The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER SESSION, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9509-CR-00286
)
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. WILLIAM H. WILLIAMS
JIMMIE L. ALLEN,
a/k/a JIMMIE L. ALEXANDER
Appellant.
)
)
)
JUDGE
(Direct Appeal)
FILED
April 28, 1997
FOR THE APPELLANT: Cecil Crowson, Jr.
FOR THE APPELLEE:
Appellate C ourt Clerk
MICHAEL J. GATLIN CHARLES W. BURSON
P. O. Box 27331 Attorney General and Reporter
Memphis, TN 38167-0331
CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
REGINALD R. HENDERSON
Assistant District Attorney
201 Poplar Avenue
3rd Floor
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appellant Jimmie L. Allen appeals the trial court’s denial of his petition for
a placement in a community correction program. After a careful review of the
record we find no reversible error and affirm the judgment o f the trial court.
Appellant was o riginally indicted for 14 counts of cocaine possession and sales
allege dly occurring in August and September of 1994. Pursuant to a negotiated
plea agreement Appellant pled guilty to a charge of solicitation to commit a felony
and four cha rges of felo ny poss ession o f more th an .5 grams of cocaine. As p art
of the plea agreement Appellant accepted an effective sentence of nine years in
the Department of Correction as a Range I standard offender. The issue of
suspension of the sentence was submitted to the trial court. Appellant was
denied a suspended sentence and requested in the alternative that he be placed
on comm unity corrections pursuant to Tenn. Code Ann. S ec. 40-3 6-101, et seq.
The trial judge declined to place Appellant on community corrections and ordered
him to se rve his sen tence in th e peniten tiary.
When an appea l challenges the len gth, range, or m anner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d)
(1990). However, this presumption of correctness is “conditioned upon the
affirmative showing that the trial court in the record considered the sentencing
principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In the event that the record fails to demonstrate such
consideration, review of the s enten ce is purely de novo. Id. If appellant review
reflects that the trial court properly con sidered all relevant facto rs and its findings
of fact are adequately supported by the record, this Court must affirm the
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sentence, “even if we wo uld have preferred a different result.” State v. Fletcher,
805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In conducting a re view, this Court
must consider the evidence, the presentence report, the sentencing principles,
the argume nts of counse l, the nature and character of the offense, mitigating and
enhancement factors, any statements made by the defendant, and the potential
for rehabilitation or treatm ent. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim.
App. 1993). The defendant bears the burden of showing the improp riety of the
sentence imposed. State v. Grego ry, 862 S.W.2d 574, 578 (Tenn. Crim. App.
1993).
At the time Appellant committed the offenses in this case he was on
probation from a conviction for attempted aggravated robbery. He also had a
previous theft conviction. Aggra vated robbe ry by its very definition involves the
use of a real weapon, a facsimile of a deadly weapon, or involve s serio us bo dily
injury to the victim . See. T enn. Code Ann. Sec. 39-13-402. Tenn. Code Ann.
Sec. 40-36-106(b) (1996 Supp.) provides:
Offenders shall not be excluded from the program on
the basis o f prior co nviction s for no nviolent felony
offenses, but may, at the discretion of the court and
local community corrections advisory board, be
excluded on the basis of prior convictions for felony
offenses which would not m eet the eligibility c riteria
provided in sub section (a).
Tenn. Code Ann. Sec. 40-36-106(a) excludes from community corrections
eligibility individuals who are convicted of felonies involving weapons or violence.
Because of Appellant’s previous involvement in an attempted aggravated
robbery an argument can be made that he does not meet the minimum
requirem ents for com munity c orrection s placem ent under the statutory provisions
quoted above. However, the record is unclear as to the exact nature of
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Appella nt’s involvement in the attempted aggravated robbery, and we are thus
hesitant to base our decision on this point alone.
What is clear from the record is that Appellant was on probation from a
conviction for his participation in the attempted robbery at the time he committed
the offenses which are the subje ct of this appe al. Unde r these circum stanc es it
was certainly appropriate for the trial judge to deny Appellant a placement in a
comm unity corrections program. As stated by Judge, now Chief Justice Adolpho
A. Birch:
It is exce ptiona lly difficult for us to understand how an
accused, already on probation, [wh en he c omm its
another offense] c onside rs himse lf entitled to yet a
second grant of probation or another form of alternative
punish ment.
State v. James Moffit, C.C.A . No. 0 1-C-0 1-901 0-CC -0025 2, W illiamso n Co. , April
4, 1991, at p. 1.
The judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
DAVID H. WELLES, JUDGE
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