# FILED August 5, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON JUNE SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9712-CR-00474 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY VINCENT LASANE and ) JUDGE TERRENCE L. THOMAS, ) ) Appellants. ) (Sentencing)

ON APPEAL FROM THE J UDGMENT OF THE CRIMINAL COURT OF SHELBY COUN TY
FOR THE APPELLANTS : FOR THE APPELLEE : DEWUN R . SETTLE PAUL G. SUMMERS Attorney for Terrence L. Thomas Attorney Generaland Reporter 67 Madison, Suite 210 Memphis, TN 38103 PATRICI A C. KUSSMANN Assistant Attorney General LESL IE I. BAL LIN 425 Fifth Avenu e North MARK A. MESLER Nashville, TN 37243 Attorneys for Vincent Lasan e 200 Jefferson Avenue, Suite 1250 WILLI AM GIBBONS Memphis, TN 38103 Distri ct Attor ney General ROSE MARYANDR EWS Assistant Distri ct Attor ney General Criminal Just ice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED I N PART; REV ERSED AND REMANDED I N PART-2-

DAVID H. WELL ES, J UDGE-3- 

# OPINION

The Defen dants appeal from t he sentences order ed by thetr ialcour

t. On April 24, 1997, the Shelby Coun ty Grand Jury indicted Defendant Terrence Thomas for the bur glary of a motor v ehicle. On M ay 8, 199 7, the Sh elby Co unty Grand Jury indi cted Defendant Thomas and Defendant Vincent Lasane for burgl ary and the ft of proper ty valued betwe en $10 ,000 an d $60,0 00. I n September of 1997, Defendant Th omas pleaded guilt y to burgla ry of a motor vehicle, and he and Defendant Lasane each pleaded guil ty to two count s of theft of property over

$10,000, each bei ng a Class C felony. Defendant Thomas received an agreed one-year s entence for the burglar

y charge, and each of the De fendan ts received agreed concurrent f our-year sentences for t he thef t charges. The manner of servi ce of the sentences was l eft to t he discret ion of the trialjudge, and each D efenda nt requested probation or ot her alternati ve sentencing options. The trialjudge denied alternative s entencing, ordering that the sen tences be serve d in confin emen t.

Pursuant t o Ru le 3 of t he Tennessee Rules of Appel late Procedur e, the Defen dants now appeal their sentences. Defendant Tho mas presen ts t wo issues forour review: (1) w hether the tri a l court a buse d its disc retion b y den ying h im relief in the form of probation or alternat ive sentenci ng; and (2) whet her the trial court erred by deter mining that his inca rceration would c reate a d eterrent e ffect. Defendant Lasane presents only one issue for our r eview: whether t he trialcourt erred by refu sing to susp end h is sentence. As t o Defenda nt T homas , weaff ir m.-4-

As to Defendant Lasane, we reverse the trialcourt’s senten cing determi nation and remand for proceedi ngs consistent with thi s opinion.
A. Burglary

of a Motor Vehic

le by Defendant Thomas According to Defendant Thomas’ presentence repor t, on October 26, 1996
a woman reported to pol ice that her pocketbook had been taken fr om her car while she was shopping. When an off icer arr ived at t he scene , sh e stated t hat several credit cards and a dri ver’s l icense were in the purse. A witness approached the offi cer and reveal ed that he h ad bee n approached by a black male who had offered to sell him credi t cards. The witness provided t he officer with a descrip tion, and a short wh ile afterwa rds, the o fficer spotted Defendant Thomas, who fit t he descript ion. The off icer stop ped Thomas, patted hi m down,
a nd discover ed th e cre dit card s and t he dr iver’s l icen se in his pocke t. H e arrested Thom as and transpo rted him to jail . Thomas claimed to have found the woman’s purse near a dumpster, where he took the credit cards.

B. Theft of

Property by Def

endant Thomas and Defendant Lasane At his sentenci ng hearing on December 8, 1997, Defend ant Lasane testif ied that

Def enda nt T homas

cal led him at h ome on December 5, 1996 and told him that heknew w here the y could o btain som e shoe s. Lasane, a truc ker, picked Thomas up in his companytru ck, a nd th e twoof them drove to a rail yard. Thomas broke into two train trailers, and he and Lasane loa ded ninety-nin e pairs of new Nike shoes into Lasane’s tr uck. The next day the two of t hem transported the shoes to a str

eet corner i n Memphis and began sel ling them from the back-5-

of the truc k. Las ane te stified th at they had s old approximatel y ten pairs of shoes at a price of

$50 pe r pair befor e the po lice arrived and plac ed them under a rrest.

Lasane testif ied that h e gave a statement to police of ficers whi ch aided Nike in recoveri ng the stol en shoe s. He also testif ied that h e turned over t he money made from the sale of the shoe s to police o fficers on th e day o f his arrest. Howe ver, acc ording to Lasa ne’s presen tence report, w hen aske d by officers where they had gotten the s hoes, Lasane ini tially informed t hem that he had purcha sed the shoes for resale.

I. D EFENDANT THOMAS’SENTENCE Defendant Thomas argues fir st that t he trialcourt abused its discreti on by denying him reli ef in the for m of probation or alternative sentencing. He next argues that the trial co urt erred b y determ ining that h is incarce ration wo uld create
a deterren t effect. Howe ver, as pointed out by the State i n its bri ef, Defendant Thomas has failed to include a copy o f his senten cing hea ring in the re cord. It is the defendant ’s duty to have prepared an adequate record i n orderto al low a meaningful revi ew on app eal. Ten n. R. Ap p. P. 24(b ); State v. Bunch , 646 S.W.2d 158, 16 0 (Tenn . 1983); State v. R oberts , 755 S.W.2d 833, 836 ( Tenn. Cri m. App. 19 88). When no evidenc e is preserved in the record for revi ew, we are p recluded from co nsidering the issue s. Robe rts , 755 S.W.2d at 836. The presentence report does refle ct a prior convicti on for

armed robbery. We must presum e the judg ment o f the trial court is correct.-6- II. DEFENDANT LAS ANE’S SEN TENCE Defendant Lasan e argue s that the tria l court erred by refusin g to suspend his sentence. H e contends that the trial court failed to conside r t he applic able sentencing principl es and factor s enumerated in State v. S mith , 735 S.W.2d 859 (Ten n. Crim . App. 1 987). H e poin ts out b oth his lack of c rimina l record and h is feelings of remorse and i nsists t hat he “is an excellent candidate for rehabilitation .” He requ ests relief in th e form o f partial, if not full, pro bation.

When an accused chall enges the lengt h, range, or manner of service of

a sentence, this Court

has a duty to con duct a de novo review of t he senten ce with
a presumption that the determinati ons made by the trialcourt are cor rect. Tenn. Code Ann. § 40-3 5-401(d). This presumpti on is “condi tioned upon the affirmati ve showing in the record that the trial court considered t he sentencing principl es and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 199 1).

When conducting a de novo review of a s entenc e, this Court must consider: (a) the evi dence, if any, recei ved at the trial and sentencing hearing; (b) the p resen tence re port; (c) the p rinciples o f sentenc ing and argum ents as to sentencing alternat ives; (d)the nature and characteristi cs of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and ( g) the potent ial or l ack of potentialfor rehab ilitation or treatm ent. State v. S mith , 735 S.W.2d 859, 863 (Tenn. C rim. App . 1987); T enn. C ode An n. §§ 40-35-102, - 103, -210.-7- If our review r

eflects that the t rial cour

t foll owed the sta tutory sentencing procedure, that the court imposed a l awful sentence after havi ng given due considerati on and proper weight to the fac

tors and pri nciples set out under the sentencing law, and that th e trialcourt’s findings of fact are adequately supported by therecord , t hen w e may not mo dify thesen tence even if we would have preferreda different re sult. State v. Fl etcher , 805 S.W.2d 785, 789 (Te nn. Cri m. App. 1991 ).

General ly, a defendant “who i s an especially mitigated or stan dard offende r convicted of a Clas s C, D o r E felony is presum ed to be a favorable candidate for alternativesentencing opt ions in absence of evidence to the contrar y.” Tenn. Code Ann. § 40-35-102( 6). The grant ing or denial of probati on rests wit hin the sound discreti on of the trial judg e. State v. Mitch ell , 810 S.W.2d 733, 735 (Tenn. Cri m. App. 19 91). Under Tennessee law, a defendant is el igiblefor probat ion if the sentence im posed is eigh t years or less, and “probati on shall beautom atically considered by the court as a sentencinga lternative fo r eligible defe ndants .” Tenn. Code Ann. § 40-35-303(a), (b). However, “even though probation must be autom atically considered as a s entencing op tio n for eli gible defendants, the defendantis not auto matica lly entitl ed to pr obation as a matter of law. ” Tenn. Code Ann. § 40-35-303( b) (senten cing com mission comm ents); State v. Hart ley , 818 S.W.2d 370, 373 (Te nn. Crim . App. 19 91). The defendant bears the burden of demonstratinghis suitabilit y for probat ion. Tenn. Code Ann. § 40-3 5-303(b).-8- Tennessee Cod e Anno tated § 40-35- 103(1) provi des guidance for determining what factors are to be considered in alternat ive sentences: Sentences involvin g con finem ent sh ould be based on the fol lowing considerations: (A) Confin eme nt is ne cess ary to p rotect s ocie ty by restra in ing a defen dant w ho has a long his tory of crim inal cond uct; (B) Confinement is necessary to avoid depreciati ng the seriousness of the of fen se or con fineme nt is particula rly suited to prov ide an effect ive deterr ent to other

s likel y to commit simi lar offenses; or (C) Measures less restrictive than confinement have frequen tly or recen tly been a pplied to th e defen dant. Tenn. Code Ann. § 4 0-35-10 3(1)(A)-(C ); see State v. Ashby 823 S.W.2d 166, 169 (Tenn. 1991). A court may also apply t he mitigat ing and enhancing factors s et forth in Tennessee Code Annotat ed §§ 40-35-113 and -114 as they are re levant to the § 40- 35-103 conside rations. Te nn. Co de Ann . 40-35-2 10(b)(5) ; State v . Zeolia , 928 S.W.2d 457, 461 (Tenn . Crim. App. 19 96). “Finally, the pot ential o r lackof potenti al for r ehabili tation of

a defendant shoul d be c onsid ered in determining whether he s ho uld be granted an alternative sen tence.” State v. Boston , 938 S.W.2d 435, 438 ( Tenn. Crim. App. 199 6); Tenn. Code Ann. §40- 35-103(5).

As a standa rd offend er conv icted of a Class C felony, Defendant Lasane is presum ed to be a favor able candidate for alternative s entencing opt ions absent evidence to the cont rary. At his sentenci ng hearing, Las ane testi fied that he was twenty-ni ne years old at theti me of sentenci ng and that he had been empl oyed
as a tr uck driver

for nineyears. Hestated th at he had been gainful ly employed since gradu ating fro m hig h sch ool. Lasane furt her testi fied that he was married-9-

and had five chi ldren, t wo of whom lived wit h him. He reported that he suppor ted all five children , paying c hild supp ort for the thre e children who d id not live w ith him; and he maintained t hat he was curren t on his child supp ort payments at the ti me of se ntencing. Lasane’s presentence report r eveals that

he has no prior criminal record, wi th the exception of a warning for

disturbi ng the peace while he
was a juv enile i n 1985. The presentence report al so reveals t hat no enhancement factors wer e discovered during the cour se of the pre sentence investiga tion.

The trialjudge based his denial of alternat ive sentenci ng on the need for deterrence and the circums tances of the offen se. The nature and characteristi cs of the crim inal co nduc t involve d are fa ctors th at are lo gically related to the issue of depreciati ng the seri ousness of the of fense. State v. Hartley , 818 S.W.2d 370, 375 (Tenn. C rim. App . 1991). W hen the se fa ctors se rve as the onl y basis for denying probation, the na ture and cha racteri stics of the offens e must be “espe cially violent, horrifying, s hocking , reprehe nsible, offe nsive, or otherwise of
an excessive or

exagg erated degree, ” outweighi ng all ot her factor s favorin g probation. State v. Trav is , 622 S.W .2d 52 9, 534 (Tenn . 1981 ) (emp hasis added); see also Hartley , 818 S.W.2d at 375.

Even though a Class C fel ony theft may be a quite seri ous offense, the legislature has pro vided tha t the presu mpti on of eligibi lity for alternative sentencing option s app lies to th is offen se. Th e burd en is on the State to pr esent-10-

suffic ientevidence t o overcome this pr esumption, and t he burden may be a heavy one w hen the defend ant has no history of crimina l conduc t.

The trialjudge apparent ly beli eved that Defendant Lasane should receive the same sentence as Defen dant Th omas . The judg e said to Lasan e, “You b oth did the same thing, the same way, at t he same time.” As we have noted, Defendant Thomas had a prior co nvic tion for armed robbery, whi le Defendant Lasane has no prior convictions.

From our review of t he record, we must conc lude that the tri al court err ed by not granti ng some form of alternative s entencing i n this case. Viewing the record as a whole and con sideri ng Defendant Lasane’ s favorabl e record and work history, we conclude that the State has not overcome the pr esumption that Lasane is a favorable candidate f or alternati ve sentencing. Because he is a first offender, we believe probat ion is appr opriate.

Based on the forego ing co nside rations , we re verse the trial c ourt’s sentencing determinati on for Defendant Lasane, and remand for placement on probation, subje ct to su ch rea sona ble co ndition s as th e trial judge shall determine. The s entences for Defendant Thomas are aff irmed.

____________________________________ DAVID H. WELL ES, J UDGE-11-

CONCUR:

___________________________________ THOMAS T. WOODALL, JUDGE

___________________________________ NORMA McGEE O GLE, J UDGE