# FILED January 29, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708- CC-00346 ) Appellee, ) ) ) HAMBLEN COUNTY VS. ) ) HON. JAMES E. BECKNER MICKEY LA MB, ) JUDGE ) Appe llant. ) (Direct Appeal -

Possession of ) Controlled Substance)

FOR THE APPELLANT : FOR THE APPELLEE : WILLI AM L. BROWN JOHN KNOX WALKUP 706 Walnut Street, Suite 902 Attorney Generaland Reporter Knoxvill e, TN 379092 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 C. BERKELEY BELL Distri ct Attor ney General JOHN DUGGER Assistant Distri ct Attor ney 510 Allis on Street Morristown, TN 37814
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On August 1, 1997 , Appella nt Micke y Lamb pleade d guilty to three co unts of possession of a controll ed substance with inte nt to se ll and to thirte en cou nts of deliver

y of a controll ed substance. Af ter a sentenc ing hearing that same d ay, Appellant

received an e ffective sentence o f eight years . The t rial cour t denied Appe llant’s request that he be placed on probation f or the entire se n tence. Appellant

challenges t he trialcourt’s denial of probat ion. After a r

eview of t he record, w e affirm the judgm ent of the tria l court.

FACTS

Acco rdin g to the evi dence presented at the sentenci ng he aring, Agent Mik e Long of the T hird Ju dicial D istrict Dr ug T ask F orce p aid Ap pellan t appro ximate ly $2,800.00 for the pur chase of contr

olled substances at Appell ant’s pl ace of business on nine differ ent occasions between October 30, 1996, and December 23, 19 96. During the execution of a search warrant

at Appellant’s place of business on De cem ber 30 , 1996 , law en forcem ent offic ials discovered ninety- six morphine tab lets, thirt y-eight oxycodone tabl ets, thi rty-t hree dihydr ocodeinone tablets, an d $847 .00 in cas h.1 We note that our revi ew on appeal i s limitedto the narr ow question pr

esented by Appel lant of whether the t rial co urt erred whenit deni ed Appellant’s request for full probation . Accordingl y, this opinion does n ot addre ss the a ppropria teness of other s entenc ing alternative s. -3- ANALY SIS
Appellant

contends tha t the trial court erred w hen it d enied his request for probation. 1 We disagree.

When a defendant chal lenges the mann er of his or her s enten ce, this Court must conduct a de novo r eview wit h the presumpti on that the determinati on made by the tr ial court is correc

t. Tenn. Code Ann. § 40- 35-401(d) (1997). This pre sumption only ap plies, h owev er, if the re cord s hows that the tria l court prope rly considered relevant se ntencing principles
. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). A review of the record i ndicatesthat thi s presumption is applicabl e in thi s case.

Under Ten ness ee law , a defe ndan t is eligi ble for pr obation i f the sentence imposed is eig ht years or less. Fur

ther, t he trialcourt is required to consider probation as a se ntenc ing alte rnative for eligib le defendants. Tenn. Code Ann. § 40-35-303(a)– (b) (1997). However, even t hough probation must be autom atically considered, “the def endant is no t automatically ent itled t o probation
as a matter of l aw.” Tenn. Code Ann. § 40- 35-303(b) (199 7) (Sentenci ng Com miss io n Co mm ents); State v. Hartley , 81 8 S. W.2d 3 70, 373 (Ten n. C ri m. App. 1991). Indeed, a defendant seeki ng ful l prob ation bears the burden on appeal of show ing tha t the se ntenc e actu ally imp osed is impr oper a nd tha t full probation will be in both t he best intere st of the de fendan t and the p ublic. State
v. Bingham , 910 S.W.2d 448, 456 (Tenn. Cr im. App. 1995). When determining2 The record also indicates that in mak ing its determination to deny probation, the trial court recognized that Appell ant did not have a prior

criminal r

ecord and that

Appellant

had some potential

for rehabil itation. The tri al court co ncluded, however, that these considerat ions were out weighed by the circumstances of t he offenses and the need for deterrence. The court also noted that Appell ant had been sho wn a grea t dea l of len ienc y whe n he w as s ente nce d to a term of eig ht yea rs ra ther th an th e sev entytwo years that the law a llows. -4- suitability forprobation, the sentenci ng court consi ders the fol lowing fac tors: ( 1) the nature and ci rcumstances of t he c riminal conduct involved; (2) the defen dant’s potentialor lack of po tential for reh abilitation, inclu ding the ris k that, during the period of proba tion, t he defendant wi ll commit anot her crime; (3) whethera sentence of full probation would unduly de preciate t he seriousness of the offense; and (4) whether a sentence other

than full probation woul d provide
an effective deterrent

to othe rs likely to com mit similar crimes. Tenn. Code Ann. §§ 40-35-2 10(b)(4) , -103(5), -1 03(1)(B ) (1997 & Supp. 1 998); Bingham , 91 0 S.W .2d at 456 (citations o mitted).

The record indi cates that the tri al court ba sed its deci sion to deny probation on both the circumstances of the crimi nal conduct and the need to d eter others from committing drug related offenses. 2 We conclude that the trial cou rt prop erly determined that the c ircumstances of Appellant’ s offenses i ndicated t hat p robation was n ot app ropria te. Inde ed, the trial cou rt noted that Ap pell ant ha d not been convict ed of an isol ated inci dent, but r ather, had been conv ic ted of sixteen di fferent

drug related offensesthat took place over a t

wo month period. The trialcourt concl uded that the fac t that Ap pellan t contin ued to enga ge in criminal conduct after having time to reflect on the wrongf ulness of that conduct weighed against a grant of pr obation
. In additi on, the fac t that Appellant had 167 tablets of variou s con trolled s ubsta nces in his po sses sio n when t he search warrantw as exec ute d indicates that he was engaged i n more than just a few casual criminal tr

ansactions.-5- We also conclud e that the trial court pro perly determined that denial of probation was ne cessar y in order to deter oth ers from comm itti ng drug re lated offenses. This Court hasstated th at the general rule regar ding deterr

ence is that “[b]efore a trialcourt can deny alternat ive sentenci ng on the gr ound of deterrence, there must be som e evid ence contained i n the record t hat the sentence imposed willhave a deterr ent effect

within t he jurisdiction.” Bingham , 910 S.W.2d at 455 . However, this Court has held that

the sale or

use of
narco tics is “deterrable per se,” even in the absence of a record demonst rating
a need fo r deterren ce. State v. Dykes , 803 S.W.2d 250, 260 (Ten n. C ri m. App. 1990). T hus , the trial court properly

denied Appell ant’s request for pr obation based on the ne ed to de ter drug re lated offen ses. See id. S ee also State v. Keith A. Jackson , No. 02C01-97 05-CR- 00193, 1998 WL 148330, at *3 (Tenn. Cri m. App., Jackson, April 1, 1998) (upholdi ng denial of probation because sale of narcoticsis deterrab le per se); State v. Timothy S. Myri ck , No. 02C01-9512- CC-00368, 1997

WL 1128 8, at * 2–3 (

Tenn . Cr im. App., Jackson, Jan. 15, 1997) (upholding denial of

alternative sentencing because sa le of na rcotics is dete rrable per se).

In short, w e hold that thetrialcourt properly denied Appel lant’s request for probation based on the cir cumstances of the offenses and t he need to deter others from committing dr ug related of fenses. Accor

dingly, the judgment of the tri al co urt

is AF FIRMED.

____________________________________ JERRY L . SMI TH, J UDGE-6-

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE