            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           MAY SESSION, 1998         FILED
                                                     August 5, 1998

                                                Cecil W. Crowson
STATE OF TENNESSEE,         )
                                              Appellate Court Clerk
                            )    No. 01C01-9703-CC-00095
      Appellee              )
                            )    MARSHALL COUNTY
vs.                         )
                            )    Hon. CHARLES LEE, Judge
SAMUEL L. LAMB, JR.,        )
                            )    (Sentencing)
      Appellant             )



For the Appellant:               For the Appellee:

James Robin McKinney, Jr.        John Knox Walkup
Suite 103                        Attorney General and Reporter
214 Second Avenue North
Nashville, TN 37201              Karen M. Yacuzzo
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 William Michael McCown
                                 District Attorney General

                                 Weakley E. Barnard
                                 Asst. District Attorney General
                                 Marshall County Courthouse
                                 Lewisburg, TN 37091




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                 OPINION



       The appellant, Samuel L. Lamb, Jr., appeals as of right the sentencing

decision of the Marshall County Circuit Court. Pursuant to a plea agreement, the

appellant pled guilty to three counts of theft of property and received an effective

five year sentence.1 Following a sentencing hearing, the trial 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 program. In this appeal, the

appellant contends that the trial court erred by denying full probation or placement in

community corrections.



       After review, we affirm.



                                                 Background



       On May 8, 1996, the appellant, age 22, and his wife, Jennifer Lamb, age 19,

residents of Davidson County, accompanied by Donald Maxey, Jr. and Donna

Maxey, traveled to Columbia, Tennessee, for the purpose of committing thefts. The

four entered Wal-Mart, where they stole numerous electronic items, including VCRs

and camcorders. After loading the stolen items into the trunk of the appellant’s car,

they proceeded to K-Mart where they repeated the same procedure. Later that

evening, the group stopped at a local park to view the stolen merchandise.

Detective David Copeland of the Lewisburg Police Department approached the four.

None could produce valid identification. The detective noticed several new boxes of

Magnavox VCRs in the vehicle as well 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 appellant said he




       1
           The a ppellant w as origina lly charged w ith four cou nts of the ft of prope rty.

                                                       2
had taken it from the dock at the back of the Wal-Mart store in Lewisburg. 2

Detective Copeland advised the appellant that there was no dock at the W al-Mart in

Lewisburg.



       Upon further questioning at the Lewisburg Police Department, the appellant

related an entirely different story. The appellant told the detective that he and his

wife did not go to the stores on the night in question because they were visiting his

wife’s grandfather. Eventually, however, the appellant admitted that he, his wife,

and the Maxeys were all equally guilty of the thefts. The appellant later pled guilty

to two counts of class E theft and 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 that he was currently

working for the TVA Steam Plant in Gallatin and had maintained this position for

three weeks as of the date of the sentencing hearing. He admitted that he had

previously been placed on probation, following a charge for burglary which was later

reduced to criminal trespass. When asked if he had ever been known under

another name, the appellant invoked his fifth amendment right against self-

incrimination. He further stated that he dropped out of school in the tenth grade and

had made no attempt to pursue his G.E.D. He testified that he was arrested for

public intoxication while out on bond pending resolution of the charges in the

present case. He also remarked that he was aware that his wife was on probation

when the two committed these offenses. The appellant was sentenced to

concurrent two year sentences for the two class E felony convictions, to run

consecutive to the three year 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 jail followed by placement in the local community corrections

program.


       2
           A total of $2 ,745.66 in stolen m erchan dise was recove red from the vehicle .

                                                    3
                                        Analysis



       In this appeal, the appellant contends that the trial court failed to “give the

Defendant the presumption of alternative sentencing,” and improperly shifted to the

appellant the burden of establishing entitlement 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 is correct. Tenn. Code

Ann. § 40-35-401(d)(1990). This presumption only applies, however, if the record

demonstrates that the trial court properly considered 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 sentencing, the presentence report,

the arguments of counsel, the nature and characteristics of the offense, any

mitigating and enhancement factors, the appellant’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 imposed was improper. Sentencing 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 inquiry as to the appropriate sentence for Mr. Lamb with the

presumption that he is entitled to alternative sentencing.” Notwithstanding the

presumption granted the appellant, the trial court appropriately reviewed the

sentencing evidence to determine (1) whether the presumption was rebutted by

“evidence to the contrary,” Tenn. Code Ann. § 40-35-102(6) and (2) whether the

appellant’s previous criminal history and failure of past efforts at rehabilitation


                                          4
stripped him of entitlement to the presumption. Tenn. Code Ann. § 40-35-102(5)

and (6). “Convicted felons committing the most severe offenses, possessing

criminal histories evincing a clear disregard for the laws and morals of society, and

evincing failure of past efforts at rehabilitation” are not entitled to the presumption for

alternative sentencing options. Tenn. Code Ann. § 40-35-102(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 court found that the State presented “evidence to the contrary,”

thus, rebutting the appellant’s entitlement to the statutory presumption for an

alternative sentence. The record supports this finding and the trial court’s

application of the law.



                                B. Probation and Burden of Proof

        Next, the appellant argues that the trial court should have granted a non-

incarcerative sentence of either “straight probation” or placement in a community

corrections program. In support of this position, he contends that the court erred in

holding “that the burden was on the Defendant to show the Court that he was

entitled to be granted probation.” In State v. Bingham, 910 S.W.2d at 455-456, this

court distinguished between the burden of proof for presumption of an alternative

sentence and probation:

        It should be pointed out that determining whether a defendant is
        entitled to an alternative sentence necessarily requires a separate
        inquiry from that of determining whether the defendant is entitled to full
        probation. This is so because the inquiries involve different burdens of
        proof. Where a defendant is entitled to the statutory presumption of
        alternative sentencing, the State has the burden of overcoming the
        presumption with evidence to the contrary. Conversely, the defendant
        has the burden of establishing suitability for full probation, even if the
        defendant is entitled to the statutory presumption of alternative
        sentencing. See Tenn. Code Ann. § 40-35-303(b)(1994 Supp).[3]
        There is no bright line rule for determining when probation should be
        granted. To meet the burden of establishing suitability for full
        probation, the defendant must demonstrate that probation will


        3
         This provision provides that "nothing in this chapter shall be construed as altering any
provision of present statutory or case law requiring that the burden of establishing suitability for
probation rests with th e defen dant."

                                                   5
       "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 corrections, the trial

court found:

       The defendant has demonstrated to the court failures of past efforts of
       past rehabilitation. . . . Within two years from the completion of his
       prior probation he is committing not one, not two but three additional
       felonies in two jurisdictions. Perhaps worse than that is the fact that
       the defendant knew that he had an accomplice with him, his wife, who
       was also on probation for exactly the same offense. And assisted and
       aided and abetted her in the commission of these felonies while she
       was on probation.
       ...

       . . . he does not think that the officials 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 history and
       certainly not one that speaks well for him.


These findings are supported by the record. This issue is without merit.


       Upon de novo review, we find that, based upon the nature and circumstances

of the criminal conduct involved and because measures less restrictive than

confinement have proven to be unsuccessful, 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 court is affirmed.




                              ____________________________________
                                         DAVID G. HAYES, Judge

                                             6
CONCUR:



______________________________________
GARY R. WADE, Presiding Judge



______________________________________
JERRY L. SMITH, Judge




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