# FILED
August 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1998

STATE OF TENN ESSEE, ) ) No. 01C01-9703-CC-00095 Appellee ) ) MARSHALL COUNTY vs. ) ) Hon. CHARLES LEE, Judge SAMUEL L. LA

MB, JR., )

) (Sentencing) Appellant )
For the Appellant : For the Appellee : James Robin McKinney , Jr. John Knox Walkup Suite 103 Attorney General and Repor ter 214 Second Avenue North Nashville, TN 37201 Karen M. Yacuzzo Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
Will iam M icha

el McCown District Attorney General Weakley E. Barnard Asst. District Attor

ney General Marshall County Courthouse Lewisburg, TN 37091

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The a ppellant w as origina lly charged w ith four cou nts of the ft of prope rty. 2 O P I N I O N
The appellant, Samuel L. Lamb, Jr., appeals as of right the sentenci ng decision of the Marshall C ounty Circuit Court . Pursuant to a plea agreement,the appella nt pled gu ilty to thre e counts of thef t of prop erty and re ceived an effect ive five year sentence. 1 Following a sentenc ing hearing, the tri al court ordered that the appellant serve 270 days of this sentence in the county jail with the balance

of the sentence to be served in the community corrections pr ogram. In this appeal, the appellant contends that the trial court erred by denying full probation or placem ent in community corrections.

After revi ew, we affi rm.
Background
On May 8, 1996, the appellant,age 22, and his wife, Jenni fer Lamb, age 19, residents of Davidson Count y, accompanied by Donal d Maxey, Jr. and Don na Maxey, traveled to Columbia, Tennessee, for the purpos e of committing thefts. The four entered Wal-Mart, where they stole num erous electronic items, including VCRs and camcorders. After loading the stolen items into the trunk o f the appellant’s car, they proceeded to K-Mart where they repeated the s ame procedure. Later that evening, the group st

opped at a local park to vi ew the stolen merchandise. Detective David C

opeland of the Lewisburg Pol ice Department approached the four. None could produce valid identification. The detectiv e noticed several new

boxes of Magnavox VCRs i n the vehicle as wel l as Wal-Mart and K-Mart shopping bags. Detective Copeland asked to search the vehicle and consent was given.When he asked the appellant where he had gotten the merchandise, the appe llant said he2 A total of $2 ,745.66 in stolen m erchan dise was recove red from the vehicle

. 3 had taken it f rom the dock at t he back of the Wal-Mart s tore in Lewisburg. 2 Detective Copeland advised the appellant that there was no dock at the W al-Mart in Lewisburg.
Upon further questioning a t the Lewisburg Poli ce Department, the appellant related an entirely different story. The appellant told the de tective that he and his wife did not go to the stores on the night in question because they were visiting his wife’s grandfather. Ev

entually, however, the appellant admitted that he, hi s wife, and the Maxeys wer

e all equally gui lty of the thefts. The appellant l ater pled guilty to two counts of class E theft an d one count of class D theft.
At the sentencing hearing , the court heard testimony from the appellant and the officers involved in this case. The appellant testified th at he was currently working for the TVA Steam Pl ant in Gallatin and had maintaine d this position for three weeks as of the date of the sentencing hearing. He ad mitted that he had previously been plac

ed on probation, following a charge for burglary

which was later reduced to criminal trespa ss. When asked if he had ever been known unde r another name, th e appell ant inv oked his fifth amen dment ri ght aga inst se lfincrimination. He further stated that he dropped out of school i n the tenth grade and had made no attempt to pursue his G.E.D . He testified that he was a rrested for public intoxication w

hile out on bond pending resol ution of the charges in the present case. He also remar ked that he was aware that his wife was on pr obation when the two committed thes e offenses. The appellant was sentence d to concurrent two year

sentences for the two clas s E felony convictions , to run consecutive to the three y ear sentence imposed for the class D felony conviction. The trial court then ordered that the appellant serve 270 days of his five year sentence in the county jai l followed by placement i n the local community corr ections program.4 Analysis
In this appeal, the appellant co ntends that the trial court failed to “give the Defendant the presumption of alternativ e sentencing,” and improper ly shifted to the appellant the burden of establishing entitlemen t to probation. Review by this court of the length, range, or manner of service of a sentence is de novo with a presumption that the determination made by the trial court i s correct. Tenn. Code Ann. § 40-35-401(d)(1990). This presumption only applies, however, if the record demonstrates that the trial c ourt properly consider

ed relevant sentencing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). We conclude that the presumption of correctness applies in this case. In making the review, this court must consider the evidence heard at trial and at sentenci ng, the presentence report, the arguments of counsel, the natur e and characteristics of the o ffense, any mitigating and enhancement factors, the appe llant’s statements, and the appellant’s potential for rehabilitation.Tenn. Code Ann. §§ 40-35-102, - ( 1995 Supp.), 103(5) (1990), -210(b) (1995 Supp.) ; see also State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993 ) (citing Ashby , 823 S.W.2d at 168). The burden is on the appellant to show that the sentence impos ed was improper. Sentenci ng Commission Comments, Tenn. Code Ann. § 40-35-401 (d).

A. Alternative Sentencing Specifically, in reference to alternative sentencing, the court held, “The court must begin its inquir

y as to the appropriate se ntence for Mr. Lamb with the presumption that he is entitle d to alternative sentenci ng.” Notwithstandi ng the presumption granted the appell ant, the trial court appropr iately review

ed the sentencing evidence to det ermine (1) whether the pr esumption was rebutted by “evidence to the contrar y,” Tenn. Code Ann. § 40-35-102 (6) and (2) whether the appellant’s previous criminal history and fail ure of past efforts at rehabilitati on3 This provision provides that "nothi ng in thi s chapter shal l be construed as altering any provisi on of present st atutory or case law req uiringthat th e burden of establ ishing sui tabil ity for probation rests with th e defen dant." 5 stripped him of entitlement to the pr esumption. Tenn. Code Ann. § 40-35-102( 5) and (6). “Convicted felons committing the most sev ere offenses, possessing criminal histories ev

incing a clear disr

egard for the laws and mor als of society, and evincing failure of past efforts at rehabilitation” are n ot entitled to the presumption for alternative sentencing

options. Tenn. Code Ann. § 40-35-1 02(6). See also State v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995) (citing State v. Bonestel , 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993)). In this case, the trial cour t found that the State presented “ev idence to the contrary,” thus, rebutting the appellant ’s entitlement to the statutor y presumption for an alternative sentence. The record supports this finding and the trial court’s applicat ion of th e law.

B. Probation and Burden of Proof Next, the appellant arg ues that the trial court s hould have granted a nonincarcerative sentence

of either “straight pr

obation” or placement in a community corrections program. In support of this position, he contends tha t the court erred in holding “that the burden w as on the Defendant to show the Co urt that he was entitled to be granted probati on.” In State v. Bingham , 910 S.W.2d at 455-45 6, this court dis tinguish ed betwee n the burd en of pro of for p resumpt ion of an alternat ive sentence and probation: It should be pointed out that determining whether a def endant is entitled to an alternativ e sentence necessarily requires a separate inquiry from that of determining whether the defendant is ent itled to full probation. This is so because the inquiries inv

olve different burdens of proof. Where a defendant is entitled to the statutory presumption of alternative sentencing , the State has the burden of overc oming the presumption with evi dence to the contrary. C onversely, the defendant has the burden of establishing suitability for full pr obation, even if the defend ant is ent itled to t he statu tory presu mption o f altern ative sentencing. See Tenn. Code Ann. § 40-35-303(b)(1 994 Supp).[ 3 ] There is no bright line r ule for determining when pr obation should be granted. To meet the burden of establishing suitability for f ull probation, the defendant must de monstrate that probation will6 "subserve the ends of justice and the best interest of both the public and the defendant." State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990).
In denying a sentence of total probation or community cor rections, the trial court found: The defendant has demonstrated to the court fail ures of past efforts of past rehabilitation. . . . Within two years from the com pletion of his prior probation he is committing not one, not two but three additional felonies in two jurisdi ctions. Perhaps wors e than that is the fact that the defendant knew that he had an accompl ice with him, his w ife, who was also on probation for ex actly the same offense. And assis ted and aided and abetted her in the commiss ion of these felonies while sh e was on probation.

. . . . . . he does not think that the offici als of the court are very important persons, that it is alright to lie to them initially until it looks like they are going to pin his ears

down. He does not think that having cases pending in court are very important because he goes out to commit what counsel for the defense says is a minor infraction [public intoxication]. . . . He has an unstable employment hi story and certainly not one that s peaks well for him. These findings are supported by the record. This issue i s without merit. Upon de novo

review, we find that, based upon the nature and cir cumstances of the criminal conduct inv olved and because measures les s restrictive than confinement have proven to be uns uccessful, imposition of 270 days incarceration in the county jail is

justified. We find no error in the trial court’s application of the law or its sentencing

decision.
For the foregoing reasons , the judgment of the trial cour t is affirmed.

____________________________________

DAVID G. HAYES, Jud ge7

CONCUR:

______________________________________ GARY R. WADE , Presiding Judge

______________________________________ JERRY L. SMITH, Jud ge