# FILED February 24, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804- CC-00164 ) Appellee, ) ) ) MOORE COU NTY VS. ) ) HON. CHARLES LEE NATHANI EL ALLEN , ) JUDGE ) Appe llant. ) (Direct Appe al - Posses sion of ) Marijuana/

Drivi ng ) on Revoked Lice nsed)

FOR THE APPELLANT : FOR THE APPELLEE : CLIF FORD K. MCGOWN JOHN KNOX WALKUP 113 North Court Squ are Attorney Generaland Reporter Wa verly, TN 37185 (On App eal Only) DARYL J. BRAND Associate Soli citor General JOHN HARWELL DICKEY 425 Fifth Avenu e North Distri ct Public

Defender Nashvill e, TN 37243 105 S. Main Street Fayettevi lle, TN 37334 MIKE MCCOWEN (At Tr ial and of Cou nsel o n App eal) Distri ct Attor ney General ROBERT G. CRIGLER Assistant Distri ct Attor ney Moore County Courthouse Lynch burg, TN
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION
On Janua ry 26, 199 8, a Moore C ounty jury convicted Appellant Nat haniel Allen of possession of a control led substance and drivi ng on a revoked license. After a sentencing hearing on February 25, 1998, Appellan t received concurrent sentences of ten months and fifteen days for poss ession of marijuana and three months for dri ving on a revoked license . On June 1 2, 1998, the trial court granted Appellant’ s motion for early release and placed Appellant on s upervised probation. Appellant contends that the tri al court er roneo usly im posed longer sentences than he deserves. After a r eview of t he record, we af firm the j udgment of the trial cou rt.

FACTS Depu ty Lawrence Campbell of the M oo re County Sheri ff’s Depar tment testif ied thaton May 17, 1997, he st opped a vehicle driv

en by Appellant because the vehi cle h ad li ghtsthat were n ot wo rki ng properly. When Ca mp bell approached the vehicl e and asked Appellant for his license, he noticed the odor of m arijua na coming from insi de the vehicl e. Campbell subsequent ly asked App e llant

for permissi on to search t he vehicle and Appellant a greed. After Appellant

and his passenger ex ited the v ehicle, Campbell and some other officers searched the vehicl e and found a pair of hemostats t hat can be used for
smo king m arijuan a. Sho rtly thereafte r, Appella nt’s pass enger re ached into her pan ts and pulled out a marijuana cigaret te that she gave to the of ficers. Cam pbell testif ied that at this point, Appel lantstated tha t the ma rijuana cig arette belong ed to him
.-3- Appellant

testif ied in hi s own behalf and hi s testi mony differ ed slight ly fr

om thatof Dep uty Ca mpb ell in that Appellant testifi ed that he was t he one who gave the ma rijuana cig arette to the officers.

ANALY SIS Althoug h Appellant t ook the unusual step at his sentencing heari ng o f
a sking th e trialcourt to i mpose the maximum sentence for each convict ion, he now claims that

his sentences are excessiv e. We disagree.

“When reviewi ng sentencing i ssues . . . includi ng the granting or denial of probation and the lengt h of sentence, the ap pellate court s hall conduct a d e novo review on the record of such issues . Such revi ew shall be con duc ted with a presumption thatthe determinat ions made by the cour t from which t he appeal is taken are correct .” Tenn. Code Ann. § 40-35-401(d) (1997). “ However, the presumption of correct ness which accompanies t he trialcourt’s ac tion is cond ition ed upon the affirm ative showing in the record that the trial court considered the sentenci ng princi ples and a ll relevant fac ts and circ umsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91). In cond ucting our revi ew, we must conside r all the evide nce, the pr esentence report, the sentenci ng 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 offens e, and the defendant’s potential forrehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1998); As hby , 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 t rial cour t properl y considered t he sentencing pr incipl es1 The re cord indic ates that A ppellant ha s two pre vious co nvictions fo r mar ijuana po ssess ion. In additi on, Appell ant has previ ous convictions for public intoxi cation, resisti ng arrest, drivi ng under the influence of an intox icant, and posse ssion of a weap on with inten t to go arm ed. -4- and all relevant facts and circ umsta nces, our revi ew is de novo wi th a presumption of correctness.

In determining th e length of Ap pellant’s sentenc es, the tri al c ourt stated thatinstea d of m erely granting Appel lant’s request for

maximum sentences, the court would follow t he princi ples and procedur es of the Sentenc ing 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 t hat enhancem ent factor (1) appl ied because Appellant

had a previous hi story of criminal convict ions in additi on to those
necessa ry to establ ish the appr opriate sentencing range. See Tenn. Code Ann. § 40-35-1 14(1) ( 1997). 1 The court also found that enh ancement factor (2) applied because Appellant was the leader

in an offense involv ing two or mor e persons. See Tenn. Code Ann. § 40-35-11 4(2) (1997). T he court also found t hat enhancement factor (8) appl ied because Appell ant had a previ ous histor y of unwillingnessto comply wi th condit ions of rel ea se int o the com munity. See Tenn
. Code Ann. § 4 0-35-11 4(8) (199 7). Finally, the court foun d that t he onl y mitiga tin g factor that applied was factor (1), that Appell ant’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 chall enge the tri al court’ s applicat ion of thethree enhancement factors, no r does h e conte nd that the trial court failed to apply any additionalmi tigati ng factors. Instead, Ap pellant simply m akes the co nclusory statementthat unde r the fa ct s of thi s case, his s entences are excessive. Not-5-

only is thi s unsupported al legation simpl y not su fficient to satisfy A ppella nt’s burden of demonstratingthat his sentences are i mproper, we concl ude in our de
novo review tha t, given Appell ant’s pri or criminalrecord, sentences often months and fifteen days for poss ession of marijuana and threemonths for driving on a revoked license a re entirely ap propriate in this case . This issu e has n o merit.

According ly, the j udgment of t he tr ial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, J UDGE