FILED

January 29, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708-CC-00346

)

Appellee, )

)

) HAMBLEN COUNTY

VS. )

) HON. JAMES E. BECKNER

MICKEY LAMB, ) JUDGE

)

Appellant. ) (Direct Appeal - Possession of

) Controlled Substance)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM L. BROWN JOHN KNOX WALKUP

706 Walnut Street, Suite 902 Attorney General and Reporter

Knoxville, TN 379092

GEORGIA BLYTHE FELNER

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

C. BERKELEY BELL

District Attorney General

JOHN DUGGER

Assistant District Attorney

510 Allison Street

Morristown, TN 37814

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On August 1, 1997, Appellant Mickey Lamb pleaded guilty to three counts

of possession of a controlled substance with intent to sell and to thirteen counts

of delivery of a controlled substance. After a sentencing hearing that same day,

Appellant received an effective sentence of eight years. The trial court denied

Appellant’s request that he be placed on probation for the entire sentence.

Appellant challenges the trial court’s denial of probation. After a review of the

record, we affirm the judgment of the trial court.

FACTS

According to the evidence presented at the sentencing hearing,Agent Mike

Long of the Third Judicial District Drug Task Force paid Appellant approximately

$2,800.00 for the purchase of controlled substances at Appellant’s place of

business on nine different occasions between October 30, 1996, and December

23, 1996. During the execution of a search warrant at Appellant’s place of

business on December 30, 1996, law enforcem ent officials discovered ninety-six

morphine tablets, thirty-eight oxycodone tablets, thirty-three dihydrocodeinone

tablets, and $847.00 in cash. 
1We note that our review on appeal is limited to the narrow question presented by Appellant of

whether the trial court erred when it denied Appellant’s request for full probation. Accordingly, this opinion

does n ot addre ss the a ppropria teness of other s entenc ing alternative s. 

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ANALYSIS

Appellant contends that the trial court erred when it denied his request for

probation.1

 We disagree.

When a defendant challenges the manner of his or her sentence, this

Court must conduct a de novo review with the presumption that the determination

made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). This

presumption only applies, however, if the record shows that the trial court

properly considered relevant sentencing principles. State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). A review of the record indicates that this presumption is

applicable in this case.

Under Tennessee law, a defendant is eligible for probation if the sentence

imposed is eight years or less. Further, the trial court is required to consider

probation as a sentencing alternative for eligible defendants. Tenn. Code Ann.

§ 40-35-303(a)–(b) (1997). However, even though probation must be

autom atically considered, “the defendant is not automatically entitled to probation

as a matter of law.” Tenn. Code Ann. § 40-35-303(b) (1997) (Sentencing

Commission Comments); State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.

App. 1991). Indeed, a defendant seeking full probation bears the burden on

appeal of showing that the sentence actually imposed is improper and that full

probation will be in both the best interest of the defendant and the public. State

v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995). When determining
2

The record also indicates that in mak ing its determination to deny probation, the trial court

recognized that Appellant did not have a prior criminal record and that Appellant had some potential for

rehabilitation. The trial court concluded, however, that these considerations were outweighed by the

circumstances of the offenses and the need for deterrence. The court also noted that Appellant had been

shown a grea t deal of len ienc y when he w as sente nced to a term of eig ht years rather th an the sev entytwo years that the law a llows. 

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suitability for probation, the sentencing court considers the following factors: (1)

the nature and circumstances of the criminal conduct involved; (2) the

defendant’s potential or lack of potential for rehabilitation, including the risk that,

during the period of probation, the defendant will commit another crime; (3)

whether a sentence of full probation would unduly depreciate the seriousness of

the offense; and (4) whether a sentence other than full probation would provide

an effective deterrent to others likely to commit similar crimes. Tenn. Code Ann.

§§ 40-35-210(b)(4), -103(5), -103(1)(B) (1997 & Supp. 1998); Bingham, 910

S.W.2d at 456 (citations omitted).

The record indicates that the trial court based its decision to deny probation

on both the circumstances of the criminal conduct and the need to deter others

from committing drug related offenses.2 We conclude that the trial court properly

determined that the circumstances of Appellant’s offenses indicated that

probation was not appropriate. Indeed, the trial court noted that Appellant had

not been convicted of an isolated incident, but rather, had been convicted of

sixteen different drug related offenses that took place over a two month period.

The trial court concluded that the fact that Appellant continued to engage in

criminal conduct after having time to reflect on the wrongfulness of that conduct

weighed against a grant of probation. In addition, the fact that Appellant had 167

tablets of various controlled substances in his possession when the search

warrant was executed indicates that he was engaged in more than just a few

casual criminal transactions.
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We also conclude that the trial court properly determined that denial of

probation was necessary in order to deter others from comm itting drug related

offenses. This Court has stated that the general rule regarding deterrence is that

“[b]efore a trial court can deny alternative sentencing on the ground of

deterrence, there must be some evidence contained in the record that the

sentence imposed will have a deterrent effect within the jurisdiction.” Bingham,

910 S.W.2d at 455. However, this Court has held that the sale or use of

narcotics is “deterrable per se,” even in the absence of a record demonstrating

a need for deterrence. State v. Dykes, 803 S.W.2d 250, 260 (Tenn. Crim. App.

1990). Thus, the trial court properly denied Appellant’s request for probation

based on the need to deter drug related offenses. See id. See also State v.

Keith A. Jackson, No. 02C01-9705-CR-00193, 1998 WL 148330, at *3 (Tenn.

Crim. App., Jackson, April 1, 1998) (upholding denial of probation because sale

of narcotics is deterrable per se); State v. Timothy S. Myrick, No. 02C01-9512-

CC-00368, 1997 WL 11288, at *2–3 (Tenn. Crim. App., Jackson, Jan. 15, 1997)

(upholding denial of alternative sentencing because sale of narcotics is deterrable

per se).

In short, we hold that the trial court properly denied Appellant’s request for

probation based on the circumstances of the offenses and the need to deter

others from committing drug related offenses. Accordingly, the judgment of the

trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

JAMES CURWOOD WITT, JR., JUDGE