A DeKalb County man, unhappy with the sentence he received a year ago in a statutory rape case, could hear soon from his appeal to the Tennessee Court of Criminal Appeals, Middle Division, as to whether the lower court's sentence was proper.
Criminal Court Judge Leon Burns, Jr., in September 2006, sentenced Gary Carter to four years probation, except for nine months to serve in the county jail, after Carter entered a guilty plea to one count of statutory rape, involving a female, who was seventeen years old and only a few months shy of turning eighteen when the incident allegedly occurred.
Carter has remained free on bond since filing the appeal nearly a year ago. His name is also listed on the Tennessee Sexual Offender Registry.
In the appeal, the attorney for Carter, Hilton Conger, is asking that Carter be granted probation, and not be made to serve nine months in jail.
Conger, in his written argument filed with the higher court, says the trial court erred in denying Carter probation, especially since Carter had no previous criminal record. Conger writes, " Despite the overwhelming evidence in the record that the appellant (Carter) was a favorable candidate for alternative sentencing, the trial court ambiguously ignored the presumption and failed to articulate in the record its reason or reasons for doing so."
Conger also claims that the trial court "abused its discretion when it summarily denied the appellant's application for Judicial Diversion without specific consideration, on the record, of the relevant factors required under Tennessee Law. Even if sufficient evidence exists to support the denial of Judicial Diversion, the trial court must state its reasons for its denial of Judicial Diversion. It is clear from the record that the trial court failed to weigh all of the factors necessary prior to making its determination that the appellant's application for Judicial Diversion would be denied."
According to Conger, "requiring the appellant to serve nine months would require a complete disregard for the laws and statutes of the State of Tennessee and would cause the appellant and his family to suffer without his income to support them. The appellant has learned a humiliating, humbling and frightening lesson in life which has taken it's toll on him emotionally and physically. The comments of the Assistant District Attorney and of the trial court, on the record, support the appellant's contention that he will return to the exemplary life that he enjoyed prior to the date in question. The chances that the appellant will engage in future criminal conduct are extremely remote. Additionally, the appellant has expressed sincere remorse for his actions, and has taken full responsibility."