        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                       DECEMB ER SESSION, 1998         January 29, 1999

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,            )   C.C.A. NO. 03C01-9708-CC-00346
                               )
      Appellee,                )
                               )
                               )   HAMBLEN COUNTY
VS.                            )
                               )   HON. JAMES E. BECKNER
MICKEY LAMB,                   )   JUDGE
                               )
      Appe llant.              )   (Direct Appeal - Possession of
                               )   Controlled Substance)



FOR THE APPELLANT:                 FOR THE APPELLEE:

WILLIAM L. BROWN                   JOHN KNOX WALKUP
706 Walnut Street, Suite 902       Attorney General and Reporter
Knoxville, TN 379092
                                   GEORGIA BLYTHE FELNER
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243-0493

                                   C. BERKELEY BELL
                                   District Attorney General

                                   JOHN DUGGER
                                   Assistant District Attorney
                                   510 Allison Street
                                   Morristown, TN 37814



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       On August 1, 1997 , Appella nt Micke y Lamb pleade d guilty to three co unts

of possession of a controlled substance with inte nt to se ll and to thirte en cou nts

of delivery of a controlled substance. After a sentencing hearing that same d ay,

Appellant received an e ffective sentence o f eight years. The trial court denied

Appe llant’s request that he be placed on probation for the entire sentence.

Appellant challenges the trial court’s denial of probation. After a review of the

record, w e affirm the judgm ent of the tria l court.



                                         FACTS




       Acco rding to the evidence presented at the sentencing hearing, Agent Mike

Long of the T hird Ju dicial D istrict Dr ug T ask F orce p aid Ap pellan t appro ximate ly

$2,800.00 for the purchase of controlled substances at Appellant’s place of

business on nine different occasions between October 30, 1996, and December

23, 1996.    During the execution of a search warrant at Appellant’s place of

business on De cem ber 30 , 1996 , law en forcem ent offic ials discovered ninety- six

morphine tablets, thirty-eight oxycodone tablets, thirty-three dihydrocodeinone

tablets, an d $847 .00 in cas h.




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                                             ANALY SIS




        Appellant contends tha t the trial court erred w hen it d enied his request for

probation.1 We disagree.



        When a defendant challenges the manner of his or her s enten ce, this

Court must conduct a de novo review with the presumption that the determination

made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). This

presumption only ap plies, h owev er, if the re cord s hows that the trial court

prope rly considered relevant se ntencing principles . State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). A review of the record indicates that this presumption is

applicable in this case.



        Under Ten ness ee law , a defe ndan t is eligible for probation if the sentence

imposed is eight years or less. Further, the trial court is required to consider

probation as a se ntenc ing alte rnative for eligib le defendants. Tenn. Code Ann.

§ 40-35-303(a)–(b) (1997).                 However, even though probation must be

autom atically considered, “the defendant is not automatically entitled to probation

as a matter of law.”           Tenn. Code Ann. § 40-35-303(b) (1997) (Sentencing

Com miss ion Comm ents); State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.

App. 1991). Indeed, a defendant seeking full probation bears the burden on

appeal of show ing tha t the se ntenc e actu ally imp osed is impr oper a nd tha t full

probation will be in both the best intere st of the de fendan t and the p ublic. State

v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995). When determining


        1
          We note that our review on appeal is limited to the narrow question presented by Appellant of
whether the trial court erred when it denied Appellant’s request for full probation. Accordingly, this opinion
does n ot addre ss the a ppropria teness of other s entenc ing alternative s.

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suitability for probation, the sentencing court considers the following factors: (1)

the nature and circumstances of the criminal conduct involved;                                         (2) the

defen dant’s potential or lack of po tential for reh abilitation, inclu ding the ris k that,

during the period of probation, the defendant will commit another crime; (3)

whether a sentence of full probation would unduly depreciate the seriousness of

the offense; and (4) whether a sentence other than full probation would provide

an effective deterrent to othe rs likely to com mit similar crimes. Tenn. Code Ann.

§§ 40-35-2 10(b)(4) , -103(5), -1 03(1)(B ) (1997 & Supp. 1 998); Bingham, 910

S.W .2d at 456 (citations o mitted).



         The record indicates that the trial court based its decision to deny probation

on both the circumstances of the criminal conduct and the need to d eter others

from committing drug related offenses. 2 We conclude that the trial cou rt prop erly

determined that the circumstances of Appellant’s offenses indicated that

probation was n ot app ropria te. Inde ed, the trial cou rt noted that Ap pellant had

not been convicted of an isolated incident, but rather, had been convicted of

sixteen different drug related offenses that took place over a two month period.

The trial court concluded that the fac t that Ap pellan t contin ued to enga ge in

criminal conduct after having time to reflect on the wrongfulness of that conduct

weighed against a grant of pr obation . In addition, the fact that Appellant had 167

tablets of variou s con trolled s ubsta nces in his po sses sion when the search

warrant was exec uted indicates that he was engaged in more than just a few

casual criminal transactions.

         2
          The record also indicates that in mak ing its determination to deny probation, the trial court
recognized that Appellant did not have a prior criminal record and that Appellant had some potential for
rehabilitation. The trial court concluded, however, that these considerations were outweighed by the
circumstances of the offenses and the need for deterrence. The court also noted that Appellant had been
sho wn a grea t dea l of len ienc y whe n he w as s ente nce d to a term of eig ht yea rs ra ther th an th e sev enty-
two years that the law a llows.

                                                       -4-
      W e also conclud e that the trial court properly determined that denial of

probation was ne cessar y in order to deter oth ers from comm itting drug re lated

offenses. This Court has stated that the general rule regarding deterrence is that

“[b]efore a trial court can deny alternative sentencing on the ground of

deterrence, there must be som e evid ence contained in the record that the

sentence imposed will have a deterrent effect within the jurisdiction.” Bingham,

910 S.W.2d at 455.      However, this Court has held that the sale or use of

narco tics is “deterrable per se,” even in the absence of a record demonstrating

a need fo r deterren ce. State v. Dykes, 803 S.W.2d 250, 260 (Tenn. Crim. App.

1990). Thus, the trial court properly denied Appellant’s request for probation

based on the ne ed to de ter drug re lated offen ses. See id. See also State v.

Keith A. Jackson, No. 02C01-9705-CR-00193, 1998 WL 148330, at *3 (Tenn.

Crim. App., Jackson, April 1, 1998) (upholding denial of probation because sale

of narcotics is deterrab le per se); State v. Timothy S. Myrick, No. 02C01-9512-

CC-00368, 1997 WL 11288, at *2–3 (Tenn. Crim. App., Jackson, Jan. 15, 1997)

(upholding denial of alternative sentencing because sale of na rcotics is dete rrable

per se).



      In short, w e hold that the trial court properly denied Appellant’s request for

probation based on the circumstances of the offenses and the need to deter

others from committing drug related offenses. Accordingly, the judgment of the

trial court is AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE




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CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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