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State v. Albright

Court of Criminal Appeals of Tennessee, Nashville

May 16, 2017


          Session December 13, 2016

         Appeal from the Circuit Court for Dickson County No. 22CC-2013-CR-206 David D. Wolfe, Judge

         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

          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.

          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.


          J. ROSS DYER, JUDGE.

         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."

         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, 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 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 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 ...

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