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Allen v. State

The defendant failed to show that the trial court improperly considered his prior conviction in imposing the maximum 10-year sentence for his convictions.

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Following a jury trial, Jesse Allen, Jr., was convicted on two counts of violating the Georgia Controlled Substances Act for selling marijuana and possessing marijuana with the intent to distribute.1 On appeal, he contends that the trial court committed plain error in considering improperly presented evidence at sentencing and that he received ineffective assistance of counsel. For the reasons set forth below, we affirm. Immediately following Allen’s conviction for the sale of marijuana and the possession of marijuana with intent to distribute, the trial court dismissed the jury and began the sentencing hearing. The trial court inquired whether the State had any evidence in aggravation to offer, and the State responded that it did not. However, following defense counsel’s offer of evidence in mitigation, the State responded that Allen did not qualify for the low end of the range of sentencing because of a prior conviction. Recognizing that the State had not filed notice of its intent to introduce Allen’s prior conviction as evidence in aggravation of punishment, the trial court expressed doubt that such evidence could be considered. Shortly thereafter, the State conceded that due to its failure to file notice, the trial court could not consider Allen’s prior conviction. At the conclusion of the hearing, Allen received the maximum ten-year sentence to be served in prison. See OCGA § 16-13-30 j 2. This appeal followed.

1. Allen contends that the trial court committed plain error in considering his prior conviction in aggravation of punishment despite the State’s failure to file notice of its intent to introduce such evidence. However, the record reflects that the trial court did not consider this evidence.

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