FILED

February 24, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804-CC-00164

)

Appellee, )

)

) MOORE COUNTY

VS. )

) HON. CHARLES LEE

NATHANIEL ALLEN, ) JUDGE

)

Appellant. ) (Direct Appeal - Possession of 

) Marijuana/Driving

) on Revoked Licensed)

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. MCGOWN JOHN KNOX WALKUP

113 North Court Square Attorney General and Reporter

Waverly, TN 37185

(On Appeal Only) DARYL J. BRAND

Associate Solicitor General

JOHN HARWELL DICKEY 425 Fifth Avenue North

District Public Defender Nashville, TN 37243

105 S. Main Street

Fayetteville, TN 37334 MIKE MCCOWEN

(At Trial and of Counsel on Appeal) District Attorney General

ROBERT G. CRIGLER

Assistant District Attorney

Moore County Courthouse

Lynchburg, TN

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On January 26, 1998, a Moore County 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 12, 1998, the trial court

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

probation. Appellant contends that the trial court erroneously imposed longer

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

of the trial court.

FACTS

Deputy 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

smoking marijuana. Shortly thereafter, Appellant’s passenger reached into her

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

Campbell testified that at this point, Appellant stated that the marijuana cigarette

belonged to him. 
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Appellant testified in his own behalf and his testimony differed slightly from

that of Deputy Campbell in that Appellant testified that he was the one who gave

the marijuana cigarette to the officers. 

ANALYSIS

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 appellate court shall conduct a de 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 affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.”

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

must consider all the evidence, the presentence report, the sentencing principles,

the enhancing and mitigating factors, argum ents of counsel, the defendant’s

statements, the nature and character 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. Because the record in this

case indicates that the trial court properly considered the sentencing principles
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The re cord indic ates that Appellant ha s two pre vious co nvictions fo r marijuana 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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and all relevant facts and circumstances, our review is de novo with a

presumption of correctness.

In determining the length of Appellant’s sentences, the trial court stated

that instead of merely granting Appellant’s request for maximum sentences, the

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

 The trial court then found that three enhancement factors applied to Appellant’s

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

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

necessary 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. § 40-35-114(2) (1997). The 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. § 40-35-114(8) (1997). Finally, the court found that the only

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

neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-

35-113(1) (1997). 

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

enhancement factors, nor does he contend that the trial court failed to apply any

additional mitigating factors. Instead, Appellant simply makes the conclusory

statement that under the facts of this case, his sentences are excessive. Not
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only is this unsupported allegation simply not sufficient to satisfy Appellant’s

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

novo review that, 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 are entirely appropriate in this case. This issue has no merit.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE