### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE September 19,

2000 Session
STATE OF TEN

NESSEE v. ROB

ERT LEWIS HERR

IN
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 Herri

n, pled guilty

in the Marshall Coun

ty Circuit Cour

t to one count of theft of propert

y worth one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), a class D felony . The trial court s

entenced the ap

pellant as a Rang

e I offende

r to three yearsincarceration in the Tennessee Department of Correction, suspending all but 120 days of the appellant’s sentence and g ranting him su pervised 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 sol icita tion for bu sines s.” In this appeal, the appellant argues that the trial court erred in imposing this special condition of probation. Follow ing 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.

N ORMA M C G EE O GLE , J., delivered the op inion of the court,

in which D AVID H. W ELLES and J OE G. R ILEY , JJ., joined.

Thomas E. Hansom, Memphis, Tennessee, and

Pa ul J . Bruno, Nashville, Tennessee, for the appellant, Robert Lewis Herrin.

Paul G. Summers , Attorne y Gene ral and Re porter, L ucian D. G

eise, Ass istant Att orney General, W. Michael McCown, District Attorney General, and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION I. Factual Backgr

ound On March17, 1999, a Marsha ll 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 from1 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 State s Supre me Court ruled that, whe n strong evid ence of guilt sub stantially negates a defendant

’s cla im of in nocence and a

defendan t, represented

and advised by counsel, intel ligentl y concludes tha

t it is in his best

interest to plead guilt

y, a tri al court does not commit constit

utional err

or in accepting

the guilt y plea. See also Dortch v . State , 705 S.W.2d 687, 689 (

Tenn. Cri

m. App.1985).

-2- the appellant’s th

eft of $3,500 fro

m an eighty

-three-y ear-old 1 woman named Dorothy Pinkston on December 21, 1998.

On the d ate of the appellant’s offe nse, a man identif

ying himsel

f as Robert Herr

in
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 t hen departed, assuring Pinkston that he would return with the necessary materials and equipment. Following his depa rture, Pinkston immediately

began to feel uneasy about her arra ngement with the stranger and called her granddaughter. Pinkston’s granddaughter suggested that Pinkstoncall 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 alr eady been cashed. The stranger ne ver 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 p

lea hearing, th

e appellant admi

tted that he had personally cashed Pinkston’s check, although he maintained that anaccomplice had acquired the check from Pinkston. In any e vent, 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 determinewhether the appe llant was an appr

opriate candida

te for alternative sentencing. Accordingly, the trial court conducte d a sentencing hearing on September 8, 1999.

At the sentencin

g hearing, t

he 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-se ntence report, the appellant was fifty-eight yearsold and a resident of Indiana at the time of these offenses. Additionally, the appellant had been married for thirty-five years a

nd had two adult children. The appellant’s formal education had ended in the fifth grade in elementary school, and he was c urrently employed as a laborer in his son-inlaw ’s paving business. Prior to his employment by his son-in-law, he had owne d and oper ated a business that serv

iced septic tanks

.-3- The pre-sentence report further reflects that the appellant po ss esses a criminal record, including a July 7, 1999 conviction in Georgia of theft by deception, for which offe nse the appellant
was placed on probat

ion for a term of te

n years. According to the pre-sentence report, the appellant
was arre ste d fo r th e Geo rgia off ens e on ly 2 1⁄2 week s pr ior to t he o ffen se i n th is c ase. Add iti ona lly, the appellant’s criminal record includes February 14, 19 89 convictions in Florida of conducting homesolicitation without a permit, engaging in business without an occupational license, engaging in the construction i

ndustry witho

ut a certificate

of competency

, and using a comm

ercial vehicle withoutdisplaying the necessary business permits. For each of these offenses, the appellant was required to pay

a fine and court c

osts or serve fift

een days in

jail.

The appellant paid full restitution to the victim in this case. Nevertheless, Pinkston submi tted a victim impact stat ement in which she

expressed her co

ntinuing fear of

the appellant. She noted that, since the instant offense, she has been nervous during the day and has experience d difficulty sleeping at night. Pinkston asked that the appellant be denied probation.

The appellant testi

f ied on his own beha

lf at the sentenc

ing hearing. H

e conceded that

, in addition to the aforementioned criminal convictions , he was charged in 1993 with theft by deception and deceptive business practices in Pennsylvania a s a result of

a dispute over a construction project that

his son-in-law’s p

aving business ha

d been hired to pe

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

The appellant furthe

r testified that,

in addition to his employment by his son-in-law, he frequently traveled

southward during the wintertime in search of other, temporary employ ment in the construction trade. He explaine d 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 brief ly at a Waffle House in Nashville, where he was approached by a man na med Rick Shafer. Shafer askedthe appellant to cash a check for hi m, 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, h e agreed bec

ause it was almost Ch

ristmas and he nee

ded th e mone y. 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 th

e appellant five

hundred dollars.

At t he co nclusion of the sentencing hearing, the trial court accepted the State’s recommendationand imposed a sentence of three years incarc eration in the Tennessee Department of Correction. Addit

ionally, the

trial court suspen

ded all but120 days of the appellant’s sentence and granted

the appellant supervised probation for a term of ten years. As a c ondition of probation, the trial court prohibited the appellant from traveling

outside his home

county in Indiana and from engaging in “ any t yp e [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-4- 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 re

cent events. II. Analysis On appeal, the appellant argues that the trial court erred in prohibiting him, a s a special condition of probation, from obtaining employment in “any ty pe [of] construction busin ess or so licitation for business.” Specifically, the appellant asserts that the disputed “condition is not designed to rehabilitate hi m; on the co ntrary, 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 ha s satisfied his burden, this court reviews the trial court’s sentencing determination de novo. Tenn. Code. Ann. § 4 0-35-401(d); see also

Tenn. Code Ann. § 40-35-210 (1998)(setting forth factors re levant to any

determination of t

he specific

sentence and

the appropriate combination of sentencing alternatives). However, if the record revea ls 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 cour t i n this case relied upon a “hunch” in imposing the disputed condition of probation, we declineto 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 r

equire a defen

dant to “[s]atisfy

any other c

onditions reasona

bly rela ted to the purpose of the [defendant

’s] sentence and n

ot unduly res

tric tive 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 def endant, and, therefore, “[Tenn. Code Ann. §] 40-35-303(d)(9) cannot be read asgranting unfe ttered authority

to the courts to impose punishments which are beyond the bounds of tradition al not ions of rehabilitation.” Acco rdi ngly, the court in Burdin held that a trial court

could not require a probationer convicted of the sexual battery

of a sixteen-y

ear-old child to

post a sign in his front yard notifying his neig hbors of his conviction. 924 S.W.2d at 87.

Of course, even if a condition o f probation is consistent with traditional notions of rehabilitation, a court must take c are that the cond

ition is not needless

l y broad , i.e., needlessly restrictive of a defendant’ s liberty, a nd that the conditio

n is closely

tailored to

the circumstances of
a particular

case. For exampl

e, in State v. D’Shannon H. Goins , No. 03C01-9704-CR-00154, 1998-5-

WL 597047, at *1 (Tenn. Crim. App. at Knoxville, September 10, 1998), the de fendan t was
co n victed of simple assault in connection with a barroom brawl. The trial court sentenced the defendant to eleven months andtwenty-nine days incar

ceration in the c

ounty jail, su

spending all

but sixty days of the d

efendant’s sent

ence and gran

tin g him supervis ed 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 themother of his child. Id. at *4. On appeal, the defendant challenged these special conditions. First, this court conce ded tha t “a prohibition against entering establishments

such as bars and night clubs that sell alcoholic beverages may be within the bounds of t r aditional notions of probation in appropriate cases.” Id. at *5. However, we concluded that extending the prohibition to encompass grocery stores that sell alcoholic beverage s rendered the condition of probation “needlessly broad,” i nterfe ring with the defendant’s ability to provide for himself and his family. Id. Second, this court conceded that p

rohibiting a de fendant from living withhis family may serve rehabilitative purposes in some c ircumstances, 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 re striction. 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 rehabi litative 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 fishi ng vessel, the Alask a Court of Appeals

concluded that so

me restriction upon the defenda nt’s ability t

o fish commercial

ly was rela

ted to his rehabil

itation.) ; People v. Lewis , 143 Cal. Rptr. 587, 592-593 (Cal. Ct. App. 1978)(In a case in which the defendant
was convictedof four counts of p imping, the Califo

rnia Court of Appe

al concluded tha

t a condition of probation prohibit

ing the defenda

nt from working in

bars, taxicabs, or other locations conducive to pimping had a reasonable relation to the likelihood of future criminality

by the defe

ndant.); State
v
. Graham , 633 N.E.2d 622, 624 -625 (Ohio Ct. App. 1 993)(In a ca se in which the def

endant w a s convictedof

securiti es 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 defen dant.). We agree with the observation of

those courts. Moreover, it seems clear to us that, under the particular circumstances of the instant case, t he trial c ourt could reason ably have c

oncluded that some restriction on the appellant’s emplo yment in the “

construction busin

ess or solicitation for

business” would contribute to his re

habilitation. As wa

s its prerogativ

e, the tr ial cour t did not accredit the appellant’s claims that he was ignorant of the source of the $3,500 ch eck. State v. Parker , 932 S.W.2d 945, 956 (T enn. Cr im. App. 1996). Moreover, the appellant’s prior criminal offenses similarly related to his

employment in

the construction t

rade and his solic

itation 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 bus

iness or solicitatio

n for business” is-6-

far too broad, part icularly as the construction trade appears to be this sixty-y ear-old appellant’s primary means of livelihood. Ac cordingly , we modify th e trial court’s ju

dgment to refle

ct a narrower, better-tailored

condition of proba

tion. Specifically

, we impose

the following restrictions upon the appellant’s employment: (1) the appellant is prohibited from engaging in solicitation o f business in the construction trade; (2 ) the ap pellant must notify his probation offi

cer 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 obtaini ng, co llecting, 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.

___________________________________ NORMA McGEE OGLE, JUDGE