State v. Nathaniel Allen ( 1999 )

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 .
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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
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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.
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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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