STATE OF TENNESSEE v. RICHARD JOSEPH DURICK

                                                                                          10/13/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                August 18, 2020 Session

          STATE OF TENNESSEE v. RICHARD JOSEPH DURICK

                Appeal from the Circuit Court for Williamson County
                   No. II-CR180450 Deanna B. Johnson, Judge
                     ___________________________________

                           No. M2019-01155-CCA-R3-CD
                       ___________________________________


Pursuant to a plea agreement, Richard Joseph Durick (“Defendant”) pled guilty to one
count each of attempted aggravated sexual exploitation of a minor and attempted sexual
exploitation of a minor in exchange for an effective sentence of three years, with the
manner of service to be determined by the trial court. Following a sentencing hearing,
the trial court ordered Defendant to serve his sentence in confinement. On appeal,
Defendant contends that the trial court abused its discretion by imposing a sentence of
confinement, arguing that: (1) the trial court committed plain error in considering
polygraph results and reports based on polygraph results when sentencing Defendant; (2)
the trial court failed to consider Defendant’s presumption of eligibility for probation; (3)
the trial court failed to consider all of the factors under Tennessee Code Annotated
section 40-35-103(1)(A)-(C); and (4) the trial court inappropriately considered factors
used to determine length of sentence when determining the manner of service of his
sentence. Defendant further contends that the trial court erred by denying his
subsequently filed motion for a reduction of sentence pursuant to Rule 35 of the
Tennessee Rules of Criminal Procedure. Upon review, we affirm the judgments of the
trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

Rob McKinney, Nashville, Tennessee, for the appellant, Richard Joseph Durick.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Kim R. Helper, District Attorney General; and Mary
Katharine Evins, Assistant District Attorney General, for the appellee, State of
Tennessee.
                                       OPINION

                        I. Factual and Procedural Background

       In July 2018, the Williamson County Grand Jury issued an indictment charging
Defendant with aggravated sexual exploitation of a minor, in counts 1, 3, and 4, and
exploitation of a minor, in count 2. On April 8, 2019, Defendant pled guilty, as a Range I
standard offender, to attempted aggravated sexual exploitation of a minor, a Class D
felony, in count 1. In count 2, Defendant pled guilty, as a Range II multiple offender, to
attempted sexual exploitation of a minor, a Class E felony.

      At the guilty plea submission hearing, the State summarized the factual basis for
Defendant’s guilty pleas, as follows:

             Regarding the facts, the summary would be had this matter
      proceeded to trial, on March 16[], 2015, Special Agent Kenny Blackburn
      with the Tennessee Bureau of Investigation was conducting an on-line
      investigation in the BitTorrent network for offenders sharing child
      pornography. He came upon an IP address that was associated with a
      certain hashtag that was recognized as child pornography. The computer
      running the investigative BitTorrent software directly connected to that IP
      address where after [twenty-three] files were downloaded . . . showing that
      that IP address had made them available for sharing. That IP address was
      the sole candidate for the download and each file was downloaded directly
      from that IP address.

             Special Agent Blackburn then subpoenaed AT&T, the internet
      service provider for that IP address. And he discovered that the name on
      the account was [Defendant], located on . . . Chester Stephens Drive,
      Franklin, Williamson County, Tennessee. With that information Agent
      Blackburn attempted to obtain a search warrant from Judge Martin. Judge
      Martin did review the application and grant the search warrant.

             On April 30[] 2015, agents executed that search warrant on that
      above[-]mentioned address where several different devices were retrieved
      from [Defendant’s] residence.      Special Agent Nicholas Christians
      performed the forensic exam, wherefore evidence of child pornography was
      located. He also discovered key words consistent with child sexual abuse
      cases in the internet history. Using the -- under the user account [for
      Defendant] for certain devices.

                                          -2-
       As summarized in Defendant’s presentence report, the TBI investigative report
indicated that the twenty-three files attributed to Defendant included a file showing a two
to four-year-old nude child with an adult male penis in her mouth and another file
depicting two boys, aged eight to twelve, with one boy anally penetrating the other boy.
The report further indicated that Defendant typed internet search terms on his computer
that were “consistent with an experienced offender.”

       Pursuant to a plea agreement, Defendant received concurrent sentences of three
years with a thirty percent release eligibility on count 1 and three years with a thirty-five
percent release eligibility on count 2.1 The manner of service of the effective three-year
sentence was to be determined by the trial court.

                                                 Sentencing

        At a sentencing hearing, the State offered, as its proof, Defendant’s pre-sentence
report, including the report on the Psycho-Sexual Risk Assessment (“the psycho-sexual
report”) prepared by Dr. Donna Moore.2 When the trial court asked if there was an
objection to the State’s exhibit, defense counsel responded, “No objection, Judge.” As
part of the defense proof, Defendant offered as exhibits a sentencing memorandum,
letters from Defendant’s wife and daughters, a summary of Defendant’s medical reports,
and a 2015 letter from defense counsel to the prosecutor indicating that Defendant was
willing to enter plea negotiations and accept responsibility for the offenses. Defendant
also made an allocution statement in which he said that he was “ashamed and deeply
sorry for . . . all the pain and suffering [he had] caused to [his] family and to everyone [he
had] hurt through [his] selfish addiction to pornography” and stated that he was “getting
treatment[.]” Defendant explained that he viewed pornography, “both out of habit and as
a means of managing stress.” He said that he became addicted and eventually began
viewing child pornography. Defendant further said:

               Although I cannot remember any instance of being sexually abused,
        there were markers that suggested that something was wrong.

                  ....

        1
            Based on the plea, the State entered a nolle prosequi on counts 3 and 4.
        2
         By statute, a convicted sex offender who is seeking probation must submit to an evaluation for
the purposes of identifying and assessing the offender’s risk of re-offending and potential for treatment
and to establish a treatment plan and procedures for monitoring behavior. Tenn. Code Ann. § 39-13-
705(a) (2019). The evaluation report “shall be included as part of the presentence report and shall be
considered by the court in determining the sentencing issues stated in this section.” Tenn. Code Ann. §
39-13-705(b) (2019).
                                                     -3-
             A close boyhood friend’s father turned out to be a pedophile and
      later took his own life. I had spent a lot of time at their home. My
      childhood friend and I were accosted by older boys. He was raped, I -- I
      got away. That’s what I remember.

       Regarding his professional life, Defendant stated that he graduated from the
University of Pittsburg in 1975 and then joined the Navy. He said that he was trained as
a Navy pilot and eventually became a Navy flight instructor. Defendant stated that, after
leaving the Navy, he attended dental school, graduating from the University of Texas in
1986. He then became a staff dentist for the Department of Veterans Affairs and worked
in that position for twenty-five years. Defendant stated that, if he went to prison, he
would lose over half of his retirement income and “substantial health insurance benefits.”
He said that he had been the family’s primary wage earner and that his wife could not
meet their financial obligations on her income alone. He requested that he be sentenced
to probation, explaining that he had demonstrated he was not a flight risk, that he had not
re-offended, and that he had “abided by all of the requirements put forth” and taken full
responsibility for his actions.

      Regarding the manner of service of Defendant’s sentence, defense counsel argued:

            We are asking for probation solely because the law allows it. Under
      40-35-103, there are three factors when the Court must consider . . . when
      the Court considers confinement:

             (1) A long history of criminal conduct. In this case, Judge, there is
      no prior criminal conviction that [Defendant] has. Now, the Court can
      consider uncharged criminal conduct of the child pornography as criminal
      conduct. However, . . . [Defendant] as part of his psycho-sexual, took a
      polygraph. Dr. Moore made certain findings and he is a good candidate for
      probation.

             ....

             [I]n this case, we have no evidence, from any report, that he shared
      pornography; he created pornography; he manufactured pornography; or
      distributed pornography, or even -- or sexual exploitation of a minor. He
      was a viewer. He’s had a polygraph that’s also mentioned in the report.

       In response, the State argued that confinement was necessary to protect society
and restrain Defendant, based on his long history of criminal conduct. The State argued
that Defendant had a long history of viewing child pornography based on Defendant’s
                                           -4-
admissions to Dr. Moore contained in the psycho-sexual report. Defendant admitted that
he had first possessed images of child pornography fifteen years prior, explaining that
this “included images of underage females and males engaged in sexual acts or nude[,]”
that Defendant “recalled seeing children as young as two years old[,]” and that Defendant
“admitted that he fantasized of having sex with underage females.”

       The State asserted that Defendant “failed” a polygraph test conducted as part of
the psycho-sexual evaluation. The State further argued that Dr. Moore found Defendant
was “at risk for engaging in sexual misconduct and his risk is higher for obtaining illegal
images.” The State also noted that, while the case was pending, Defendant admitted that
he purchased adult pornography “as a method of coping.” The State argued that
Defendant’s claim that he had an addiction and used child pornography to manage stress
indicated that Defendant was mitigating the offenses and was not accepting full
responsibility for his crimes.3

        At the conclusion of the hearing, the trial court stated:

               In determining the appropriate sentence for [these] offense[s], the
        Court has considered the evidence presented here today at this sentencing
        hearing; as well as the pre-sentence report; the sentence -- sentencing
        principals embodied in Tennessee Code Annotated [sections] 40-35-101
        and all of 40-35-102, 103 and all of that chapter; and any arguments made
        as to alternative sentencing; the nature and characteristics of the criminal
        conduct involved; any statistical information provided by the
        Administrative Office of the Courts; any enhancing or mitigating factors
        offered by the parties . . . ; the allocution made by [D]efendant; and
        Defendant’s potential for rehabilitation or treatment.

The trial court further stated that it read and considered the letters submitted by
Defendant’s wife and daughters and the letter from defense counsel to the prosecutor
indicating Defendant’s acceptance of responsibility.

        The trial court continued:

               In considering [section] 40-35-102, the Court has gone through all of
        those factors. And the sentencing considerations in [section] 40-35-103,

        3
          During the State’s argument, defense counsel objected to the prosecutor’s argument about
Defendant’s use of the BitTorrent network and its ability to disseminate images, contending that
references to it in the presentence report constituted hearsay because the State called no witnesses to
testify. The trial court noted that Defendant failed to object to introduction of the presentence report,
thereby permitting reliance on the presentence report’s reference to BitTorrent.
                                                  -5-
      the Court has considered those factors. As pointed out by [defense
      counsel], sentencing involvement -- involving confinement should be based
      on the following considerations, and it lists (a),(b) and (c).

             As far mitigating factors, [section] 40-35-113, none have been
      proposed but the Court does find that subsection (13), which is sort of the
      catch-all, any other factor consistent with the purposes of this chapter. That
      applies in that there was somewhat of an acceptance of responsibility early
      on. I don’t find it to be a total and complete acceptance of responsibility
      given the looking at the porn but certainly the Court gives [Defendant]
      credit under subsection (13).

       The trial court stated that it had studied the presentence report, as well as the
report on the psycho-sexual evaluation, and that it relied heavily on the reports. Reading
from the psycho-sexual report, the trial court said:

             [Defendant] was looking for child porn. [He] was looking at boys
      and girls. . . . [He] was going to sites looking for sex, oral sex, preferred
      females, age range of pre-teen children, pre-teen girls with adult males
      having oral sex, pre-teen girls with intercourse with adult males, but not as
      much; looking at images of boys with adult men and boys.

       The trial court noted that Defendant told Dr. Moore that, at one point, his wife
found adult pornography and wanted to divorce him. Defendant stated that he went to
group therapy and individual therapy, and after that, he “didn’t restrain [himself]” and
began looking at child pornography. Reading from the psycho-sexual report, the trial
court noted that Defendant was found to be “deceptive/untruthful on the [polygraph]
examination with unresolved issues/significant reactions to sexual contact with minor
females and arranging to meet known minors for sexual purposes.” The trial court noted
that Defendant admitted that he had “masturbated to child pornography when viewing it,
which he estimated to be about . . . two to three times weekly.” Additionally, Defendant
admitted that he had fantasized about having sex with the underage females on the videos
he had viewed.

       The trial court recounted that Defendant admitted to viewing “hundreds of images
of children in sexually exploited images, mostly females, ages zero to 18 by themselves
or exposing their genitals with adults; in sexual contact with adults; and being penetrated
by adults.” Regarding the conclusions reached in the psycho-sexual report, the trial court
noted that Dr. Moore found Defendant had “sexual preoccupation issues and may derive
some identity from sexual acting out and using sex to soothe” himself, which Dr. Moore
described as “risk relevant for him.”          Dr. Moore also found that Defendant
                                           -6-
“demonstrate[d] significant objectification, as well as an attitude that his needs and wants
are more important than other people.” Dr. Moore determined that Defendant was at risk
for engaging in sexual misconduct, that his risk is higher for obtaining illegal child
images, and that “[h]is dynamic predictors elevate his risk somewhat[.]”

       Based on these considerations, the trial court found that confinement was
“necessary to protect society by restraining a defendant who has a long history of
criminal conduct[,]” noting that Defendant’s criminal conduct went back fifteen years,
and it ordered Defendant to serve his three-year sentence in the Tennessee Department of
Correction. The trial court entered the judgments of conviction on June 18, 2019, and
Defendant filed a timely notice of appeal with this court on July 1, 2019.

                                      Rule 35 motion

       On October 1, 2019, Defendant filed a timely motion under Rule 35 of the
Tennessee Rules of Criminal Procedure, seeking a reduction of his sentence. Defendant
asserted that the State’s argument at the sentencing hearing was “focused on the results of
the polygraph report[,]” which he argued was inadmissible evidence. Defendant further
asserted that he had undergone shoulder surgery since the sentencing hearing; that he had
continued to attend sex offender treatment; and that “[d]ue to [Defendant’s] deteriorating
medical condition” he was an ideal candidate for probation.

       At a hearing on the Rule 35 motion, defense counsel argued that the trial court
should modify Defendant’s sentence to probation or community corrections. As grounds,
he asserted that the report on the psycho-sexual evaluation contained improper evidence
of Defendant’s polygraph exam that should not have been admitted at sentencing.
Additionally, counsel noted that Defendant had continued to attend treatment with Dr.
Moore. Defense counsel stated, “[Defendant has] also completed another polygraph to
make sure that he is towing the line. He has passed that as well.” Further, Defendant had
recently had shoulder surgery and was “still in a sling and cast[,]” and his daughter, who
was studying in Bulgaria, had been hospitalized after having a seizure.

        The State responded that psycho-sexual evaluation must include “an objective
measure” to be a valid assessment and that the objective measure that Dr. Moore used
was a polygraph. The State noted that, due to the nature of Defendant’s convictions, the
trial court was required by statute to consider the psycho-sexual report before sentencing
Defendant. The State argued that Defendant had presented only limited proof regarding
his shoulder surgery and no proof that he was unable to be incarcerated or would be a
burden on the prison due to the surgery. Finally, the State argued that Defendant’s
continued therapy with Dr. Moore would not be sufficient to require that Defendant’s

                                           -7-
sentence be reduced in the interests of justice. The trial court took the matter under
advisement at the conclusion of the hearing.

       On February 3, 2020, the trial court filed an order denying Defendant’s Rule 35
motion. In the order, the trial court found that Defendant was specifically asked whether
there was an objection to the introduction of the psycho-sexual report and that Defendant
stated he had no objection. The trial court explained that it had re-examined the facts of
the case and the applicable sentencing factors. The court also reviewed the transcript of
the sentencing hearing, the papers filed by the parties, and the arguments of counsel.
Based on its review, the trial court found that it would not be in the interests of justice to
grant the Rule 35 motion. Defendant filed a timely notice of appeal on February 18,
2020, and on February 20, 2020, this court consolidated Defendant’s appeals.

                                        II. Analysis

       On appeal, Defendant asserts that the trial court abused its discretion by imposing
a sentence of confinement. Defendant further contends that the trial court erred by
denying his motion for a reduction of sentence pursuant to Rule 35 of the Tennessee
Rules of Criminal Procedure and argues that the trial court should have suspended his
sentence to probation or community corrections.

                                A. Sentence of confinement

       In determining the proper sentence, a trial court must consider: (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 mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210 (2019); State v. Taylor, 

63 S.W.3d 400

, 411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or
lack of potential for rehabilitation or treatment of the defendant in determining the
sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103
(2019). To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2019); State v. Bise, 

380 S.W.3d 682

, 706 (Tenn. 2012).

      When the record clearly establishes that the trial court imposed a sentence within
the appropriate range after a “proper application of the purposes and principles of our
                                            -8-
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. 

Bise, 380 S.W.3d at 707

. The
party challenging the sentence on appeal bears the burden of establishing that the
sentence was improper. Tenn. Code Ann. § 40-35-401 (2019), Sentencing Comm’n
Cmts. The abuse of discretion with a presumption of reasonableness standard of review
set by our supreme court in Bise also applies to a trial court’s decision to grant or deny
probation. State v. Caudle, 

388 S.W.3d 273

, 278-79 (Tenn. 2012) (citing Bise, 

380 S.W. 3d

at 708).

        Tennessee Code Annotated section 40-35-303 states that “[a] defendant shall be
eligible for probation under this chapter if the sentence actually imposed upon the
defendant is ten (10) years or less; however, no defendant shall be eligible for probation
under this chapter if convicted of a violation of § 39-13-304, § 39-13-402, § 39-13-504, §
39-13-532, § 39-15-402, § 39-17-417(b) or (i), § 39-17-1003, § 39-17-1004 or § 39-17-
1005.” Tenn. Code Ann. § 40-35-303(a) (2019). Under the revised Tennessee
sentencing statutes, however, a defendant is no longer presumed to be a favorable
candidate for alternative sentencing. State v. Carter, 

254 S.W.3d 335

, 347 (Tenn. 2008)
(citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory” sentencing guidelines
provide that a defendant “who is an especially mitigated or standard offender convicted
of a Class C, D or E felony, should be considered as a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary[.]” Tenn. Code Ann. § 40-
35-102(6)(A) (2019).

      Under Tennessee Code Annotated section 40-35-103, the trial court should look to
the following considerations to determine whether a sentence of confinement is
appropriate:

             (A) Confinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

              (B) Confinement 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) Measures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2019). In addition, the principles of sentencing
provide that the sentence should be no greater than that deserved for the offense
committed and should be the least severe measure necessary to achieve the purposes for
which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4) (2019).
                                           -9-
       A trial court should determine whether an eligible defendant is a favorable
candidate for an alternative sentence that does not involve confinement before sentencing
a defendant to a sentence involving confinement. State v. James Demoss, No. M2019-
01583-CCA-R3-CD, 

2020 WL 4199987

, at *7 (Tenn. Crim. App. July 22, 2020) (citing
State v. Tammy Marie Harbison, No. M2015-01059-CCA-R3-CD, 

2016 WL 613907

, at
*6 (Tenn. Crim. App. Feb. 12, 2016)). Even if the trial court determines that a defendant
is not a favorable candidate for an alternative sentence, the court can still impose an
alternative sentence on an eligible defendant if the defendant proves that he is suitable for
probation and that probation “will ‘subserve the ends of justice and the best interest of
both the public and the defendant.’” 

Carter, 254 S.W.3d at 347

(quoting State v.
Housewright, 

982 S.W.2d 354

, 357 (Tenn. Crim. App. 1997)).

       There is no bright line rule for determining when a defendant should be granted
probation. State v. Bingham, 

910 S.W.2d 448

, 456 (Tenn. Crim. App. 1995), overruled
on other grounds by State v. Hooper, 

29 S.W.3d 1

(Tenn. 2000). Every sentencing
decision necessarily requires a case-by-case analysis.

Id. A significant factor

is the
likelihood of reoffending, a “fundamental consideration in determining whether to grant
or deny probation.” State v. Trent, 

533 S.W.3d 282

, 293 (Tenn. 2017) (citations omitted).
Other factors to be considered include “the circumstances surrounding the offense, the
defendant’s criminal record, the defendant’s social history and present condition, the
need for deterrence, and the best interest of the defendant and the public.” State v.
Goode, 

956 S.W.2d 521

, 527 (Tenn. Crim. App. 1997).

       Here, Defendant was eligible for probation because the actual sentence imposed
for each conviction was ten years or less and because the offenses for which Defendant
was sentenced are not specifically excluded by Tennessee Code Annotated section 40-35-
303(a). Defendant did not qualify for favorable status consideration, however, because
he pled guilty as a Range II multiple offender on count 2.4 See State v. Homer L. Evans,
No. E2000-00069-CCA-R3-CD, 

2001 WL 274069

, at *3-4 (Tenn. Crim. App. Mar. 20,
2001) (upholding denial of full probation and noting that “by agreeing to be sentenced as
a Range II offender, the defendant agreed to classification as a multiple offender for all
purposes, including alternative sentencing”), no perm. app. filed.

        Based on the findings announced at the conclusion of the sentencing hearing, the
trial court determined that Defendant was not suitable for probation based on Tennessee
Code Annotated section 40-35-103(1)(A), finding that because Defendant had a long
history of criminal conduct, confinement was necessary to protect society from

        4
         We note that Defendant pled guilty as a Range I standard offender in count 1 and, thus, would
have qualified for favorable candidate consideration as to that count; however, count 1 was ordered to run
concurrently with count 2.
                                                 - 10 -
Defendant. The trial court’s determination that Defendant had a long history of criminal
conduct was supported by the record because the proof established that Defendant’s
history of possessing and disseminating child pornography dated back fifteen years.
Defendant admitted to Dr. Moore during the psycho-sexual evaluation that he had first
viewed images of child pornography about fifteen years prior and that the images showed
underage females and males engaged in sexual acts or nude. Defendant said that he
preferred watching pre-teen females and that he usually masturbated to child
pornography when viewing it, which he estimated to be about two to three times weekly.
Moreover, as noted by the State, a trial court may look behind a plea agreement and
consider the true nature of the offenses committed. See State v. Hollingsworth, 

647 S.W.2d 937

, 939 (Tenn. 1983). Although Defendant pled guilty to attempted aggravated
sexual exploitation of a minor and attempted sexual exploitation of a minor, the
presentence report established that Defendant had an extensive collection of child
pornography and that he participated in file sharing services like BitTorrent. See e.g.,
United States v. Cates, 

897 F.3d 349

, 359 (1st Cir. 2018) (concluding that a defendant’s
use of BitTorrent for child pornography circumstantially established that he was aware he
was providing child pornography for others, given that the program specifically provided
for sharing of material between users). As a factual basis for his plea, the State recounted
that, not only did Defendant possess child pornography but that he made them available
for sharing online. Defendant clearly engaged in a deliberate pattern of criminal conduct,
as evidenced by his use of a “drive scrubber” on his computer.

       In addition to Defendant’s lengthy history of viewing child pornography, the trial
court considered and relied heavily on Dr. Moore’s risk assessment in the psycho-sexual
report in concluding that Defendant was not a good candidate for probation. Regarding
the conclusions reached in the psycho-sexual report, the trial court noted that Dr. Moore
found Defendant had “sexual preoccupation issues” and “derive[d] some identity from
sexual acting out and using sex to soothe” himself, which Dr. Moore described as “risk
relevant for him.” Dr. Moore also found that Defendant “demonstrate[d] significant
objectification, as well as an attitude that his needs and wants are more important than
other people.” Dr. Moore determined that Defendant was at risk for engaging in sexual
misconduct, that his risk is higher for obtaining illegal child images, and that “[h]is
dynamic predictors elevate his risk somewhat[.]” Based on a review of the psycho-sexual
report, the record supports a conclusion that Defendant was at an elevated risk for
reoffending and, thus, a poor prospect for probation. See 

Trent, 533 S.W.3d at 293

.

                                   1. Polygraph results

      Defendant argues that that the trial court committed plain error by considering the
polygraph results and “reports based on the polygraph results” when sentencing
Defendant. As recognized by Defendant, however, he failed to object to the introduction
                                           - 11 -
of the psycho-sexual report, which contained the polygraph results. By failing to raise a
contemporaneous objection, Defendant waived our consideration of this issue. State v.
Gilley, 

297 S.W.3d 739

, 762 (Tenn. Crim. App. 2008) (“The failure to make a
contemporaneous objection constitutes waiver of the issue on appeal.”); see also Tenn. R.
App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a
party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”)

       “[W]hen necessary to do substantial justice,” this court may “consider an error that
has affected the substantial rights of a party” even if the issue was waived. Tenn. R. App.
P. 36(b). Such issues are reviewed under plain error analysis. State v. Hatcher, 

310 S.W.3d 788

, 808 (Tenn. 2010). Plain error relief is “limited to errors that had an unfair
prejudicial impact which undermined the fundamental fairness of the trial.” State v.
Adkisson, 

899 S.W.2d 626

, 642 (Tenn. Crim. App. 1994). In order to be granted relief
under plain error, five criteria must be met: (1) the record must clearly establish what
occurred in the trial court; (2) a clear and unequivocal rule of law must have been
breached; (3) a substantial right of the accused must have been adversely affected; (4) the
accused did not waive the issue for tactical reasons; and (5) consideration of the error is
“necessary to do substantial justice.” 

Adkisson, 899 S.W.2d at 640-41

; see also State v.
Smith, 

24 S.W.3d 274

, 282-83 (Tenn. 2000) (Tennessee Supreme Court formally
adopting the Adkisson standard for plain error relief). When it is clear from the record
that at least one of the factors cannot be established, this court need not consider the
remaining factors. 

Smith, 24 S.W.3d at 283

. The defendant bears the burden of
persuasion to show that he is entitled to plain error relief. State v. Bledsoe, 

226 S.W.3d 349

, 355 (Tenn. 2007).

       Here, we are not persuaded that Defendant is entitled to plain error relief because
Defendant cannot show that he did not waive the issue for tactical reasons. At the
sentencing hearing, defense counsel acknowledged that he urged Defendant to participate
in the psycho-sexual evaluation, and counsel initially tried to use Defendant’s submission
to the polygraph to Defendant’s advantage at sentencing. Although defense counsel
voiced a complaint about use of the polygraph evidence at the Rule 35 hearing, he then
suggested that the trial court consider a more recent polygraph, which counsel asserted
would show that Defendant was “towing the line. He has passed that as well.” We
conclude that Defendant’s attempt to use the polygraph results when they favored him
precludes plain error relief. Moreover, a review of the trial court’s findings shows that its
consideration focused on admissions made by Defendant both before and after the
polygraph examination, rather than the fact that Defendant was found to be deceptive on
some questions. Our supreme court has stated that, if a statement made during the course
of a polygraph examination “is voluntary and consistent with other applicable
constitutional and evidentiary rules, the statement can be introduced into evidence,” State
                                           - 12 -
v. Damron, 

151 S.W.3d 510

, 517 (Tenn. 2004), and there is no evidence that Defendant’s
admissions to Dr. Moore were not voluntary. Accordingly, Defendant has not shown that
consideration of the error is necessary to do substantial justice or that it was of “such a
great magnitude” that it affected the propriety of his sentence. 

Adkisson, 899 S.W.2d at 642

. Defendant is not entitled to relief.

                          2. Presumption of probation eligibility

        Defendant also contends that that the trial court failed to consider his presumption
of eligibility for probation. However, the trial court clearly considered that Defendant
was eligible for probation as the sentence imposed for each conviction was ten years or
less and the offenses for which Defendant was sentenced were not excluded by
Tennessee Code Annotated section 40-35-303(a). In fact, the whole point of the
sentencing hearing was for the trial court to determine whether Defendant would serve
his sentence on probation or some other form of alternative sentencing, or in
confinement. Because Defendant was not considered a favorable candidate for an
alternative sentence, as explained above, it was Defendant’s burden to prove that he was
suitable for probation and that probation would “subserve the ends of justice and the best
interest of both the public and the defendant.” 

Housewright, 982 S.W.2d at 357

. Defense
counsel argued at length that Defendant should be placed on probation, and the trial court
stated that it had considered the arguments of counsel before imposing sentence. The
trial court ultimately determined that Defendant was not suitable for probation based on
Tennessee Code Annotated section 40-35-103(1)(A). This claim is without merit.

        3. Factors under Tennessee Code Annotated section 40-35-103(1)(A)-(C)

        Defendant also argues that the trial court failed to consider all factors under
Tennessee Code Annotated section 40-35-103(1)(A)-(C).                However, during the
sentencing hearing, the trial court specifically stated, “And the sentencing considerations
in [section] 40-35-103, the Court has considered those factors. As pointed out by
[defense counsel], sentencing involvement -- involving confinement should be based on
the following considerations, and it lists (a),(b) and (c).” As previously explained, the
trial court made explicit findings about Defendant’s history of criminal conduct under
Tennessee Code Annotated section 40-35-103(1)(A) before imposing a sentence of
confinement. Defendant has pointed to no authority for his apparent claim that the trial
court was required to make explicit findings under section 40-35-103(1)(B) and (1)(C).
In any event, Bise does not require that the trial court’s reasoning be “particularly lengthy
or detailed,” so long as “the statutory purposes and principles, along with any applicable
enhancement and mitigating factors, have been properly addressed.” 

Bise, 380 S.W.3d at 706

. This issue is without merit.

                                           - 13 -
                         4. Consideration of inappropriate factors

       Finally, Defendant contends that the trial court inappropriately considered
Tennessee Code Annotated sections 40-35-103(2) (that a sentence should be no greater
than that deserved) and -103(5) (that a defendant’s potential for rehabilitation should be
considered) when determining the manner of service of his sentence. However, as noted
by the State, Tennessee Code Annotated section 40-35-103 specifically provides that
these are general principles of sentencing, which are applicable to all aspects of
sentencing. See Tenn. Code Ann. § 40-35-103, Sentencing Comm’n Cmts. This issue is
likewise without merit.

      Based on the foregoing, we conclude that the trial court acted within its discretion
when it denied probation and imposed a sentence of incarceration.

                                    B. Rule 35 motion

      Defendant also contends that the trial court erred by denying his Rule 35 motion.
Rule 35 of the Tennessee Rules of Criminal Procedure provides, as follows:

       (a) Timing of Motion. The trial court may reduce a sentence upon motion
       filed within 120 days after the date the sentence is imposed or probation is
       revoked. No extensions shall be allowed on the time limitation. No other
       actions toll the running of this time limitation.

       (b) Limits of Sentence Modification. The court may reduce a sentence only
       to one the court could have originally imposed.

       (c) Hearing Unnecessary. The trial court may deny a motion for reduction
       of sentence under this rule without a hearing.

       (d) Appeal. The defendant may appeal the denial of a motion for reduction
       of sentence but shall not be entitled to release on bond unless already under
       bond. If the court modifies the sentence, the state may appeal as otherwise
       provided by law.

Tenn. R. Crim. P. 35. According to the Advisory Commission Comments to Rule 35,
“[t]he intent of this rule is to allow modification only in circumstances where an
alteration of the sentence may be proper in the interests of justice.” Tenn. R. Crim. P. 35,
Advisory Comm’n Cmts.



                                           - 14 -
        The denial of a motion to modify sentence pursuant to Rule 35 of the Tennessee
Rules of Criminal Procedure is subject to an abuse of discretion standard of review. State
v. Patterson, 

564 S.W.3d 423

, 429 (Tenn. 2018) (citing State v. Irick, 

861 S.W.2d 375

,
376 (Tenn. Crim. App. 1993)). “An abuse of discretion occurs when the trial court
applies incorrect legal standards, reaches an illogical conclusion, bases its decision on a
clearly erroneous assessment of the evidence, or employs reasoning that causes an
injustice to the complaining party.” West v. Schofield, 

460 S.W.3d 113

, 120 (Tenn. 2015)
(citing State v. Banks, 

271 S.W.3d 90

, 116 (Tenn. 2008)). Where, as in this case, a
defendant pleads guilty without an agreement as to sentencing pursuant to Rule
11(c)(1)(B) and later files a Rule 35 motion to reduce the sentence that the trial court
imposed for the plea offense, the defendant is not required to make any particular
showing in support of the motion. 

Patterson, 564 S.W.3d at 433

. “In these
circumstances, Rule 35 functions simply as a second opportunity for a defendant to make
a plea for leniency.”

Id. at 434.

The trial court is afforded broad discretion in
determining whether reduction of the initial sentence is appropriate in the interest of
justice.

Id. at 433-34.

       It is clear from the record that the trial court viewed Defendant’s Rule 35 motion
as a request that it reconsider its sentencing decision and modify Defendant’s sentence to
probation or community corrections. The trial court explained that it had re-examined the
facts of the case and the applicable sentencing factors. The court also reviewed the
transcript of the sentencing hearing, the papers filed by the parties, and the arguments of
counsel. However, the trial court found that it would not be in the interests of justice to
grant the Rule 35 motion. Upon review, Defendant has failed to establish that the trial
court abused its discretion. See 

Schofield, 460 S.W.3d at 120

. Accordingly, Defendant is
not entitled to relief.

                                     III. Conclusion

      For these reasons, we affirm the judgments of the trial court.




                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




                                          - 15 -
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