probation Rule Number 10 and instead relied upon the defendant’s noncompliance with

the same Specialized Probation Conditions for Sex Officers requiring the defendant to

“attend, participate in, and pay for treatment or counseling” and to continue in such

treatment for the duration of his probation or until receiving written notice of satisfactory

completion referenced in the revocation warrant.

The revocation warrant put the defendant on notice of the charges against him,

namely that his discharge from treatment for noncompliance with treatment goals

violated Probation Rule Number 12 and Special Condition Number 3. When orally

ruling, the trial court noted the defendant’s premature discharge from treatment also

violated Probation Rule Number 10, which required the defendant to register as a sex

offender. However, trial courts speak through their written orders. Williams v. City of

Burns, 465 S.W.3d 96, 119 (Tenn. 2015). In its written order revoking the defendant’s

deferred diversion and extending his probation, the trial court relied on Special Condition

Number 3. Moreover, the purpose of the written notice requirement “is to provide

forewarning to the person sought to be charged of the existence of the particular facts in

question or to enable him of acquiring a means of knowing it.” State v. James C.

Wolford, No. 03C01-9708-CR-00319, 1999 WL 76447, at *7 (Tenn. Crim. App. Feb. 18,

1999). As demonstrated by his simultaneous request to be relieved of the requirement

that he attend sex offender treatment for the duration of his probation, the defendant

undoubtedly knew in advance of his revocation hearing that his untimely discharge from

treatment was the basis for his alleged probation violation. The defendant is not entitled

to relief on this basis.

III. Objective Requirements of Probation

Finally, the defendant argues he complied with the objective requirements of

treatment, and the trial court abused its discretion when revoking his probation based on

the subjective decision of the treatment provider. In response, the State contends the trial

court properly exercised its discretion when revoking the defendant’s probation and

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deferred diversion after finding he had been dishonest with his treatment provider. We

agree with the State.

As discussed supra, Tennessee Code Annotated section 39-15-705 required the

defendant to submit to an evaluation for sex offender treatment, and the subsequent plan

of treatment was to become a condition of probation. The probation order also required

the defendant to abide by the Specialized Probation Conditions for Sex Offenders, which

included attendance and participation in an approved treatment program for the duration

of probation or until being notified in writing of his satisfactory completion of the

treatment program. Relying on State v. William A. Marshall, No. M2001-02954-CCA-

R3-CD, 2002 WL 31370461 (Tenn. Crim. App. Oct. 14, 2002), the defendant claims he

complied with all objective requirements of treatment and was arbitrarily discharged due

to Mr. Welch’s subjective belief he was dishonest about the veracity of the State’s

charges against him. We disagree. Unlike the defendant in William A. Marshall, the

defendant in the present matter did not comply with the objective standards of treatment

and, therefore, did not satisfy the probation condition requiring treatment.

In William A. Marshall, the trial court examined the meaning and effect of the

term “complete” with respect to sex offender treatment. Id. at *7. This Court found

Marshall completed treatment despite his therapist’s subjective belief he had not

internalized the dogma and may be a continued threat to the community, thus requiring

additional treatment. Id. There, the treatment program did not have a finite deadline, and

no participants had ever completed it. Id. Marshall’s progress in the program, however,

was on track with other participants. Id. Moreover, Marshall had completed a total of

ten modules of treatment, including the “preventative relapse module.” Id. This Court

acknowledged that the General Assembly has recognized “‘some sex offenders cannot or

will not respond to treatment,’” and “‘it did not intend to imply that all sex offenders can

be successful in treatment’” by enacting the Tennessee Standardized Treatment Program

for Sex Offenders. Id. at *8; citing Tenn. Code Ann. § 39-13-702(b). This Court held

that due to Marshall’s completion of all objective standards of the treatment program,

while perhaps not cured, he completed treatment and, therefore, fulfilled the condition of

his probation requiring it. Id. at *9.

This Court has subsequently analyzed and distinguished William A. Marshall on

multiple occasions. For example, in State v. Joe Shelton Berry, No. M2004-03052-CCA-

R3-CD, 2005 WL 2438390 (Tenn. Crim. App. Sept. 27, 2005), we affirmed the trial

court’s revocation of probation after Berry, who pled no contest to rape, was discharged

from the mandated sex offender treatment class due to ongoing deceptive activity that

prevented him from being assessed for future risk and completing the program. Id. at *3.

The treatment provider testified at the revocation hearing that during group therapy

sessions, Berry would “‘almost [tell] the truth but then refuse to’” and “vaguely

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acknowledge his criminal actions but later deny them,” so he was discharged for not fully

participating and holding back the rest of the group. Id. at *1-2. Berry “refused to be

honest and try to work out his problems,” so the treatment provider refused to allow him

back into the program. Id. at *3. This Court, relying on the treatment provider’s

testimony and the trial court’s accreditation of that testimony, concluded the record

contained sufficient evidence to support the trial court’s finding that Berry did not meet

the objective standards of treatment. Id. When doing so, this Court factually

distinguished the case from William A. Marshall because, despite attending every session,

Berry’s “lack of candor, lackadaisical attitude, and inadequate participation” prevented

him from fulfilling the objective standards of treatment. Id.

In State v. Jackie Lee Holliman, No. M2005-02139-CCA-R3-CD, 2007 WL

316406 (Tenn. Crim. App. Sept. 19, 2006), we again considered whether the trial court

properly found Holliman violated his probation where he was discharged from sex

offender treatment due to his inability to progress out of the initial stage of treatment after

one and a half years of therapy. Id. at *3-4. At the revocation hearing, the treatment

provider offered testimony regarding Holliman’s dishonesty during group therapy and

disparaging comments made about his victim, both of which prevented him from

progressing to the “victim empathy” stage of treatment. Id. This Court found that unlike

the defendant in William A. Marshall, who had completed all ten modules of treatment

before his treatment provider determined he could not be discharged because he had not

been cured, the record lacked evidence Holliman had completed any objective portion of

his treatment program. Id. at *9. Relying on Joe Shelton Berry, this Court additionally

noted “he was dismissed from the treatment program for cause, and the record supports

the trial court’s reliance upon the defendant’s blameworthy failure at treatment as a basis

for revocation.” Id. Accordingly, we held the record supported the trial court’s finding

Holliman did not comply with the court-ordered condition that he receive sex offender

treatment. Id.

Later, in State v. Reams, this Court considered the revocation of Reams’ probation

for driving on a suspended license and being discharged from sex offender treatment due

to dishonesty with his treatment provider. Reams, 265 S.W.3d at 428. After pleading

guilty to two counts of attempted aggravated sexual battery and one count of sexual

battery, Reams received an effective sentence of eight years of probation, and the trial

court ordered sex offender treatment as a condition of probation. Id. at 425. Reams’ sex

offender treatment provider placed him in level two group therapy following his initial

assessment. Id. One of the goals of treatment required Reams to “admit to 100 percent

of the elements of the offenses described by the victim.” Id. at 429. Due to his

dishonesty regarding his contact with the victim, the treatment provider felt Reams “had

not advanced in meeting the treatment program’s goals” and demoted him to level one

therapy. Id. at 428. Reams did not progress as quickly as expected after demotion. Id.

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After giving information during a polygraph examination that conflicted with information

given during group therapy and being unable to provide an explanation for the conflict,

the treatment provider terminated Reams from the program. Id. at 429. Following

service of a revocation warrant and a hearing, the trial court revoked his probation and

ordered him to serve his sentence in confinement. Id. at 430.

One of the issues considered by this Court on appeal was again whether the trial

court erred in revoking Reams’ probation because he had complied with all objective

standards of sex offender treatment. Id. at 432. Reams argued William A. Marshall

controlled, and the State argued Joe Shelton Berry applied. Id. at 432-33. With respect

to Reams’ compliance with the treatment program, we noted he “attended his treatment

classes; participated as far as turning in a homework assignment and confronting another

defendant, who also attended treatment; and paid for treatment, although he was behind

on payments.” Id. at 433. However, like the defendant in Joe Shelton Berry, Reams had

also been demoted because his dishonesty was holding back the group. Id. Accrediting

the testimony of the treatment provider who opined Reams could not satisfy the first step

of treatment due to his repeated dishonesty, we held the trial court did not abuse its

discretion when finding the defendant violated the terms of his probation by getting

discharged from sex offender treatment due to his own “‘blameworthy failures at

treatment.’” Id. at 432-433 (quoting Jackie Lee Holliman, 2007 WL 316406).

In the present matter, our review of the record reveals that like the defendants in

Joe Shelton Berry, Jackie Lee Holliman, and Reams, the defendant has not fulfilled the

objective standards of treatment. At the revocation hearing, Mr. Welch testified that the

defendant’s treatment goals included admission to one-hundred percent of the elements

of the offense, completion of a written statement of responsibility describing the elements

of his crime, completion of a sexual autobiography to be verified by polygraph

examination, and completion of a sexual history. Unlike the defendant in William A.

Marshall, who completed all ten modules of treatment prior to being discharged based on

his inability to be cured, Mr. Welch discharged the defendant prior to meeting a single

goal of treatment. This discharge did not occur due to a subjective belief the defendant

could not be cured. Rather, Mr. Welch discharged the defendant because he refused to

admit to or discuss the State’s charges against him, so he could not progress in treatment.

Like attendance and payment of treatment fees, the admission of guilt, completion

of a written statement of responsibility, completion of a sexual autobiography, and

completion of a sexual history were also objective requirements of the defendant’s

treatment. See State v. Edith Mae Gillman, No. M2005-01863-CCA-R3-CD, 2006 WL

2960598, at *7 (Tenn. Crim. App. Oct. 18, 2006) (noting that along with attendance and

participation, the admission of guilt is an objective measure of compliance with sex

offender treatment). Moreover, the trial court accredited Mr. Welch’s testimony that the

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defendant’s dishonesty impeded his ability to progress in treatment by relying on it when

revoking the defendant’s probation and deferred diversion, and this Court will not

reweigh evidence on appeal. The record contains substantial evidence to support the trial

court’s finding the defendant violated his probation when he was discharged from the

treatment program for failing to meet program goals. The defendant is not entitled to

relief on this issue.

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgment of the trial court

is affirmed.

____________________________________

J. ROSS DYER, JUDGE

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