State v. Jimmie Allen

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 28, 1997
• Docket: 02C01-9509-CR-00286
• Status: Published

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

-2- 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

-3- 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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