IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1998
FILED
March 22, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9708-CR-00322
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. JOHN P. COLTON, JR.
NEAL JACKSON, ) 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 General and Reporter
200 Jefferson Avenue, Ste. 1250
Memphis, TN 38103 PETER M. COUGHLAN
Assistant Attorney General
425 Fifth Avenu e 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
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 ye ar sente nce on each ch arge to ru n conc urrently. 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
senten ce.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
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 M arch 27 , 1995. In th e early m orning h ours of M arch 28 , 1995, as
Appellant proceeded to a friend’s vehicle, he was approached by Mr. Joe Ward,
Jr. who asked for a cigare tte. Following this dialogue, Appellant sprayed mace
at Mr. W ard and took one thousa nd dollars ($1,00 0) 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 thr ough a cou sin
who delivered it. Additionally, the pre sente nce report reflects that on May 30,
1995, police officers went to a storage lot to check Appella nt’s veh icle. Th eir
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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
Coun ty with respe ct 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,
Appe llant filed a no tice of app eal to this C ourt.
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 an alysis 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). A ppellant c ontend s that the S tate
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 pres entenc e report, and
other source s mad e part of the record. State v. B onestel, 871 S.W.2d 163,167
(Tenn . Crim. A pp. 199 3).
W e find that confinem ent is necess ary to protect society by restraining
Appellant who has a history of criminal 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
conviction. Appellant also received a weapons conviction in 1994. In February
1995, Appellant com mitted a crime in Texas wh ich resulted in a con viction for
aggravated posse ssion of c ocaine . A few m onths 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
coca ine conviction and was released in January 1997 to ten years probation.
According ly, we find the trial court was correc t in finding Appellant’s history of
criminal conduct a legitimate factor in denying probation.
Furtherm ore, we determine that measures less restrictive than confinement
have freque ntly and recen tly been applie d uns ucce ssfully to Appe llant. Tenn.
Code Ann. §40-35-103(1)(c). Appellant contends that he would make a good
candid ate 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 agg ravated poss ession of coc aine in Texas . Clearly,
Appe llant’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.
W e 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
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