# FILED
January 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON NOVEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9612-CC-00486 Appellee, ) ) HARDIN COUNTY VS. ) ) HON. C. CREED McGINLE Y, JASON PICKENS, ) JUDGE ) Appellant. ) (Denial of Alte rnative Sentenc ing)

FOR THE APPELLANT : STEPHANIE PRENTIS (Sentencing 615 Court Street Hearing) Savannah, TN 38372 W. LEE LACKEY

(On Appeal) 507 Water Street Savannah, TN 38372 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter CLI NTO N J. MOR GAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General JOHN OVERTON Assistant

District Attorney

General P. O. Box 484 Savannah, TN 38372-0484

OPINION FI LED:

AFFIRMED PU RSUANT TO R ULE 20

JOE G. RILEY, JUDGE2 O R D E R
The defendant, Jason Pickens, entered a pl ea of guilty to the offense of selling marijuana over one-half ounce, a Cla s s E felony. He receiv ed an agreed sentence of 18 mont hs as a S tandard Off ende r with the is sue of al ternative sentencing reserved for judicial determinatio n. The sole issue presented in this appeal is whether the trial court erred in denying alternat iv e s en te nc in g. We AFFIRM the sentence of the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

I

The state contends the defendant waiv ed his right to appeal. D efendan t signed a customary plea agreement form indicating a sentence of 18 month s with standard language wai ving the right to appeal. The tr anscript of the guilty plea appears to reflect an ordinary pl ea ag reement; however, the tr ial court at the conclusion of the h earing noted that "further sentenc ing in your case is

reserved" for anoth er hearing. On a subsequent date there in deed was another hearing relating to alternat ive sentenc ing. It is apparent the parties, at the time of the plea, contemplated a hearing in which the trial judge would determin e whether alternat ive sentencing would be appropriate. We find no indication that the defendant intended to waive his ri g ht to appeal this determination. We will address the issue on its merits.

II

On November 3, 1995, defendant sold over one-half ounce of mari juana to an undercover agent. De fendant claimed he was highly i ntoxicated and does not remember

the sale. He te

stified he had

a drug and al cohol probl em for some time preceding this offense. He further testified that he was no longer cons uming drugs and alcoh ol and was attending AA meetings and receiving psychologica l counseling

.1 We note defendant will be eligible for a suspended sentence, pursuant to Tenn.

Code Ann. § 40-35- 501(a)(3), aft er serving only

a portion of his sen

tence in confine

ment.
3 The pre-sentence report reveals that the defendant had several pr ior criminal
con viction s over the past ten (10) years. He had prior convictions for disorderly conduct, two (2 ) violatio ns of the open beer law, failing to stop at the scene of an accident, two (2 ) convi ctions for driv ing wh ile int

oxicat ed in the State of G eor gia, and a 1993 conviction for reck less endangerment with a deadly weapon. For t he latter felony offense, he received a two-year sentence with all but four (4) months suspended. His probation on that conviction had expir

ed only two (2)months prior to the commission of the present offense. The trial court noted that defendant w as entitled to a presumpt i on of being
a favorable candidate for altern ative sentencing. See Tenn. Code Ann. § 40-35- 102(6). The trial court, nevert heless, concluded that prior efforts at rehabilitat io n had failed and further noted that this offense was committed only a short ti me after his prior probation had ex pired. After thoroughly reviewing the record, the briefs, and the law governing the issue presented by the defend ant, we conclude that the trial cour t did not err by denying alternative sent encing. 1 Accordingly, pur suant to Rule 20 of the Tennessee Court of Criminal Appeals, w e AFFIRM the sentence of the tr ial court.

JOE G. RILEY, JUDGE

CONCUR:

GARY R. WADE, JUDGE

DAVID G. HAYES, JUDG E