IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 19, 2000 Session

STATE OF TENNESSEE v. ROBERT LEWIS HERRIN

Appeal from the Circuit Court for Marshall County

No. 13841 Charles Lee, Judge

No. M1999-00856-CCA-R3-CD - Filed February 9, 2001

The appellant, Robert Lewis Herrin, pled guilty in the Marshall County Circuit Court to one count

of theft of property worth one thousand dollars ($1,000) or more but less than ten thousand dollars

($10,000), a class D felony. The trial court sentenced the appellant as a Range I offender to three

years incarceration in the Tennessee Department of Correction, suspending all but 120 days of the

appellant’s sentence and granting him supervised probation for a term of ten years. As a special

condition of probation, the trial court prohibited the appellant from engaging in “any type [of]

construction business or solicitation for business.” In this appeal, the appellant argues that the trial

court erred in imposing this special condition of probation. Following a review of the record and

the parties’ briefs, we affirm the judgment of the trial court as modified.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed as

Modified.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE

G. RILEY, JJ., joined.

Thomas E. Hansom, Memphis, Tennessee, and Paul J. Bruno, Nashville, Tennessee, for the

appellant, Robert Lewis Herrin.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, W.

Michael McCown, District Attorney General, and Weakley E. Barnard, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On March 17, 1999, a Marshall County Grand Jury returned an indictment charging

the appellant with two counts of theft of property worth one thousand dollars ($1,000) or more but

less than ten thousand dollars ($10,000). The appellant pled guilty to one count of theft on July 1,

1999. At the guilty plea hearing, the State revealed that the indictment and guilty plea arose from
1

The pre -sentence rep ort indicates tha t Pinkston wa s seventy-nine yea rs old

2

In North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 167-168 (1970), the United States Supreme

Court ruled that, whe n strong evid ence of guilt sub stantially negates a defendant’s claim of innocence and a defendan t,

represented and advised by counsel, intelligently concludes that it is in his best interest to plead guilty, a trial court does

not commit constitutional error in accepting the guilty plea. See also Dortch v . State, 705 S.W.2d 687, 689 (Tenn. Crim.

App.1985).

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the appellant’s theft of $3,500 from an eighty-three-year-old1

 woman named Dorothy Pinkston on

December 21, 1998. 

On the date of the appellant’s offense, a man identifying himself as Robert Herrin

came to Pinkston’s home and informed Pinkston that the lightning rods on the roof of her house were

damaged and in need of repair. He offered to repair the lightning rods for $3,500. Pinkston agreed

and wrote a check payable to Robert Herrin. The man then departed, assuring Pinkston that he

would return with the necessary materials and equipment. Following his departure, Pinkston

immediately began to feel uneasy about her arrangement with the stranger and called her

granddaughter. Pinkston’s granddaughter suggested that Pinkston call her bank and attempt to stop

payment of the check. However, when Pinkston called the bank and spoke with the manager, she

was informed that the check had already been cashed. The stranger never returned to Pinkston’s

home to repair the lightning rods on her roof.

The police were ultimately able to apprehend the appellant because the person who

cashed Pinkston’s check provided the appellant’s driver’s license number to the bank teller. Indeed,

at the guilty plea hearing, the appellant admitted that he had personally cashed Pinkston’s check,

although he maintained that an accomplice had acquired the check from Pinkston. In any event, the

appellant agreed that he was criminally responsible for any conduct by his accomplice, specifically

noting that he was not entering an Alford or “best interest” plea.2

In return for the appellant’s plea of guilt, the State recommended a sentence of three

years incarceration in the Tennessee Department of Correction. Moreover, the parties agreed that

the trial court would determine whether the appellant was an appropriate candidate for alternative

sentencing. Accordingly, the trial court conducted a sentencing hearing on September 8, 1999. 

At the sentencing hearing, the State relied upon the transcript of the guilty plea

hearing, the pre-sentence report, and testimony by Judy Byrd, the probation officer who prepared the

pre-sentence report. According to Byrd and the pre-sentence report, the appellant was fifty-eight

years old and a resident of Indiana at the time of these offenses. Additionally, the appellant had been

married for thirty-five years and had two adult children. The appellant’s formal education had ended

in the fifth grade in elementary school, and he was currently employed as a laborer in his son-inlaw’s paving business. Prior to his employment by his son-in-law, he had owned and operated a

business that serviced septic tanks.
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The pre-sentence report further reflects that the appellant possesses a criminal record,

including a July 7, 1999 conviction in Georgia of theft by deception, for which offense the appellant

was placed on probation for a term of ten years. According to the pre-sentence report, the appellant

was arrested for the Georgia offense only 2 1⁄2 weeks prior to the offense in this case. Additionally,

the appellant’s criminal record includes February 14, 1989 convictions in Florida of conducting

home solicitation without a permit, engaging in business without an occupational license, engaging

in the construction industry without a certificate of competency, and using a commercial vehicle

without displaying the necessary business permits. For each of these offenses, the appellant was

required to pay a fine and court costs or serve fifteen days in jail.

The appellant paid full restitution to the victim in this case. Nevertheless, Pinkston

submitted a victim impact statement in which she expressed her continuing fear of the appellant.

She noted that, since the instant offense, she has been nervous during the day and has experienced

difficulty sleeping at night. Pinkston asked that the appellant be denied probation.

The appellant testified on his own behalf at the sentencing hearing. He conceded that,

in addition to the aforementioned criminal convictions, he was charged in 1993 with theft by

deception and deceptive business practices in Pennsylvania as a result of a dispute over a

construction project that his son-in-law’s paving business had been hired to perform. The appellant

noted that the charges were dismissed upon his return of the money paid for the project. 

The appellant further testified that, in addition to his employment by his son-in-law,

he frequently traveled southward during the wintertime in search of other, temporary employment

in the construction trade. He explained that, at the time of the instant offense, he was driving

through Tennessee en route to his brother-in-law’s home in Cullman, Alabama. He stopped briefly

at a Waffle House in Nashville, where he was approached by a man named Rick Shafer. Shafer

asked the appellant to cash a check for him, explaining that he had earned the money but did not

have a driver’s license. Shafer offered the appellant five hundred dollars in return for his assistance.

According to the appellant, he agreed because it was almost Christmas and he needed the money.

Therefore, he drove with Shafer to Lewisburg, Tennessee, and waited in a Krystal Restaurant while

Shafer acquired the check. The appellant then went to the bank and cashed the check. As agreed,

Shafer gave the appellant five hundred dollars.

At the conclusion of the sentencing hearing, the trial court accepted the State’s

recommendation and imposed a sentence of three years incarceration in the Tennessee Department

of Correction. Additionally, the trial court suspended all but 120 days of the appellant’s sentence

and granted the appellant supervised probation for a term of ten years. As a condition of probation,

the trial court prohibited the appellant from traveling outside his home county in Indiana and from

engaging in “any type [of] construction business or solicitation for business.” The trial court

explained that

I have a hunch that Mr. Herrin is involved to much greater extent in

traveling around the countryside and taking people’s money than
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what this record shows. The record shows twice. Once in Georgia,

once in Tennessee. That I know.

I have a hunch that Mr. Herrin, that this activity is not foreign to Mr.

Herrin. This is the way Mr. Herrin makes his money and he has just

gotten caught in these two most recent events.

II. Analysis

On appeal, the appellant argues that the trial court erred in prohibiting him, as a

special condition of probation, from obtaining employment in “any type [of] construction business

or solicitation for business.” Specifically, the appellant asserts that the disputed “condition is not

designed to rehabilitate him; on the contrary, it is punitive and contrary to the intentions of

probation.” The burden is upon the appellant to demonstrate the impropriety of his sentence,

including the manner of service of his sentence. Tenn. Code. Ann. § 40-35-401 (1997), Sentencing

Commission Comments; see also State v. Burdin, 924 S.W.2d 82, 84 (Tenn. 1996). In determining

whether the appellant has satisfied his burden, this court reviews the trial court’s sentencing

determination de novo. Tenn. Code. Ann. § 40-35-401(d); see also Tenn. Code Ann. § 40-35-210

(1998)(setting forth factors relevant to any determination of the specific sentence and the appropriate

combination of sentencing alternatives). However, if the record reveals that the trial court

adequately considered sentencing principles and all relevant facts and circumstances, this court will

accord the trial court’s determination a presumption of correctness. Id.; State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). Because the record indicates that the trial court in this case relied upon a

“hunch” in imposing the disputed condition of probation, we decline to accord its determination the

presumption.

Under the Tennessee Criminal Sentencing Reform Act of 1989, a trial court has great

latitude in imposing conditions on probation. Burdin, 924 S.W.2d at 85. Thus, while Tenn. Code

Ann. § 40-35-303(d) (1997) provides a list of possible conditions, the list is not exclusive, and the

trial court may require a defendant to “[s]atisfy any other conditions reasonably related to the

purpose of the [defendant’s] sentence and not unduly restrictive of the [defendant’s] liberty, or

incompatible with the [defendant’s] freedom of conscience, or otherwise prohibited by the chapter.”

Id. at (9). That having been said, our supreme court in Burdin, 924 S.W.2d at 86, emphasized that

the primary purpose of a sentence of probation is rehabilitation of the defendant, and, therefore,

“[Tenn. Code Ann. §] 40-35-303(d)(9) cannot be read as granting unfettered authority to the courts

to impose punishments which are beyond the bounds of traditional notions of rehabilitation.”

Accordingly, the court in Burdin held that a trial court could not require a probationer convicted of

the sexual battery of a sixteen-year-old child to post a sign in his front yard notifying his neighbors

of his conviction. 924 S.W.2d at 87.

Of course, even if a condition of probation is consistent with traditional notions of

rehabilitation, a court must take care that the condition is not needlessly broad, i.e., needlessly

restrictive of a defendant’s liberty, and that the condition is closely tailored to the circumstances of

a particular case. For example, in State v. D’Shannon H. Goins, No. 03C01-9704-CR-00154, 1998
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WL 597047, at *1 (Tenn. Crim. App. at Knoxville, September 10, 1998), the defendant was

convicted of simple assault in connection with a barroom brawl. The trial court sentenced the

defendant to eleven months and twenty-nine days incarceration in the county jail, suspending all but

sixty days of the defendant’s sentence and granting him supervised probation. Id. As special

conditions of probation, the trial court prohibited the defendant from frequenting any establishments

that sell alcoholic beverages, including grocery stores, and from living with any woman to whom he

was not married, including the mother of his child. Id. at *4. On appeal, the defendant challenged

these special conditions. First, this court conceded that “a prohibition against entering

establishments such as bars and night clubs that sell alcoholic beverages may be within the bounds

of traditional notions of probation in appropriate cases.” Id. at *5. However, we concluded that

extending the prohibition to encompass grocery stores that sell alcoholic beverages rendered the

condition of probation “needlessly broad,” interfering with the defendant’s ability to provide for

himself and his family. Id. Second, this court conceded that prohibiting a defendant from living

with his family may serve rehabilitative purposes in some circumstances, but we again concluded

that the trial court’s condition was drawn too broadly, prohibiting the defendant from living with any

woman to whom he was not married. Moreover, we noted that the particular circumstances of the

case did not appear to justify even a narrower restriction. Id.

As to the instant case, we initially note that, contrary to the appellant’s argument,

courts in several jurisdictions have observed that restrictions upon a defendant’s employment may

serve rehabilitative purposes. See, e.g., Thomas v. State, 710 P.2d 1017, 1019 (Alaska Ct. App.

1985)(In a case in which the defendant was convicted of four counts of theft in connection with his

employment as the skipper of a fishing vessel, the Alaska Court of Appeals concluded that some

restriction upon the defendant’s ability to fish commercially was related to his rehabilitation.);

People v. Lewis, 143 Cal. Rptr. 587, 592-593 (Cal. Ct. App. 1978)(In a case in which the defendant

was convicted of four counts of pimping, the California Court of Appeal concluded that a condition

of probation prohibiting the defendant from working in bars, taxicabs, or other locations conducive

to pimping had a reasonable relation to the likelihood of future criminality by the defendant.); State

v. Graham, 633 N.E.2d 622, 624-625 (Ohio Ct. App. 1993)(In a case in which the defendant was

convicted of securities violations in connection with his accounting business, the Ohio Court of

Appeals concluded that a condition of probation prohibiting the defendant from performing general

accounting services for the public was reasonably related to the rehabilitation of the defendant.). We

agree with the observation of those courts. Moreover, it seems clear to us that, under the particular

circumstances of the instant case, the trial court could reasonably have concluded that some

restriction on the appellant’s employment in the “construction business or solicitation for business”

would contribute to his rehabilitation. As was its prerogative, the trial court did not accredit the

appellant’s claims that he was ignorant of the source of the $3,500 check. State v. Parker, 932

S.W.2d 945, 956 (Tenn. Crim. App. 1996). Moreover, the appellant’s prior criminal offenses

similarly related to his employment in the construction trade and his solicitation of business in that

trade.

However, it also seems clear to us that a special condition of probation that prohibits

the appellant from engaging in “any type [of] construction business or solicitation for business” is
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far too broad, particularly as the construction trade appears to be this sixty-year-old appellant’s

primary means of livelihood. Accordingly, we modify the trial court’s judgment to reflect a

narrower, better-tailored condition of probation. Specifically, we impose the following restrictions

upon the appellant’s employment: (1) the appellant is prohibited from engaging in solicitation of

business in the construction trade; (2) the appellant must notify his probation officer prior to

accepting any employment in the construction trade; and (3) the appellant is prohibited from

assuming any position in which he has sole supervisory responsibilities over a construction project

or in which he is responsible for obtaining, collecting, or managing funds relating to construction

projects.

III. Conclusion

In accordance with the foregoing opinion, the judgment of the trial court is affirmed

as modified.

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NORMA McGEE OGLE, JUDGE