# FILED

January 29, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9611-CR-00435

Appellee, * SHELBY COU NTY VS. * Hon. Arthur T. B ennett, Judge SAMUEL D. PERRY, * (Robbery)

Appellant. *

For Appellant : For Appellee : Edward G. Thompson John Knox Walkup Assistant Public Defender Attorney General and Repor ter 212 Adams Avenue Memphis, TN 38103 Kenneth W. Rucker (on appeal) Assistant Attorney Gener al 450 James Robertson Parkwa y Teresa Jones Nashville, TN 37243-4351 Assistant Public Defender 201 Poplar Avenue, Second Flo or Charles Bell Memphis, TN 38103 Asst. District Attorney General (at trial) 201 Poplar Avenue, Third Fl oor Memphis, TN 38103 Of Counsel: A.C. Wharton, Jr. Shelby County Public

Defender

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Samuel D. Perry, w as convicted of simple robber y. The trial court imposed a thr ee-year sentence to be ser ved in the Shelby County Correctional Center. In this appeal of right, the defendan t challenges the sufficiency of the e vidence a nd compl ains that the trial c ourt shou ld have gran ted an al ternative sentence.
We affirm the judgment of the trial court.

On the evening of July 16, 1993, the victim, Reese Wa lker, and his girlfriend attended a concer t at the Mud Island Amphitheater in Memphis. Afterward, they ate at a Perkins Family Resta urant and drove towards their home. During that time, the v

ictim and his girlfri end argued and the victim insisted on walking the rest of the way to his residenc e.
Afterward, at about 2:00 A.M. on July 17, the victi m was walking s outh on Elvis Presley Boulevard when he saw a group of six or sev

en men standing at a bus stop near the Clementine Apar tments. The victim paused and a mal e he later identif ied as the defend ant appr oached h im from b ehind an d directe d him to " move forward." When the victim reached the parking lot of an Oil City gas station, his assailant ordered him to dro p his umbrella and to empty hi s pockets. At that point, the victim observed an object protrudi ng from hi s assaila nt's side , which "ma y have been a crowbar." The vi ctim then threw his w allet and keys to the gr ound. The assailant then asked, "Where's the money?" When the victi m responded that he had none, he was told to leav e.
The victim stopped at a conv enience market and asked the cler k to3 report the robbery. About ten minutes later, as the v ictim related to the cler k the details of the incident, his assailant, wearing the same clothes except that his t-shirt had been turned inside out, entered the store and walked to the cooler. The defendant made a purchase and left in his v ehicle. The victim obser ved a second individual weari ng glasses and with a low-cut haircut i nside the defendant's car and then took the number on the license plate.

Patrolman James Howell of the Memphis Police Department responded to the call from the conv enient market. When provided a descripti on by the victim and acting upon other information supplied by the clerk, Patrolma n Howell went to the scene of the robbery. He described the area as sufficiently lighted to allow an identification. He found the defendant's vehicle par ked at the Clementine Apartments. At that point, a tal l male wearing gl asses observed the squad car and hurried back into his apar tment unit. When Officer Howell knocked on the door, he found the unit occupied by a male and female and two other men who matc hed the victim's description of the individuals in the vehicle. The victim immediately identified the defendant as his assailant and the other individual as the passenger in the assailant's car.

At trial, the defense called J onathan Clark as a witn ess. Clark testified that he had been the passenger in the car driven by th e defendant to the convenient market. He claimed that he and the others in the apartme nt had been playing cards, that the defendant had not comm itted the robbery, and that the two men were already at the counter of the c onvenient market when the victim arrived.
The defendant testified that he had been play ing cards at the apartment during the course of the evening except for tha t amount of time taken to4 drive to the convenient market for beer. He categorically denied any participation in the robbery and claimed that he was inside the market a t the time the victim arr ived to report the incident. The defendant c laimed that he did not know the full names of the other individuals who had played cards with him on the night of the robbery. He explained that many people i n the apartments were know n only by their firs

t names and that the woman who rented the apartment had moved to an unknow n location.

I The defendant insists that he was misidentifie d. On appeal, however, the state is entitled to the s trongest legitimate v

iew of the evidence and any reasonable inferences whic h might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the w eight to be given their testimony, and the reconciliation of conflicts in the evidence are matte rs entrusted exclusive ly to the jury as the triers of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). In a criminal case, a conv iction can be set aside only when the revi ewing court finds that the "evidence is insufficient t o support the finding by the trier of fact o f guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).
Robbery is defined as the i ntentional or knowing theft of property from the person of another by vi olence or putting the pers on in fear. Tenn. Code Ann. § 39-13-401(a). Here, the pr oof offered by the state established eac h of the elements required for a convic

tion. The trial record i ncludes evidence that the ac tions of the defendant placed the victim in fear. That the wallet was stolen was not at issue. The jury chose to accredit the testimony of the prosecuti on witnesses. The identification made by the v ictim obviously s

atisfied the jury. The v ictim, a criminal justice major at the Univ ersity of Mississi ppi, confirmed that he was "one hun dred5 percent positive" of his i dentification of the defendant. The investigating officer testified that the Oil City parking lot was adeq uately illuminated by a security light

. He characterized the des cription given by

the victim as one of the best he had observed during his ten years as a law enforcement officer.

In our view, the jur

y acted within its

prerogative in deter

mining that the defendant had committed the robbery. If believed, the victi m's testimony, standing alone, is sufficient to convi ct. State v. Willia ms , 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981).

II

Next, the defendant claims that the trial court failed to ad equately consider all of the sentencing options available. He contends that a shorter term of confinement or probation would have been a better alternati ve than the three-year jail sentence.

When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of6 sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35- 102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

A sentence of split confinement inv olves the grant of probati on after the partial service of a sentence. Tenn. Code Ann. § 40-35-306.It may include a jail or workhouse s

entence of up to one year with the probationary term to e xtend for any period thereafter up to the statutory maximum for the offense. Id.

The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum requirements of the Commun ity Corrections Act of 1985, however, does not mean that he is entitled t o be sentenced under the act as a matt er of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The follow ing7 offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

Initially, the defendant is ineligible for Community Corrections. Robbery is considered a violent offense. Tenn. Code Ann. § 40- 30-106(a)(2) and (3). Thus the only alter native sentence available is outright probati on or a term of split confinement.

The defendant, now twenty-s even years of age, is single and had no prior criminal recor

d as either an adult or a juv enile. He dropped out of school during the eleventh g rade but has completed his GED.In good physical and ment al health, the defendant acknowledg ed that he usually drank a twelve-pack of beer on Friday and Saturday; he does not use illegal drugs. The defendant described his family as close. He has a three-year-old son for w hom he provides support and had been employed in a maintenance position with Mayfield Trucking Compan y since8 1993. The defendant owns an automobile and r eported that his only obli gations were one-half of his household bi lls in the approximate amount of $150.00.
The presentence report indicated neither enhancement factors nor mitigating factors. At the sentencing hearing, the defendan t continued to maintain his innocence even though the trial court determined that he had been untruthful in his testimony. In imposi ng the three-year mini mum sentence for a Range I offender and ordering the defendant to serve the term in incarceration, the trial court approved a $1,000.00 fine and denied pr obation noting that robbery was "serious ... one of the higher felony cases ...," observing as foll ows:

[T]his is [a] frightening

type of felony, ... wher e you rob a person out in the middle of the nig ht somewhere, saying that you' ve got a gun a t their ba ck. And you may have had one. He didn't turn around t o see. So he dropped his wallet and ran so y

ou might have a [nine] mil limeter or anything else. I don't know.... But you frightened the victim to death. And this is the type of offense that calls for frightening punishment.... The court is of the opinion that this makes ... a serious type felony, that probation in this case would not be appr opriate at this time. While acknowledging that the defen dant did not have a record, the trial court observed that it woul d "depreciate the seriousness of this offense to grant probation in robbery cases." SeeTenn. Code Ann. § 40-35-112(a)(3 ). As a Range I offender convicted of a Class C felon y, the defendant was not only eligible for probation but is presumed to be a favorable c andidate for alternative sent encing. Tenn. Code Ann. § 40-35-102(6). To justify denial of an alternative sentencing, there must be evidence to warrant the denial. See State v. Fletcher , 805 S.W.2d 785 (Tenn . Crim. App. 1991).
Here, the trial judge denied probation because he consi dered robberies, in general, to be too serious for alternati ve sentence consideration.In that regard, the trial court "imposed a standard not author ized by the law i n effect at9 the time of the sentencing." State v. Hartley , 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). In Hartley , this court ruled as follows:

Once the legislature has specifically authoriz ed the use of sentencing alternatives to confinemen t for a particular offense, trial courts may not summarily impose a different standard by which probation is denied solely because of the d efendant's gu ilt for that offense.... To allow such a result w

ould fail to comply with the mandates of the 1989 Act and would condo ne inconsistency an d "unjustifie d disparity in sent encing" unrelated to the purposes of the Act. Hartley , 818 S.W.2d at 374 (citation omitted).

The 1989 Act requires the follow ing considerations for i ncarceration: (A) Confinement is necessary to protect society by restraining a defendant wh o has a long history of criminal conduct; (B) Confinement is necessary to avoid depreciating

the seriousness of the offense or conf inement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or (C) Measure s less rest rictive tha n confin ement ha ve frequently or recently

been applied unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1). That a simple robbery was committed, standing alone, would not justify the denial of an alternative sentence.
Based upon the evidence presente d at the sentencing hearing and the trial court's ruli ng at that point, this cour t would have found the tria l court erred by denying some form of alternativ e sentence. After the imposition o f sentence, however, the defendant failed to appear at the hearing on his motion for new trial. In consequence, a conditional forfeiture was issued aga inst his bail bonding company. There was evi dence indicating that a bounty hunter, James Conrad, had promised the defendant "an extension c ourt date" in return for $350. The defendant, who failed to consult hi s attorney about this matter, apparently paid the10 money. A second bounty hunter brought the defendant into custody about a week later. The defendant attributed his absence to confusion over cour t dates.

Later, at the rescheduled motion for new trial, defense counsel asked the court to reconsider an al ternative sentence. The tri al court initially stated he would "suspend all except for eleven months and twenty-nine days and place him on intensive probation for two years ...." When rem inded of the defendant's fa ilure to appear at the motion for new tr ial, the trial judge r

estored the original sentence.

The record is inconclusiv e as to whether the defendant w as granted bail during the pendency of this appeal. Sentencing Information Services has provided notice that the defendant had been placed in the custody of the Shelby County Correctional Center and then granted parol e on November 13, 1996. The probation issue had thus been a moot point for almost a year before thi s matter was placed on our docket.

In State v. Terry Moore , No. 02C01-9509-CC-00 257 (Tenn. Cr

im. App., at Jackson, Aug. 2, 1996) , this court determined that a probation revocation issue was moot where the defendant had served some time in TDOC and was thereafter placed on probation before hi s case reached the appellate co urts:

The concept of mootness deals with the circumstances that render a case no longer justiciable. A moot case is one that has lost it s charact er as a pre sent, live controversy. A case will generally be considered moot if it no longer serves

as a means to provide rel ief to the prevailing party

. ... In [this] case ..., it is

obvious that this court cannot provide an y meaningf ul relief to the Def endant e ven if we determine that the trial cour t erred by revoki ng the Defendant's probation. A reversal of the trial court's order revo king the De fendan t's proba tion would serve only to unnecessarily

confuse and complicate the Defendant's status.1 If awa re of the re leas e of a defe nda nt fro m c usto dy, co uns el for e ither s ide sh ould n otify this cou rt of th at fac t if ther e are sent enc ing iss ues on ap pea l. 11 Moore , slip op. at 3-4 (citations omitted).

The holding in Moore is persua sive autho rity. 1 Accordingly, the judgment of the trial court i s affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Joe G. Riley, Judge