Palmore v. State , 236 Ga. App. 285 ( 1999 )

511 S.E.2d 624 (1999) 236 Ga. App. 285

PALMORE
v.
The STATE.

No. A99A0234.

Court of Appeals of Georgia.

February 5, 1999.

Douglas C. Rogers, Thomasville, for appellant.

J. Brown Moseley, District Attorney, Charles M. Stines, Anthony S. Gunn, Assistant District Attorneys, for appellee.

JOHNSON, Chief Judge.

Anthony Palmore pled guilty to possession of cocaine and was sentenced to serve five years in prison. He appeals from the sentence, claiming the sentence is too harsh, is not justified by the circumstances, and was imposed by the court "in a mechanical fashion without consideration of the facts and circumstances surrounding the case." We affirm.

"The Eighth Amendment protects against cruel and unusual punishment, a concept which prohibits, among other things, arbitrary and disproportionate sentences. Unless a sentence is so overly severe or excessive in proportion to the offense as to shock the conscience, a legislatively authorized punishment does not ordinarily exceed the constitutional bound. It could, if the court abused its discretion in imposing a sentence which is excessive and disproportionate in a specific case." (Citations and punctuation omitted.) Burgos v. State, 233 Ga.App. 897, 901-902(3), 505 S.E.2d 543 (1998).

Our legislature has provided that a first conviction of possession of cocaine carries with it a sentence of two to fifteen years imprisonment. OCGA § 16-13-30(c). Thus, the five-year sentence imposed by the trial court falls within the statutory limit. Palmore's sentence was not so overly severe or excessive as to shock the conscience. See Burgos, supra at 902, 505 S.E.2d 543.

Although Palmore asserts that the trial court did not fulfill its duty of "tailoring the sentence to fit the offender," he does not explain how the sentence is ill-fitting, nor does he demonstrate how his assertion is supported by the record. During a pre-sentence hearing, the trial court afforded Palmore the opportunity to offer evidence in mitigation of punishment. In so doing, Palmore apologized for committing the charged offense and admitted that he had other felony convictions, but made no argument supporting a lesser sentence.

There is a presumption that a sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party asserting its impropriety. State v. Freeman, 198 Ga.App. 553, 557(3), 402 S.E.2d 529 (1991). Because there is no presumption of impropriety and Palmore has shown nothing that would call the sentence into question, this enumeration is without merit. See Thomas v. State, 218 Ga.App. 455, 456(2), 462 S.E.2d 166 (1995).

Judgment affirmed.

McMURRAY, P.J., and RUFFIN, J., concur.