State of Tennesse v. Samuel Lamb, Jr.

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
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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."
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"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
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CONCUR:
______________________________________
GARY R. WADE, Presiding Judge
______________________________________
JERRY L. SMITH, Judge
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