         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                     NOVEMBER 1997 SESSION
                                                 FILED
                                                  January 23, 1998

                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,             )                Appellate C ourt Clerk
                                )    NO. 02C01-9612-CC-00486
      Appellee,                 )
                                )    HARDIN COUNTY
VS.                             )
                                )    HON. C. CREED McGINLEY,
JASON PICKENS,                  )    JUDGE
                                )
      Appellant.                )    (Denial of Alternative Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:

STEPHANIE PRENTIS (Sentencing        JOHN KNOX WALKUP
615 Court Street   Hearing)          Attorney General and Reporter
Savannah, TN 38372
                                     CLINTON J. MORGAN
W. LEE LACKEY (On Appeal)            Assistant Attorney General
507 Water Street                     Cordell Hull Building, 2nd Floor
Savannah, TN 38372                   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 FILED:



AFFIRMED PURSUANT TO RULE 20



JOE G. RILEY,
JUDGE
                                      ORDER


       The defendant, Jason Pickens, entered a plea of guilty to the offense of

selling marijuana over one-half ounce, a Class E felony. He received an agreed

sentence of 18 months as a Standard Offender with the issue of alternative

sentencing reserved for judicial determination. The sole issue presented in this

appeal is whether the trial court erred in denying alternative sentencing. 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 waived his right to appeal. Defendant

signed a customary plea agreement form indicating a sentence of 18 months with

standard language waiving the right to appeal. The transcript of the guilty plea

appears to reflect an ordinary plea agreement; however, the trial court at the

conclusion of the hearing noted that "further sentencing in your case is reserved"

for another hearing. On a subsequent date there indeed was another hearing

relating to alternative sentencing. It is apparent the parties, at the time of the plea,

contemplated a hearing in which the trial judge would determine whether alternative

sentencing would be appropriate. We find no indication that the defendant intended

to waive his right to appeal this determination. We will address the issue on its

merits.



                                           II



       On November 3, 1995, defendant sold over one-half ounce of marijuana to

an undercover agent. Defendant claimed he was highly intoxicated and does not

remember the sale. He testified he had a drug and alcohol problem for some time

preceding this offense. He further testified that he was no longer consuming drugs

and alcohol and was attending AA meetings and receiving psychological counseling.

                                           2
       The pre-sentence report reveals that the defendant had several prior criminal

convictions over the past ten (10) years. He had prior convictions for disorderly

conduct, two (2) violations of the open beer law, failing to stop at the scene of an

accident, two (2) convictions for driving while intoxicated in the State of Georgia,

and a 1993 conviction for reckless endangerment with a deadly weapon. For the

latter felony offense, he received a two-year sentence with all but four (4) months

suspended. His probation on that conviction had expired only two (2) months prior

to the commission of the present offense.

       The trial court noted that defendant was entitled to a presumption of being

a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-

102(6). The trial court, nevertheless, concluded that prior efforts at rehabilitation

had failed and further noted that this offense was committed only a short time after

his prior probation had expired.

       After thoroughly reviewing the record, the briefs, and the law governing the

issue presented by the defendant, we conclude that the trial court did not err by

denying alternative sentencing. 1 Accordingly, pursuant to Rule 20 of the Tennessee

Court of Criminal Appeals, we AFFIRM the sentence of the trial court.




                                            JOE G. RILEY, JUDGE



CONCUR:




GARY R. WADE, JUDGE




DAVID G. HAYES, JUDGE



       1
      We note defendant will be eligible for a suspended sentence, pursuant to Tenn.
Code Ann. § 40-35-501(a)(3), after serving only a portion of his sentence in confinement.


                                            3
