            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE             FILED
                             OCTOBER 1997 SESSION
                                                               January 8, 1998

                                                             Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
STATE OF TENNESSEE,                  *   C.C.A. # 03C01-9701-CR-00014

       Appellee,                     *   HAMILTON COUNTY

VS.                                  *   Hon. Gary D. Gerbitz, Judge

JOE HENRY SMITH,                     *   (Sentencing)

       Appellant.                    *




For Appellant:                           For Appellee:

Ardena J. Garth                          John Knox Walkup
District Public Defender                 Attorney General and Reporter
Eleventh Judicial District

Donna Robinson Miller                    Clinton J. Morgan
Assistant District Public Defender       Counsel for the State
Suite 300, 701 Cherry Street             450 James Robertson Parkway
Chattanooga, TN 37402                    Nashville, TN 37243-0493
(on appeal)
                                         Barry Steelman
Cynthia Lecroy-Schemel                   Assistant District Attorney General
Assistant District Public Defender       Suite 300, 600 Market Street
Suite 300, 701 Cherry Street             Chattanooga, TN 37402
Chattanooga, TN 37402
(at trial)



OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The defendant, Joe Henry Smith, was indicted for aggravated robbery.

He then entered into a plea agreement whereby he pled guilty to simple robbery 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 should have granted

probation or an alternative sentence.



              At about 1:00 A.M. on September 18, 1995, the victim, William Luther,

who was an employee of Steak-Out, made a delivery to a residence in Chattanooga.

The defendant, who appeared to be armed with a sawed-off shotgun, and another

male robbed the victim of approximately $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 defendant acknowledged that the robbery

was "stupid" and claimed that it was the result of being with "the wrong crowd and

[at] the wrong place at the wrong time." The defendant denied 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 violated his probation on a prior theft conviction by the

time this crime had occurred.



              The trial court first determined that the defendant had a prior criminal

history which included prior theft offenses and the use of illegal drugs. It determined

that the defendant was on either probation or a suspended sentence when the

robbery occurred and had been untruthful to police when first questioned. Based

upon those findings, the trial court determined that confinement in prison was


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necessary.



              When there is a challenge to the length, range, or manner of service 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 presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all 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 requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics 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. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing

options in the absence of evidence to the contrary." Tenn. Code 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 Corrections Act of 1985 was to provide


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an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103. The Community Corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets

the minimum requirements of the Community Corrections Act of 1985, however,

does not mean that he is entitled to be sentenced under the act as a matter of law

or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following

offenders are eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

              (3) Persons who are convicted of nonviolent felony
              offenses;

              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



              The defendant, twenty-two years of age, is single. He attended

Ooltewah High School until the twelfth grade when he was suspended for fighting.

The defendant has two daughters, ages six and five, through a relationship with

Mona Davis and, according to the presentence report, does not provide child

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support. While possessing "the ability to attain and maintain gainful employment,"

the defendant has a sporadic work history. Working as a laborer, his jobs with three

different employers from 1992 through 1995 were terminated by a discharge,

abandonment, and resignation. While in excellent physical and mental health, the

defendant conceded that he was smoking "weed" and using alcohol at the time of

the robbery.



               The defendant's record includes a 1996 conviction 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 convictions for

shoplifting, assault, driving on a revoked license, and criminal impersonation. His

juvenile record includes more than one theft and an assault.



               The defendant's father, Joe Smith, Sr., is a heavy equipment operator

and supervisor with Ridge Brothers Construction in Chattanooga. He testified that

he was willing to have his son return to his residence, support random drug screens,

and find the defendant regular employment as a laborer.



               While the defendant has made a compelling argument for probation, a

sentence of split confinement, or placement in Community Corrections, a

determination made by the trial court after proper consideration of the applicable law

and facts, is always entitled to a presumption of correctness. Community

Corrections is designed for those who are convicted of non-violent felony offenses.

Robbery qualifies as a violent offense and, therefore, precludes 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. App., at

Jackson, July 7, 1997).


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              Moreover, the defendant's prior criminal history and his failure to

comply with the terms of a conditional release from incarceration on an earlier

sentence, support the denial of either immediate 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 Criminal Sentencing Reform Act of 1989 is to provide the

punishment most "justly deserved in relation to the seriousness of the offense...."

Tenn. Code Ann. § 45-35-102(1). Sentencing requires an individualized, case-by-

case 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 judge sees and hears the witnesses firsthand. See State v. Fletcher,

805 S.W.2d 785 (Tenn. Crim. App. 1991). Appellate courts "are always reluctant to

interfere with [the] traditional discretionary powers [of the trial judges]." Ashby, 823

S.W.2d at 171. That is the case here. The trial court listed valid reasons for the

denial of an alternative.



              For all of these reasons, we affirm the judgment of the trial court.



                                           ________________________________
                                           Gary R. Wade, Judge

CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Jerry L. Smith, Judge




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