           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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