        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                          JUNE SESSION, 1999
                                                  FILED
                                                   August 5, 1999
STATE OF TENNESSEE,          )     C.C.A. NO. 02C01-9712-CR-00474
                                                Cecil Crowson, Jr.
                             )                 Appellate Court Clerk
      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 COUN TY



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
LESL IE I. BAL LIN                 425 Fifth Avenu e 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
DAVID H. WELLES, JUDGE




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                                 OPINION

      The Defen dants appeal from the sentences ordered by the trial court. 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 indicted Defendant Thomas and Defendant Vincent Lasane for

burglary and the ft of proper ty valued betwe en $10 ,000 an d $60,0 00.            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

Defendan ts 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 sen tences be serve d in confin emen t.




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

Defen dants now appeal their sentences. Defendant Thomas presen ts two issues

for our review: (1) w hether the trial court a buse d its disc retion b y den ying h im

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

erred by refu sing to susp end h is sentence. As to Defendant Thomas, we affirm.


                                          -3-
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 descrip tion, and a short wh ile afterwa rds, 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 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 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 w here the y could o btain som e shoe s. Lasane, a truc ker,

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 loa ded ninety-nin e 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


                                       -4-
of the truc k. Las ane te stified th at they had s old approximately 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 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 shoe s to police o fficers on th e day o f his arrest.

Howe ver, according to Lasa ne’s presen tence report, w hen aske d by officers

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

purcha sed 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 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 in its brief, 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 in order to allow a

meaningful review on appeal. 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.

Crim. App. 19 88). When no evidenc e is preserved in the record for review, we

are precluded from co nsidering the issue s. Robe rts, 755 S.W.2d at 836. The

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

presum e the judg ment o f the trial court is correct.




                                           -5-
                     II. DEFENDANT LASANE’S SENTENCE

       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 the applic able

sentencing principles and factors 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 insists that 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 challenges the length, range, or manner of service of a

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

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

Code Ann. § 40-3 5-401(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 circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 199 1).




       When conducting a de novo review of a sentenc e, this Court must

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

the presentence re port; (c) the p rinciples o f sentenc ing and argum ents 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 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.


                                            -6-
      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 re sult. 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 Clas s C, D o r 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 judg e. State v. Mitch ell, 810 S.W.2d 733, 735 (Tenn.

Crim. App. 19 91). Under Tennessee law, a defendant is eligible for probation if

the sentence im posed is eigh t years or less, and “probation shall be autom atically

considered by the court as a sentencing alternative fo r eligible defe ndants .”

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 auto matica lly entitled to probation as a matter of law.” Tenn.

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

818 S.W.2d 370, 373 (Te nn. Crim . App. 19 91). The defendant bears the burden

of demonstrating his suitability for probation. Tenn. Code Ann. § 40-3 5-303(b).




                                         -7-
      Tennessee Code Annotated § 40-35-103(1) provides guidance for

determining what factors are to be considered in alternative sentences:

      Sentences involvin g con finem ent sh ould be based on the following
      considerations:
            (A) Confin eme nt is ne cess ary to p rotect s ociety by restraining
      a defen dant w ho has a long his tory of crim inal cond uct;
            (B) Confinement is necessary to avoid depreciating the
      seriousness of the offense or con fineme nt is particula rly suited to
      provide an effective deterrent to others likely to commit similar
      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 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 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 potential or

lack of potential for rehabilitation of a defendant should be consid ered in

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

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

35-103(5).




      As a standa rd offend er conv icted 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 gradu ating fro m hig h sch ool. Lasane further testified that he was married



                                         -8-
and had five children, two of whom lived with him. He reported that he supported

all five children , paying c hild supp ort for the thre e children who d id not live w ith

him; and he maintained that he was curren t on his child supp ort 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

investiga tion.




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

deterrence and the circums tances of the offen se. The nature and characteristics

of the crim inal co nduc t involve d are fa ctors th at are lo gically related to the issue

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

375 (Tenn. C rim. App . 1991). W hen the se factors serve as the only basis for

denying probation, the na ture and characteristics of the offense must be

“espe cially violent, horrifying, s hocking , reprehe nsible, offe nsive, or otherwise of

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

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 felony theft may be a quite serious offense, the

legislature has pro vided tha t the presu mption of eligibility for alternative

sentencing option s app lies to th is offen se. Th e burd en is on the State to present




                                           -9-
sufficient evidence to overcome this presumption, and the burden may be a

heavy one w hen the defend ant has no history of crimina l conduc t.




      The trial judge apparently believed 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 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 forego ing co nside rations , we re verse the trial c ourt’s

sentencing determination 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 sentences for Defendant Thomas are affirmed.




                                ____________________________________
                                DAVID H. WELLES, JUDGE



                                      -10-
CONCUR:




___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




                             -11-
