FILED

August 5, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL 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 JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANTS: FOR THE APPELLEE:

DEWUN R. SETTLE PAUL G. SUMMERS

Attorney for Terrence L. Thomas Attorney General and Reporter

67 Madison, Suite 210

Memphis, TN 38103 PATRICIA C. KUSSMANN

Assistant Attorney General

LESLIE I. BALLIN 425 Fifth Avenue North

MARK A. MESLER Nashville, TN 37243

Attorneys for Vincent Lasane

200 Jefferson Avenue, Suite 1250 WILLIAM GIBBONS

Memphis, TN 38103 District Attorney General

ROSEMARY ANDREWS

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED IN PART; REVERSED AND REMANDED IN PART
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DAVID H. WELLES, JUDGE
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OPINION

The Defendants appeal from the sentences ordered by the trial court. On

April 24, 1997, the Shelby County Grand Jury indicted Defendant Terrence

Thomas for the burglary of a motor vehicle. On May 8, 1997, the Shelby County

Grand Jury indicted Defendant Thomas and Defendant Vincent Lasane for

burglary and theft of property valued between $10,000 and $60,000. In

September of 1997, Defendant Thomas pleaded guilty to burglary of a motor

vehicle, and he and Defendant Lasane each pleaded guilty to two counts of theft

of property over $10,000, each being a Class C felony. Defendant Thomas

received an agreed one-year sentence for the burglary charge, and each of the

Defendants received agreed concurrent four-year sentences for the theft

charges. The manner of service of the sentences was left to the discretion of the

trial judge, and each Defendant requested probation or other alternative

sentencing options. The trial judge denied alternative sentencing, ordering that

the sentences be served in confinement.

Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the

Defendants now appeal their sentences. Defendant Thomas presents two issues

for our review: (1) whether the trial court abused its discretion by denying him

relief in the form of probation or alternative sentencing; and (2) whether the trial

court erred by determining that his incarceration would create a deterrent effect.

Defendant Lasane presents only one issue for our review: whether the trial court

erred by refusing to suspend his sentence. As to Defendant Thomas, we affirm.
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As to Defendant Lasane, we reverse the trial court’s sentencing determination

and remand for proceedings consistent with this opinion.

A. Burglary of a Motor Vehicle by Defendant Thomas

According to Defendant Thomas’ presentence report, on October 26, 1996

a woman reported to police that her pocketbook had been taken from her car

while she was shopping. When an officer arrived at the scene, she stated that

several credit cards and a driver’s license were in the purse. A witness

approached the officer and revealed that he had been approached by a black

male who had offered to sell him credit cards. The witness provided the officer

with a description, and a short while afterwards, the officer spotted Defendant

Thomas, who fit the description. The officer stopped Thomas, patted him down,

and discovered the credit cards and the driver’s license in his pocket. He

arrested Thomas and transported 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 Defendant Thomas and Defendant Lasane

At his sentencing hearing on December 8, 1997, Defendant Lasane

testified that Defendant Thomas called him at home on December 5, 1996 and

told him that he knew where they could obtain som e shoes. Lasane, a trucker,

picked Thomas up in his company truck, and the two of them drove to a rail yard.

Thomas broke into two train trailers, and he and Lasane loaded ninety-nine pairs

of new Nike shoes into Lasane’s truck. The next day the two of them transported

the shoes to a street corner in Memphis and began selling them from the back
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of the truck. Lasane testified that they had sold approximately ten pairs of shoes

at a price of $50 per pair before the police arrived and placed them under arrest.

Lasane testified that he gave a statement to police officers which aided

Nike in recovering the stolen shoes. He also testified that he turned over the

money made from the sale of the shoes to police officers on the day of his arrest.

However, according to Lasane’s presentence report, when asked by officers

where they had gotten the shoes, Lasane initially informed them that he had

purchased the shoes for resale. 

I. DEFENDANT THOMAS’ SENTENCE

Defendant Thomas argues first that the trial court abused its discretion by

denying him relief in the form of probation or alternative sentencing. He next

argues that the trial court erred by determining that his incarceration would create

a deterrent effect. However, as pointed out by the State in its brief, Defendant

Thomas has failed to include a copy of his sentencing hearing in the record. It

is the defendant’s duty to have prepared an adequate record in order to allow a

meaningful review on appeal. Tenn. R. App. P. 24(b); State v. Bunch, 646

S.W.2d 158, 160 (Tenn. 1983); State v. Roberts, 755 S.W.2d 833, 836 (Tenn.

Crim. App. 1988). When no evidence is preserved in the record for review, we

are precluded from considering the issues. Roberts, 755 S.W.2d at 836. The

presentence report does reflect a prior conviction for armed robbery. We must

presum e the judgment of the trial court is correct.
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II. DEFENDANT LASANE’S SENTENCE

Defendant Lasane argues that the trial court erred by refusing to suspend

his sentence. He contends that the trial court failed to consider the applicable

sentencing principles and factors enumerated in State v. Smith, 735 S.W.2d 859

(Tenn. Crim. App. 1987). He points out both his lack of criminal record and his

feelings of remorse and insists that he “is an excellent candidate for

rehabilitation.” He requests relief in the form of partial, if not full, probation. 

When an accused challenges the length, range, or manner of service of a

sentence, this Court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).

When conducting a de novo review of a sentence, this Court must

consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b)

the presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehabilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863

(Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.
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If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991).

Generally, a defendant “who is an especially mitigated or standard offender

convicted of a Class C, D or E felony is presum ed to be a favorable candidate for

alternative sentencing options in absence of evidence to the contrary.” Tenn.

Code Ann. § 40-35-102(6). The granting or denial of probation rests within the

sound discretion of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.

Crim. App. 1991). Under Tennessee law, a defendant is eligible for probation if

the sentence imposed is eight years or less, and “probation shall be automatically

considered by the court as a sentencing alternative for eligible defendants.”

Tenn. Code Ann. § 40-35-303(a), (b). However, “even though probation must be

autom atically considered as a sentencing option for eligible defendants, the

defendant is not automatically entitled to probation as a matter of law.” Tenn.

Code Ann. § 40-35-303(b) (sentencing com mission comm ents); State v. Hartley,

818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). The defendant bears the burden

of demonstrating his suitability for probation. Tenn. Code Ann. § 40-35-303(b).
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Tennessee Code Annotated § 40-35-103(1) provides guidance for

determining what factors are to be considered in alternative sentences:

Sentences involving confinement should be based on the following

considerations:

(A) Confinement is necessary to protect society by restraining

a defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the

seriousness of the offense or confinement is particularly suited to

provide an effective deterrent to others likely to commit similar

offenses; or

(C) Measures less restrictive than confinement have

frequently or recently been applied to the defendant. 

Tenn. Code Ann. § 40-35-103(1)(A)-(C); see State v. Ashby 823 S.W.2d 166, 169

(Tenn. 1991). A court may also apply the mitigating and enhancing factors set

forth in Tennessee Code Annotated §§ 40-35-113 and -114 as they are relevant

to the § 40-35-103 considerations. Tenn. Code Ann. 40-35-210(b)(5); State v.

Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). “Finally, the potential or

lack of potential for rehabilitation of a defendant should be considered in

determining whether he should be granted an alternative sentence.” State v.

Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996); Tenn. Code Ann. § 40-

35-103(5).

As a standard offender convicted of a Class C felony, Defendant Lasane

is presumed to be a favorable candidate for alternative sentencing options absent

evidence to the contrary. At his sentencing hearing, Lasane testified that he was

twenty-nine years old at the time of sentencing and that he had been employed

as a truck driver for nine years. He stated that he had been gainfully employed

since graduating from high school. Lasane further testified that he was married
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and had five children, two of whom lived with him. He reported that he supported

all five children, paying child support for the three children who did not live with

him; and he maintained that he was current on his child support payments at the

time of sentencing. Lasane’s presentence report reveals that he has no prior

criminal record, with the exception of a warning for disturbing the peace while he

was a juvenile in 1985. The presentence report also reveals that no

enhancement factors were discovered during the course of the presentence

investigation. 

The trial judge based his denial of alternative sentencing on the need for

deterrence and the circumstances of the offense. The nature and characteristics

of the criminal conduct involved are factors that are logically related to the issue

of depreciating the seriousness of the offense. State v. Hartley, 818 S.W.2d 370,

375 (Tenn. Crim. App. 1991). When these factors serve as the only basis for

denying probation, the nature and characteristics of the offense must be

“especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of

an excessive or exaggerated degree,” outweighing all other factors favoring

probation. State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981) (emphasis added);

see also Hartley, 818 S.W.2d at 375.

Even though a Class C felony theft may be a quite serious offense, the

legislature has provided that the presumption of eligibility for alternative

sentencing options applies to this offense. The burden is on the State to present
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sufficient evidence to overcome this presumption, and the burden may be a

heavy one when the defendant has no history of criminal conduct.

The trial judge apparently believed that Defendant Lasane should receive

the same sentence as Defendant Thomas. The judge said to Lasane, “You both

did the same thing, the same way, at the same time.” As we have noted,

Defendant Thomas had a prior conviction for armed robbery, while Defendant

Lasane has no prior convictions.

From our review of the record, we must conclude that the trial court erred

by not granting some form of alternative sentencing in this case. Viewing the

record as a whole and considering Defendant Lasane’s favorable record and

work history, we conclude that the State has not overcome the presumption that

Lasane is a favorable candidate for alternative sentencing. Because he is a first

offender, we believe probation is appropriate.

Based on the foregoing considerations, we reverse the trial court’s

sentencing determination for Defendant Lasane, and remand for placement on

probation, subject to such reasonable conditions as the trial judge shall

determine. The sentences for Defendant Thomas are affirmed.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

NORMA McGEE OGLE, JUDGE