# FILED
January 8, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9701-CR- 00014 Appellee, * HAMILTON CO UNTY VS. * Hon. Gary D. Gerbitz, Ju dge JOE HENRY SMITH, * (Sentencing) Appellant. *

For Appellant : For Appellee : Ardena J. Garth John Knox Walkup District Public Defender Attorney General and Repor ter Eleventh Judicial Di strict Donna Robinson Miller Clinton J. Morgan Assistant District P ublic Defender Counsel for the State Suite 300, 701 Cherry Str eet 450 James Robertson Parkwa y Chattanooga, TN 37402 Nashville, TN 37243-0493 (on appeal) Barry Steelman Cynthia Lecroy-Sc

hemel Assistant District A ttorney General Assistant District P ublic Defender Suite 300, 600 Market Street Suite 300, 701 Cherry Str eet Chattanooga, TN 37402 Chattanooga, TN 37402 (at trial)

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Joe Henry Smith, w as indicted for aggrav

ated robbery. He then entered into a plea agr eement whereby he pled g uilty to simple robber y and accepted a Range I, six-year sentence. The trial court denied probation. In this appeal of right, the defendant complains that the trial court shoul d have granted probation or an alternativ e sentence.
At about 1:00 A.M. on September 18, 1995, the victim, William Luther, who was an employee of Ste ak-Out, made a delivery to a residence in Chattanooga. The defendant, who appeared to be armed w ith a sawed-off shotgun, and anothe r male robbed the victim of approx imately $60.00 in cash, food, and the contents of his wallet.
At the sentencing hearing , the defendant, who had been jailed for approximately nine months, testified that he planned to return to the residence of his father, if released, and go to work. The defenda nt acknowledged that the robbery was "stupid" and claimed that it was the result of bei ng with "the wrong crowd and [at] the wrong place at

the wrong time." The defendant deni ed having a shotgun but conceded that he had a pipe and held it as if it was a shotgun . The defendant testified that he had already v iolated his probation on a pr ior theft conviction by

the time this crime had occurr ed.

The trial court first deter mined that the defendant had a prior cr iminal history which i ncluded prior theft offenses and the use of il legal drugs. It deter mined that the defendant was on either pr obation or a suspended sentence w hen the robbery occurred and had been untruthful to police when fir st questioned. Based upon those findings, the trial court determined that confinement in prison was3 necessary.
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 of 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).

The purpose of the Community Corr ections Act of 1985 was to pr ovide4 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 ing 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 c rimes 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).

The defendant, twenty-two y ears of age, is single.He attended Ooltewah High School until the twelfth grade w hen he was suspended for fighti ng. The defendant has two daughters, ag es six and five, throug h a relationship with Mona Davis and, according to the presentence report, does not provide child5 support. While possessing "the abilit y to attain and maintain ga inful employment," the defendant has a sporadic wor k history. Working as a labore r, his jobs with thr ee different employers from 1992 throug h 1995 were terminated by a discharge, abandonment, and resignation. While in exc ellent physical and mental health, the defendant conceded that he was smokin g "weed" and using alc ohol at the time of the robbery.

The defendant's record includes a 1996 con viction for theft of less than $500.00 and an eleven-month and twenty-nine-day sentence which resulted in the revocation of probation. Prior to that, the defendant had conv ictions for shoplifting, assault, driving on a revoked license, and criminal impersonation. His juvenile record incl udes more than one theft and an assault.

The defendant's father, Joe Smith, Sr., i s a heavy equipment oper ator and supervisor with Ridge Brothers Const ruction in Chattanooga. H e testified that he was willing to have his son return to his residence, support random drug screens, and find the defendant regular employmen t as a laborer.

While the defendant has made a compelling argument for probation, a sentence of split confinement, or plac ement in Community Corrections, a determination made by the tri al court after proper consid eration of the applicable law and facts, is always e ntitled to a presumption of corr ectness. Community Corrections is desig ned for those who are convi cted of non-violent felony offenses. Robbery qualifies as a violent offense and, therefore, precl udes the defendant from consideration. State v. Staten , 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989); State v. Vernita Cox , No. 02C01-9605-CR-00174, slip op. at 3 (Tenn. Crim. Ap p., at Jackson, July 7, 1997).6 Moreover, the defendant's pri or criminal history and his failure to comply with the terms

of a conditional release from inc arceration on an earlier sentence, support the denial of either imme diate probation or a sentence of split confinement. See Tenn. Code Ann. §§ 40-35-102(3)( B) and -103(1)(C). The primary purpose of the Cri minal Sentencing Reform Act of 1989 i s to provide the punishment most "justly deser ved in relation to the se riousness of the offense...." Tenn. Co de Ann. § 45-35-10 2(1). Sen tencing re quires an i ndividua lized, cas e-bycase approach. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). That method of analysis necessarily embodies the exercise of discretion at the trial court level, where the trial judg e sees and hears the witnes ses firsthand. See State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991). Appellate c ourts "are always r

eluctant to interfere with [the] trad itional discretionary powers [of the trial ju dges]." Ashby , 823 S.W.2d at 171. That is the case here. The trial c ourt listed valid r

easons for the denial of an alternative.

For all of these reasons, w e affirm the judgment of the trial cour t.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David H. Wel les, Judge

_____________________________ Jerry L. Smith, Judge