State v. Nathaniel Allen

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 24, 1999
• Docket: 01C01-9804-CC-00164
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY SESSION, 1999 February 24, 1999

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9804-CC-00164 ) Appellee, ) ) ) MOORE COU NTY VS. ) ) HON. CHARLES LEE NATHANIEL ALLEN, ) JUDGE ) Appe llant. ) (Direct Appe al - Posses sion of ) Marijuana/Driving ) on Revoked Licensed)

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. MCGOWN JOHN KNOX WALKUP 113 North Court Squ are Attorney General and Reporter Wa verly, TN 37185 (On App eal Only) DARYL J. BRAND Associate Solicitor General JOHN HARWELL DICKEY 425 Fifth Avenu e North District Public Defender Nashville, TN 37243 105 S. Main Street Fayetteville, TN 37334 MIKE MCCOWEN (At Tr ial and of Cou nsel o n App eal) District Attorney General

ROBERT G. CRIGLER Assistant District Attorney Moore County Courthouse Lynchburg, TN

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE OPINION

On Janua ry 26, 199 8, a Moore C ounty jury convicted Appellant Nathaniel

Allen of possession of a controlled substance and driving on a revoked license.

After a sentencing hearing on February 25, 1998, Appellant received concurrent

sentences of ten months and fifteen days for possession of marijuana and three

months for driving on a revoked license . On June 1 2, 1998, the trial court

granted Appellant’s motion for early release and placed Appellant on supervised

probation. Appellant contends that the trial court erroneously im posed longer

sentences than he deserves. After a review of the record, we affirm the judgment

of the trial cou rt.

FACTS

Depu ty Lawrence Campbell of the Moore County Sheriff’s Department

testified that on May 17, 1997, he stopped a vehicle driven by Appellant because

the vehicle had lights that were not working properly. When Campbell

approached the vehicle and asked Appellant for his license, he noticed the odor

of marijuana coming from inside the vehicle. Campbell subsequently asked

Appellant for permission to search the vehicle and Appellant agreed. After

Appellant and his passenger exited the vehicle, Campbell and some other

officers searched the vehicle and found a pair of hemostats that can be used for

smo king m arijuan a. Sho rtly thereafte r, Appella nt’s pass enger re ached into her

pants and pulled out a marijuana cigarette that she gave to the officers.

Cam pbell testified that at this point, Appellant stated tha t the ma rijuana cig arette

belong ed to him .

-2- Appellant testified in his own behalf and his testimony differed slightly from

that of Dep uty Ca mpb ell in that Appellant testified that he was the one who gave

the ma rijuana cig arette to the officers.

ANALY SIS

Although Appellant took the unusual step at his sentencing hearing of

asking the trial court to impose the maximum sentence for each conviction, he

now claims that his sentences are excessive. We disagree.

“When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the ap pellate court s hall conduct a d e novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the court from which the appeal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presumption of correctness which accompanies the trial court’s action is

conditioned upon the affirm ative showing in the record that the trial court

considered the sentencing principles and a ll relevant fac ts and circ umsta nces.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must conside r all the evide nce, the presentence report, the sentencing principles,

the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s

statements, the natur e and c haracte r of the offense, and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of

demonstrating that the sentence is improper.” Id. Beca use th e reco rd in this

case indicates that the trial court properly considered the sentencing principles

-3- and all relevant facts and circ umsta nces, our review is de novo with a

presumption of correctness.

In determining th e length of Ap pellant’s sentenc es, the trial court stated

that instea d of m erely granting Appellant’s request for maximum sentences, the

court would follow the principles and procedures of the Sentencing Act of 1989.

The tr ial cou rt then fo und th at three enha ncem ent fac tors ap plied to Appe llant’s

sentences. The court found that enhancement factor (1) applied because

Appellant had a previous history of criminal convictions in addition to those

necessa ry to establish the appropriate sentencing range. See Tenn. Code Ann.

§ 40-35-114(1) (1997). 1 The court also found that enhancement factor (2)

applied because Appellant was the leader in an offense involving two or more

persons. See Tenn. Code Ann. § 40-35-11 4(2) (1997). T he court also found that

enhancement factor (8) applied because Appellant had a previous history of

unwillingness to comply with conditions of release into the com munity. See

Tenn. Code Ann. § 4 0-35-11 4(8) (199 7). Finally, the court foun d that the only

mitiga ting factor that applied was factor (1), that Appellant’s criminal conduct

neither caused nor threa tened s erious bo dily injury. See Tenn. Code Ann. § 40-

35-113 (1) (1997 ).

Appellant does not challenge the trial court’s application of the three

enhancement factors, no r does h e conte nd that the trial court failed to apply any

additional mitigating factors. Instead, Ap pellant simply m akes the co nclusory

statement that unde r the facts of this case, his sentences are excessive. Not

1 The re cord indic ates that A ppellant ha s two pre vious co nvictions fo r mar ijuana po ssess ion. In addition, Appellant has previous convictions for public intoxication, resisting arrest, driving under the influence of an intox icant, and posse ssion of a weap on with inten t to go arm ed.

-4- only is this unsupported allegation simply not su fficient to satisfy A ppella nt’s

burden of demonstrating that his sentences are improper, we conclude in our de

novo review tha t, given Appellant’s prior criminal record, sentences of ten months

and fifteen days for possession of marijuana and three months for driving on a

revoked license a re entirely ap propriate in this case . This issu e has n o merit.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

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