FILED

March 22, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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 JACKSON, ) JUDGE

)

Appellant. ) (Direct Appeal-Possession of 

) Cocaine - Robbery)

FOR THE APPELLANT: FOR THE APPELLEE:

MARVIN E. BALLIN JOHN KNOX WALKUP

MARK A. MESLER Attorney General and Reporter

200 Jefferson Avenue, Ste. 1250

Memphis, TN 38103 PETER M. COUGHLAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

WILLIAM L. GIBBONS

District Attorney General

DANIEL R. WOODY

Assistant District Attorney

201 Poplar Avenue - Third Floor

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

This matter is an appeal as of right by Appellant, Neal Jackson, from the

judgment of the Shelby County Criminal Court. In May 1997, Appellant entered

guilty pleas on charges of unlawful possession of a controlled substance with

intent to sell and deliver and robbery. The trial court ordered that Appellant

receive a three year sentence on each charge to run concurrently. In July 1997,

Appellant filed a notice of appeal to this Court. On appeal, Appellant raises the

issue of whether the trial court properly denied his petition for a suspended

sentence. 

After a review of the record, we affirm the judgment of the trial court.

FACTS

At the probation hearing, Appellant explained to the trial court his version

of the events which led to his arrest. Appellant testified that he went to a club on

the night of March 27, 1995. In the early morning hours of March 28, 1995, as

Appellant proceeded to a friend’s vehicle, he was approached by Mr. Joe Ward,

Jr. who asked for a cigarette. Following this dialogue, Appellant sprayed mace

at Mr. Ward and took one thousand dollars ($1,000) from his money belt.

Appellant fled in his friend’s vehicle, ran the car into a tree, and left the scene on

foot. Later that day, Appellant returned the money to Mr. W ard through a cousin

who delivered it. Additionally, the presentence report reflects that on May 30,

1995, police officers went to a storage lot to check Appellant’s vehicle. Their
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search produced a Tennessee license plate registered to Appellant and a vial

containing residue. The residue in the vial later tested positive for cocaine.

At the close of the probation hearing, the trial judge stated that he had

reviewed the presentence report and Appellant’s record in determining that

Appellant should not receive a suspended sentence. The trial court noted that

Appellant had previously been placed on probation for a ten year period in

Mississippi following a conviction of aggravated possession of cocaine in Texas.

The trial court also acknowledged Appellant’s prior criminal record in Shelby

County with respect to a theft and weapons charge. It was further determined by

the trial court that the record was without proof that Appellant had current

employment possibilities. Based on the above considerations, the trial court

denied Appellant’s petition to suspend his sentence. Subsequently, in July 1997,

Appellant filed a notice of appeal to this Court.

I. ALTERNATIVE SENTENCING CONSIDERATIONS

Appellant challenges the trial court’s denial of his request for a suspended

sentence and contends that the trial court failed to properly consider the

sentencing principles, and the facts and circumstances of his case. Specifically,

Appellant argues that a number of mitigating factors present in his case were not

applied by the trial court. Appellant also asserts that he would be a good

candidate for rehabilitation.

In the case sub judice, our analysis begins with a determination of whether

Appellant is entitled to the presumption of alternative sentencing. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). Appellant is a Range I standard offender
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and was convicted of two Class C felonies. He has been sentenced to two

concurrent three year sentences. Therefore, Appellant is entitled to the

presumption. Tenn. Code Ann. §40-35-102(6). Appellant contends that the State

failed to offer evidence to rebut the presumption. We disagree. In the present

case, the presumption is rebutted by overwhelming evidence presented by the

State, the testimony of Appellant, facts contained in the presentence report, and

other sources made part of the record. State v. Bonestel, 871 S.W.2d 163,167

(Tenn. Crim. App. 1993). 

We find that confinement is necessary to protect society by restraining

Appellant who has a history of criminal conduct. Tenn. Code Ann. §40-35-103

(1)(a). The chronology of Appellant’s criminal history was noted by the trial court

at the probation hearing. Appellant’s criminal history begins in 1990 with a theft

conviction. Appellant also received a weapons conviction in 1994. In February

1995, Appellant com mitted a crime in Texas which resulted in a conviction for

aggravated possession of cocaine. A few months later, in May 1995, Appellant

committed the crimes which are the subject of this appeal. In July 1996,

Appellant began serving a six month incarcerative sentence in Texas for the

cocaine conviction and was released in January 1997 to ten years probation.

Accordingly, we find the trial court was correc t in finding Appellant’s history of

criminal conduct a legitimate factor in denying probation.

Furthermore, we determine that measures less restrictive than confinement

have frequently and recently been applied unsuccessfully to Appellant. Tenn.

Code Ann. §40-35-103(1)(c). Appellant contends that he would make a good

candidate for rehabilitation. However, he has recently demonstrated a lack of
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potential for rehabilitation. Appellant claimed to have “learned something” from

his Texas conviction and incarceration. Nonetheless, the offenses which are the

subject of the current appeal were committed while Appellant was on probation

following a conviction for aggravated possession of cocaine in Texas. Clearly,

Appellant’s potential for rehabilitation is negligible. Therefore, we conclude that

the trial court was correct in denying probation based upon Appellant’s lack of

potential for rehabilitation.

We find the record amply supports the trial court’s denial of probation.

Accordingly, the judgment of the court below is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE