# FILED
March 22, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON AUGUST SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9708- CR-00322 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JOHN P.COLTON, JR . NEAL JA CKSON, ) JUDGE ) Appe llant. ) (Direct Appe al-Posse ssion of ) Coc aine - Rob bery)

FOR THE APPELLANT : FOR THE APPELLEE : MAR VIN E. B ALLIN JOHN KNOX WALKUP MARK A. MESLER Attorney Generaland Reporter 200 Jefferson Avenue, Ste. 12 50 Memphis, TN 38103 PETER M. COUGHLAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 WILLIAM L . GIB BONS Distri ct Attor ney General DANIEL R. WOODY Assistant Distri ct Attor ney 201 Poplar Avenue - Third Floor Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

# OPINION

This matter is an appeal as of right by Appellant, Neal Jackson, f rom the judgment of t he Shelby County Cri minal Court. In May 1997, Appellant entered guilty pleas on charges of unlawful possession of a controll ed substan ce w ith intent to sell and deliver and robbery. The t rial co urt ordered that Appell ant receive a three ye ar sente nce on each ch arge to ru n conc urrently. In July 1997, Appellant

fi led a not iceof a ppea l t o th is Co urt . On appeal, Appell ant raises the i ssue of whether t he trialcourt proper ly denied hi s petiti on for a s uspende d senten ce.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

At the probati on hearing, Appel lant expl ained to t he trialcourt his version of the events which led to hi s arrest. Appellant testif ied that h e went to a cl ub on the night of M arch 27 , 1995. In th e early m orning h ours of M arch 28 , 1995, as Appellant

proceeded to a f riend’s v ehicle, he was approached by Mr. Joe Ward, Jr. who asked for a cigare tte. Following t his dial ogue, Appellant sprayed mace at Mr. W ard and took one thousa nd dollars ($1,00 0) fro m his money belt. Appellant

fled in his f riend’s v

ehicle, ran the car i nto a tree, and left t he scene on foot. Later

that day, Appellant r

eturned the money

to Mr. W ard thr ough a cou sin who delivered it. Additionally, the pre sente nce report r eflects that on May 30, 1995, police of

ficers went

to a storagelot to c heck A ppella nt’s veh icle. Th eir-3-

sea rch produced a Tennessee li cense plate r egistered t

o Appellant and a v ia l containi ng residue. The residue in t he vial l ater tested positi ve for cocai ne.

At the close of

the proba tion heari ng, the trial j udge stated t hat he had reviewed th e presentence repor t and Appellant’s record i n determining that Appellant

should not r

eceive a suspended sen tence. The t rial court noted that A ppellant

had previousl y been placed on pr obation for

a ten year period i n Mississi ppi followi ng a convict ion of aggravated possession of cocaine in Texas. The trialcourt als o acknowledged A ppellan t’s pri or criminalrecord in Shel by Coun ty with respe ct to a theft and weapons charge. It was f urther determined by the trialcourt that

the record was without pr oof tha t Appellant had c urrent employ ment possibilit ies. Based on the above considerations, the trial co ur t denied Appellant’ s petiti on to suspend his sentence. Subsequently, in July 1997, Appe llant filed a no tice of app eal to this C ourt.

I. A LTERNATI VE SENTENCI NG CONSIDERATIONS Appellant

challengesthe tri al court’ s denial of his request

for a suspended
sen tence and contends that the tri al court f

ailed to properly

consider t he sentencing principl es, and the facts and cir cumstances of his

case. Specifically, Appellant

argues that a number of miti gating fac tors present

in his case were not applied by the tr ial court . Appellant also asserts that he would be a g ood candidate for rehabil itati on.

In the case sub judice , our an alysis begins wit h a determinati on of whether Appellant

is enti tled to t he presumption of alternative sentencing. State v. Ashby , 823 S.W.2d 166, 169 (Tenn . 1991). Appellant i s a Range I standard offender-4-

and was convict ed of two Class C felonies . He ha s been sent enced to t wo concurrent

three year

sentences. Theref

ore, Appell ant is ent itled t o the presumption
. Tenn. Code Ann . §40-35 -102(6). A ppellant c ontend s that the S tate failed to offer

evidence to rebut the pr esumption. We disagree . In the present case, the presumpti on is rebut ted by overwhel ming e vid ence presented by the State, the testi mony of Appellant , facts contained in the pres entenc e report, and othersource s mad e part of the record. State v. B onestel , 8 71 S.W.2d 163,167 (Tenn . Crim. A pp. 199 3).

We find that confinem ent is necess ary t o protect soc iety by restrai ning Appellant

who has a histor

y of cri minal condu ct. Tenn. Code Ann. §40-35-103 (1)(a). The chronology of Appellant’ s criminal history was noted by the trial court at the prob ation hea ring. App ellant’s crim inal history b egins in 1 990 with a theft convicti on. Appellant a lso recei ved a weapons convic tion in 1994. In February 1995, Appellant com mitted a crime in Texas wh ich resulted in a con vi ct ion for aggravated posse ssion of c ocaine . A few m onths later, in May 1995, Appell ant committed the crimes whi ch are the subj ect of thi s ap peal. In July 1996, Appellant

began serving a six month incarcerat ive sentence in Texa s for the
coca in e conv iction and was released i n January 1997 to ten years probat ion. According ly, we find the tri al court was correc t in finding Appellant’ s history of criminal conduct a legi timate fac tor in deny ing probati on.

Furtherm ore, we determine that measures less restricti ve than confi nement have freque ntly and recen tly been applie d uns ucce ssfully to Appe lla n t. Tenn. Code Ann. §40-35-103( 1)(c). Appel lant co ntends that he would make a good candid ate for rehabi litat ion. However, he has recentl y demonstrated a la ck of-5-

potentialforrehabili tation. Appellant c laimed to have “learned something” f rom his Texas convict ion and incar ceration. Nonetheless, the offenses which are th e subject of

the current appealwere committed whi le Appellant was on probati on followi ng a conviction for agg ravated poss ession of coc aine in Texas . Clearly, Appe llant’s potentialfor rehabi litat ion is negli gible. Therefore, we con clude that the trialcourt was cor rect in den ying probati on based upon Appellant ’s lack of potentialfor rehabi litat ion.

We find t he record amply suppor ts the trial court’s denial of probati on. According ly, the j udgment of t he cou rt b elow

is AF FIRMED.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ JOHN K. BYERS, SENIORJUDGE