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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs April 10, 2007 STATE OF TENNESSEE v. FREDDIE McCULLOUGH
Appeal from the Criminal Court for Shelby County No. 05-01365 John P. Colton, Jr., Judge

No. W2006-01407-CCA-R3-CD - Filed August 20, 2007

The Appellant, Freddie McCullough, appeals the Shelby County Criminal Court's denial of his request for non-incarcerative alternative sentences. McCullough pled guilty to one count of statutory rape and one count of sexual battery, both Class E felonies, and, under the terms of the plea agreement, received one-year sentences for each conviction with the trial court determining the manner of service of the sentences. The agreement also allowed McCullough to seek judicial diversion. After a sentencing hearing, the trial court denied judicial diversion and ordered McCullough to serve concurrent terms of sixty days in the workhouse on each one-year sentence, followed by one year of probation. On appeal, McCullough argues that the trial court erred by denying judicial diversion or, in the alternative, total probation. After review, the judgment of the trial court is affirmed. Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed DAVID G. HAYES , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and ALAN E. GLENN , J., joined. C. Anne Tipton, Memphis, Tennessee, for the Appellant, Freddie McCullough. Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Muriel Conner, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION Factual Background On March 1, 2005, a Shelby County grand jury returned a two-count indictment charging the Appellant with statutory rape and sexual battery, which were alleged to have occurred between July 15, 2003, and September 17, 2003. On March 13, 2006, the Appellant, pursuant to the terms of a

plea agreement, entered a "best interest" guilty plea to both charges. The underlying facts, as recited at the guilty plea hearing and accepted by the trial court, are as follows: [The Appellant], approximately [fifty] years of age, had a relationship with the victim . . . who is approximately [fifteen] years of age, in the months of August to September[,] 2003. Both individuals went to church together and [the Appellant] was considered to be the victim's godfather. Approximately September the 7th . . . [the] Collierville police officers got a call from . . . the victim's mother . . . . She told Collierville police officers that her daughter . . . had informed her that she had been having a sexual relationship with [the Appellant] at least five times. Those five times involved sexual activity by the [Appellant] and [the victim] at his home several times, as well as [at] the Memphis airport. A couple of those times [the Appellant] picked the minor . . . up at her home in Mississippi, took her to Tennessee to have sex. [D]etectives had [the victim] call the [Appellant] to tell [him] that . . . she believed that she might be pregnant. At that time he made a statement of admission stating that the things that they did, [but he stated the victim could not be pregnant because] he did not ejaculate. .... [With regard to sexual battery, the Appellant] also gave a statement to police officers that while the victim was asleep in the back seat of his car, that he touched her breasts and she awoke and told the [Appellant] to stop and that time he stopped. The plea agreement provided that the Appellant would receive a one-year sentence, as a Range I offender, for each of the convictions. The agreement further provided that the trial court would determine the manner of service of the sentences and whether the sentences would run concurrently or consecutively. The agreement also specified that the Appellant could petition the court for judicial diversion. A sentencing hearing was held on May 31, 2006; however, the Appellant introduced no proof, relying solely upon the presentence report. Moreover, the presentence report reflects that the Appellant declined to provide a statement to the case officer. The State called the victim's mother, Celena Jones, who testified that the Appellant and his wife developed a close relationship with the victim through the church which they all attended in Memphis. The Appellant and his wife were both involved in the children's ministry and Sunday School program of the church. Mrs. Jones further testified that the Appellant and his wife told her that they "wanted to be a blessing to [the victim]" and invited the victim to spend time in the Appellant's home. Mrs. Jones did not suspect any misconduct on the Appellant's part until her pastor notified her that the victim disclosed that the Appellant had been having sexual relations with her.

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Mrs. Jones stated that the sexual abuse inflicted upon her daughter has had a traumatic impact in her life. For a period of time, the victim was "paranoid" that the Appellant would come to her school, and Mrs. Jones had to drive the victim to school every day and pick her up. Mrs. Jones also found it necessary to quit her job so she could take care of the victim. The victim is very uncomfortable "around people, particularly guys on any level," which has required counseling. Several years have passed since the abuse, and there are some days when "[the victim's] okay" and other days when "it's very much a part of her life." According to her mother, the victim had to deal with the fact that she was "played with, manipulated [and] deceived." The victim's abuse had also affected her siblings because it made "them feel uneasy around certain people." Mrs. Jones was opposed to the Appellant's request for diversion. She explained: "I'm against the diversion because I don't understand why it should be wiped off of his record. It will never be wiped out of [the victim's] mind. It's something she's always got to find a way to cope with." Mrs. Jones further testified and noted that the Appellant and his family were going to another church and that "there are other young people out here that can fall into the same situation that [the victim] did." The presentence report states that the Appellant is fifty-two years old and married. Information contained in the report also states that, in 1975, the Appellant joined the United States Air Force and was honorably discharged in 1983. He received an associate degree from Draughons Business College in 1986. Beginning in 1995, he worked as a "security office[r]" for FPIA, Inc. for over two years. Then, he worked as an investigator for the Shelby County Public Defender's Office from June, 1997 to October, 2003. No current employment was noted in the report. The Appellant has no prior adult criminal history. At the conclusion of the hearing, the Appellant's request for judicial diversion or, in the alternative, total probation was denied. Instead, the trial court imposed split confinement and ordered that the Appellant serve sixty days of each sentence in the workhouse, followed by one year of probation. The Appellant's sentences were ordered to run concurrently, and the trial court stayed the judgment pending the outcome of this appeal. The record on appeal also contains the following motions and supporting "exhibits" filed in this case by the Appellant at the trial level. On June 30, 2006, pursuant to Tenn. R. Crim. P. 35, the Appellant, through substituted counsel, filed a motion for "Modification or Reduction of Sentence." The Appellant requested a hearing and acknowledged that "previous counsel" had failed, in effect, to offer any evidence for judicial diversion at the May 31 sentencing hearing. On September 26, 2006, a second motion for modification or reduction of sentence was filed by the Appellant upon the same grounds.1 Accompanying his second motion was a statement of the Appellant, referred to as a "Sentencing Hearing Affidavit," and a letter from the Appellant's wife, both of which are directed to the attention of the trial judge. The Appellant asserts that information contained within

The record contains no ruling by the trial court on the Rule 35 motions, which were filed after notice of appeal of the trial court's sentencing decision was filed.

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the "affidavits" provides "the court insight into the [Appellant's] candidacy for alternative sentencing." Analysis The Appellant asserts that "the court abused its discretion when it denied the [Appellant] judicial diversion without considering all required factors and articulating its basis for the denial." In the alternative, the Appellant argues that the trial court improperly denied his request for full probation based upon its failure "to properly consider the sentencing principles." We agree with the Appellant's contentions that the record is "void of any evidence" that the trial court considered the relevant factors and sentencing principles in denying both diversion and total probation.2 Although the court clearly should have stated its reasons on the record, as required by statute and case law, vacation of the sentences and remand are not required, because the record is sufficient to permit meaningful review on appeal. I. Judicial Diversion

The statute regarding judicial diversion provides that "[a] court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant." T.C.A.

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