        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


                                         -2-
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

                                           -3-
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

                                          -4-
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




                                        -5-
