### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

une 21, 2000

STATE OF TENNESSEE v. JOHN ROY POLLY
Direct Appeal from the Circuit Court for Marshall County No. 13700 William Charles Lee, Trial Judge

No. M1999-00278-CCA-R3-CD - Filed October 27, 2000

In th is direct a

ppeal, the defendant argues that he was incorrectly sentenced as a “persistent offender.” We agree that the twenty-four hour merger rule bars use of one of his previous convictions and therefore reverse and remand for resentencing a s a “multiple offe n der” within Range II. Tenn. R. App. P. 3, App eal as of Right; Judgm

ent of the Circuit C

ourt Reversed; Remanded for Rese

ntencing

J OHN E VERETT W ILLI AM S , J., delivered the opinion of the court, in which D AVID H. W ELLES and J ERRY L. S MITH , JJ., joined.

Joh n E. Herb iso n, N ash vil le, Ten nes see, for the app ell ant , Jo hn R oy Po lly.

Paul G. Summers, Attorne y General & Reporter; Todd

R. Kell ey, Assistant Attorney General; William Michael McCown, D istric t Atto rney General; and Weakley E. (Eddie) Barnard, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION

Introduction

The defendant, John Roy Polly , appeals his sente

nce imposed afte

r a jury tria

l in Marshall County. Convicted of Count I aggravate d b urgl ary and Count II

attempt to commit rape, both Class C felonies, the defendant received f iftee n-year sentences, to be served concurrently

with each other but consecutively to a prior unrelated sentence. H e now complains that these sentences were in error, as, he argues, the trial court improperly classifi ed him as a “persist entof fender.” Accordingly, he asks this Court to reduce his sentenc e. After careful review, we agree that

t h e defend

ant was se

ntenced a

s a “persi

stent off ender” in error. We remandfor resentenci

ng as a Range I

I “multiple of

fender” with a s

entencing ran

ge between six and ten yea

rs for each cou

nt.-2- Facts

As the defendant’s only issue involves a sentencing matter, we provide her e only a brief outline of the facts. OnJune 8, 1998, t he defendant ap proached the vic

tim’s house and ask

ed to
u se the telephone. As the victim handed the phone to the defendant, who was stand ing outside , the defen dant push ed the door open a nd grabbed the v

ictim. The defend

ant continued to assault the victim, an d as they were st ruggling, the defenda nt stated that he int ended to rape the

victim. Fortunately, the victim managed to escape by striking the defendant with the phone.

The defendant was a

rrested, charg

ed, and ultim

ately found guilty by a jury of Count One aggravated

burglary and Count Two atte

mpt ed rape. Thereafter, the trial court conducted a sentencing hearing and sentenced the defendant as a “career offender” to two conc urrentfifteenyear terms to be served consecutive to an unrelated sentence. The trial court simultaneousl y attemptedto fashion an alternate sentence in the eve nt the Court of Criminal Appeals disagreed withthe “career of

fender” deter

mination. In th

e alter nate sentence th

e trial court stat

ed that if the defendant was determined to be a Range II I “persistent of

fender, ” then it would sentence the defendant to twelve years on the burglary conviction and eleven

years on the attempted rape conviction to be served consecutive with each other and consecutive to the unrelated sentence.

The defendant then filed a motion for a new trial and requested, a m ong other things, that the defendant was im

properly se

ntenced as a “career of

fender” rathe

r than a Range I

I “multiple offender.” After a hea

ring on the motion for a n ew trial, the tria

l court agreed

that it originally sentenced the defendant as a “career offender” improperly . The trial cour

t acknowled ged and attemptedto correct this error by entering an order. T hat ord er classif

ied the defenda

nt as a “persistent

offender” within Range III and sentenced him to fifteen years on ea ch cou nt concurrent

with each other.

This pronounceme

nt by the tria

l c ourt clearly abandoned its earlier proclaimed alternate sentence.
Analysis

The defendant’s sole argument is that he was improperly cl a ssified and sente

nced as a “persistent

offender.” Spe

cifically, relyin g on Te nn. Code Ann. § 40-35-107(b)(4), he argues t hat his seven forge

ry convicti

ons should only

count as three pr

ior felonies for s

e ntencin g purposes and therefore,

that his “persiste

nt offender” de

signation was in

error. Aft er careful review, we agr ee with the d efendant and remand for re sentencing.

Atsent encing, the court first determines the appropriate offender status based upon a defendant’s prior fel ony record. See Tenn. Code Ann. § 40-35-104. Submission of certified copies of the defendant’s prior convictions is prima facie evidence of the defendant’ s prior felony record. See Tenn. Code Ann. § 40-35-202(a). After determinat io n of the appropria

te status, the court then app li es the appro priate range to determine the minimum and maximum of the sentence available. See Tenn. Code Ann. §§ 40- 35-104 t o -108. A “multiple o ffender” is sentenced within Range II, a “persistent offender ” within Range III

, and a “c areer offender”-3-

recei ves the maximum sentence within Range III. See Tenn. Code Ann. § 40-35-106, -107, -108.

In this case, the State filed, first, a notice of intent to seek enha nced punish

ment and, second, an amended notic e of intent to seek

enhanced punishm

e n t. After the jury convicted the defend ant, the Stat e followed through on this intent and argued at the sentencing hearing that the defendant qualified as a “career offender.” In support, the State introduced c

ertified judgme

nts confirming that the defendant had been convicted of: (1) Theft, Case #6917, Maury County, Off ense date 07-18-91; (2) Forgery, Case # 11843, Count 14, Marshall County , Offense date 11-9-92; (3) Forgery, Case # 11843, Count 4, Marshall County , Offense date 11-10-92; (4) Forgery

, Case 11843, Count 8 , Marshall County , Offense date 1 1-10-92; (5) Forgery

, Case #11843, Count

10, Marshall County

, Offense date 1 1-10-92; (6) Forgery, Case # 11843, Count 12, Marshall County , Offense date 11-10-92; (7) Forgery, Case #11843, Count 6, Marshall County , Offense date 11-11-92; and (8) Forgery, Case #11843, Count 2, Marshall County , Offense date 11-18-92. All eight convic

tions were Class E f

elonies.

In response, the defendant testified that the checks forged on 11-9-92 , 11-10 -92, and 11- 11-92 were all passed in “about forty- eight hours,” “

in the same gene

ral vicinity,” and were all checks stolen from hi s gra ndfather. On cross-examination, the State inquired further into the prior forgery convictions, espe

cially the c

onvictions involv

ing ch ecks passed on 11-9-92, 11-10- 92, and 11-11-92. Through this question ing, t he State established that each of these checks were passedat different stor

es, each approxima

tely two miles

f rom each other, and on “three different days.”

The trial court considered this testimony, heard argu ment from counsel, and then concluded

that while certain convictions for the forged checks may well ha ve o ccurred within t wenty -four

hours of each other and while the offenses committed on 11-9-92, 11-10-92, and 11- 11-92 may have oc

curred all within fo rty-eight hours of each other, all of those convictions should count, for sentencing purposes, as s eparate convic tions. The trial co

urt reasoned tha

t § 40-35-107(b)(4) explicitly requires not only that the merg ed conv iction occur within twenty-four hours but also that the conviction be part of a “single co urse of conduct,” and that the defendant’s convictions did not constitute such.

Whilewe agree with the trial court that § 40-35-107(b)(4) certainly requires that the conviction or convictions be part of a “single course of conduct,” w e cannot agre e with its subsequent

conclusion that the defenda n t’s forgery convictions on 11-9, 11-10, and 11-11 do not
so qualify. Instead, we note several c ommonalities in the crimes which would tend t o support the conclusi on that the va rious forgeries were, in fact, all part of one continuing course of conduct: (1) all the checks were obtained from the same source; (2) all the checks were passed in the same manner; (3) all the checks were passed at similar locations; and (4) all the checks were passed within a four square mile area.-4-

Therefore, this Co urt, give n the uncontrover ted testimony

of the defendan

t that these three defenses occur

red within forty

-eight hours of each other, con cludes that one of

these offenses is barred by the twenty-four hour merger rul e. T hus , by our analysis, the defendant, for sentencing pur

poses, has four pr

ior felonies: (1) Theft on 7-18-91; (2) Forgery on 11-9-92; (3) Forgery on 11-11-92; and (4) Forgery 11-18-92. And, t hus, t he def endan t is a “ mult iple o ffend er” an d shou ld rec eive a sente nce wi thin Range II.

Whilewe come to this conclusion and must reverse the defendant’s sentencing, we do acknowledg e both the t rial court’s reasoning and the State’s appellate argument. First, the trial court was correct in a

sking whether or

not the various for

gery con victions consti

t uted a “single
course of conduct.” Indeed, such is a requirement for application of the twenty -four hour merger rule. However, consistent with State v. Horton , 880 S.W.2d 732 (Tenn. Crim. App. 1994), w e concludethat these forgeries, while each a separate criminal offense, we re ne verthele ss part of a “single course of conduct” for sentencing purposes . Second, we acknowledge the proposition argued b y the State and cited in State v. Birchfie ld , No. 03C01-9701-CR

-00025 (Tenn. Cri

m. App. filed Jan. 6, 1998, a t Knoxville), that inst

ances like this one

, where the defe

ndant seeks th e application of the twenty

-four hour rule a

nd the relevant c

onvictions occur o

n different day

s, it is the defendant’s responsibility to demonstrate that the two offenses occurred w ithin twenty-four hours of each other. In this case, proof of that fact is not overwhelming. The d efendant did

not t estify to the exact times he passed the checks; instead, he simply testified that the three offenses all occurred with “

forty-eig ht hours of each o

ther.” This

p roof is minimal; however, it is also, the only proof. The State did not attempt to rebut th is statement or otherwise impeach the defendant’s estimation nor did the trial court make any findings of fac t in this regard. Therefore, standing alone and unassa iled, this testimony

is sufficient to es

tablish, as requir

ed b y Bir chfield , the “timing” of the offenses.

Conclusion

For these reasons, we reverse the sentences as imposed by the tr ial court and remand for further proceedings consistent with this opinion.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE