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.

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.

....

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 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, 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 “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 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 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).

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