State v. Vincent Lasane/Terrence Thomas ( 2010 )

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.
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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 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
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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.
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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.
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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 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).
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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 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
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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
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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
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CONCUR:
___________________________________
THOMAS T. WOODALL, JUDGE
___________________________________
NORMA McGEE OGLE, JUDGE
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