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.
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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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