IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 11, 2011

STATE OF TENNESSEE v. DANIEL LEON LEE

Appeal from the Circuit Court for Maury County

No. 17986 Jim T. Hamilton, Judge

No. M2010-00103-CCA-R3-CD - Filed March 23, 2011

Appellant, Daniel Leon Lee, was convicted by a Maury County Jury of attempted possession

of cocaine over .5 grams and simple possession of marijuana. After a sentencing hearing,

the trial court sentenced him to an effective sentence of ten years. On appeal, Appellant

challenges the sufficiency of the evidence and his sentence. We affirm Appellant’s

convictions for attempted possession of cocaine over .5 grams and possession of marijuana

because we determine that the evidence was sufficient to support the convictions. However,

we determine that the trial court improperly utilized convictions that appeared in Appellant’s

presentence report but did not appear on the notice to seek enhanced punishment in order to

establish Appellant’s sentencing range. Additionally, the trial court failed to place adequate

findings of fact and conclusions of law with regard to sentencing on the record.

Consequently, we affirm in part, reverse in part and remand the matter for a new sentencing

hearing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in

Part; Reversed in Part; and Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and

ROBERT W. WEDEMEYER, JJ., joined.

Gary Howell, Mt. Pleasant, Tennessee, for the appellant Daniel Leon Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

Appellant was indicted in June of 2008 by the Maury County Grand Jury for

possession of more than .5 grams of cocaine with the intent to sell and possession of

marijuana. Prior to trial, the State filed a notice of intent to seek enhanced punishment. In

the notice, the State indicated that Appellant should be sentenced as a Career Offender due

to one conviction for aggravated assault, five convictions for possession of cocaine with the

intent to sell, and one conviction for possession of a weapon by a felon. All of the

convictions except for the aggravated assault conviction listed a conviction date of

“12/13/01.”

At trial, the State presented the testimony of Sergeant Haywood of the Columbia

Police Department. In January of 2008, Sergeant Haywood worked with a confidential

informant to conduct a controlled buy of cocaine from a man known as “Putt.” Sergeant

Haywood observed the informant dial the telephone number (615) 578-2243, and arrange to

purchase cocaine. Sergeant Haywood provided the informant with money. During the drug

transaction, the informant was wired with an audio device. The informant went to the

residence at 518 West 12 Street, purchased cocaine, and returned the cocaine to Sergeant

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Haywood. As a result of the transaction, Sergeant Haywood secured a search warrant for the

residence.

When the search warrant was executed, Appellant was found sleeping in one of the

bedrooms. The other occupants of the residence were Denita and Robert Jones. The

bedroom occupied by Appellant was searched by Officer Brian Gray. During the search, the

officer found a wallet and cell phone belonging to Appellant on the nightstand. The phone

number of the phone matched the phone number that was called by the informant. A small

bag of marijuana was located in the closet of the bedroom and a bag of crack cocaine was

found in the pocket of a suit in the closet. The suit looked as if it belonged to a child. The

closet also held some paperwork that included health insurance information, check stubs, and

bills. The paperwork had Appellant’s name on it and included a power bill addressed to

Appellant at 518 West 12 Street.

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The substances that were seized during the execution of the warrant were tested by

the Tennessee Bureau of Investigation. The police recovered 3.1 grams of marijuana and 17

grams of cocaine.

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At the conclusion of the jury trial, Appellant was found guilty of attempted possession

of more than .5 grams of cocaine and possession of marijuana. The trial court held a

sentencing hearing, at which Appellant was sentenced to an effective sentence of ten years.

After the sentencing hearing, Appellant filed a motion for new trial and amended motion for

new trial. The trial court held a hearing and denied the motion.

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Appellant complains on appeal that the evidence is insufficient to support his

convictions and that the trial court improperly used prior convictions to enhance his

sentencing range when those convictions did not appear on the notice to seek enhanced

punishment that was filed by the State.

Analysis

Appellant argues on appeal that his convictions were based on constructive possession

and that it was insufficient to establish his guilt. Specifically, Appellant argues that the

circumstantial evidence at trial was not strong enough to “eliminate every other reasonable

theory except that of guilt.” The State, on the other hand, insists that the evidence is

sufficient.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to

review that claim according to certain well-settled principles. A verdict of guilty, rendered

by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses

and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the

accused is originally cloaked with a presumption of innocence, the jury verdict of guilty

removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W .2d

913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

demonstrate the insufficiency of the convicting evidence. Id. The relevant question the

reviewing court must answer is whether any rational trier of fact could have found the

There is no transcript from the hearing on the motion for new trial in the record. There is, however, an affidavit

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from the court reporter assigned to Appellant’s judicial district in which she asserts that there was no court reporter

present on the date of the hearing on the motion for new trial. As is well-established, it is Appellant’s responsibility to

convey an accurate account of what transpired with respect to the issues presented on appeal. State v. Hopper, 695

S.W.2d 530, 537 (Tenn. Crim. App. 1985). Ordinarily, absent the transcript of the hearing on the motion for new trial

containing the trial court’s rationale for denial, this Court must presume the correctness of the ruling. State v. Baron,

659 S.W.2d 811, 815 (Tenn. Crim. App. 1983). Appellant has properly included an affidavit in the record explaining

the reason for the missing transcript. Moreover, in light of our ultimate decision in the case herein, we determine that

the rationale for the trial court’s denial is unnecessary for our review. Thus, we choose to address Appellant’s issues on

appeal.

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accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.

P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is

precluded from re-weighing or reconsidering the evidence when evaluating the convicting

proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own

“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,

805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

weight and value to be given to evidence, as well as all factual issues raised by such

evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990).

Moreover, the guilt of a defendant as well as any fact required to be proved may be

established by direct evidence, by circumstantial evidence, or by a combination of both. See

State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). “The standard of

review ‘is the same whether the conviction is based upon direct or circumstantial evidence.’”

State v. Genaro Dorantes, __ S.W.3d __, No. M2007-01918-SC-R11-CD, 2011 WL 208306,

at *7 (Tenn. Jan. 25, 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

In addition, the weight of the circumstantial evidence is for the jury to determine, and this

Court may not substitute the jury’s inferences drawn from the circumstantial evidence with

our own inferences. See Pruitt v. State, 460 S.W.2d 385, 391 (Tenn. Crim. App. 1970).

Appellant was found guilty of attempted possession of cocaine that weighed .5 grams

or more, a violation of Tennessee Code Annotated section 39-17-417(a)(4), which makes it

a crime to knowingly “possess a controlled substance with intent to manufacture, deliver or

sell the controlled substance.” Under Tennessee Code Annotated section 39-12-101(a), a

person commits criminal attempt who, acting with the kind of culpability otherwise required

for the offense:

(1) Intentionally engages in action or causes a result that would constitute an

offense, if the circumstances surrounding the conduct were as the person

believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and

believes the conduct will cause the result without further conduct on the

person’s part; or

(3) Acts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the

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person believes them to be, and the conduct constitutes a substantial step

toward the commission of the offense.

A violation of Tennessee Code Annotated section 39-17-417(a)(4) is a class B felony if the

amount of the cocaine possessed is more than .5 grams. T.C.A. § 39-17-417(c)(1). A

conviction for criminal attempt of an offense results in one classification lower than the most

serious crime attempted, in this case making Appellant’s conviction a class C felony. T.C.A.

§ 39-12-107(a). Appellant was also found guilty of simple possession of marijuana in

violation of Tennessee Code Annotated 39-17-418, which makes it an offense to “knowingly

possess or casually exchange a controlled substance, unless the substance was obtained

directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the

course of professional practice.” Thus, in order to convict Appellant, the State was required

to show that he attempted to possess cocaine that weighed .5 grams or more and that

Appellant knowingly possessed marijuana. The State unquestionably proved beyond a

reasonable doubt that the substance found in the bag was cocaine and that the weight of the

cocaine was over .5 grams. Further, the State proved that the substance found in the closet

was marijuana. Thus, the question is whether Appellant attempted to knowingly possess the

cocaine with the intent to sell or deliver it and whether Appellant knowingly possessed the

marijuana.

“[A] person . . . acts knowingly with respect to the conduct or to circumstances

surrounding the conduct when the person is aware of the nature of the conduct or that the

circumstances exist.” T.C.A. § 39-11-302(b). A conviction for possession of cocaine or

marijuana may be based upon either actual or constructive possession. State v. Shaw, 37

S.W.3d 900, 903 (Tenn. 2001); State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App.

1991); State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Before a person can

be found to constructively possess a drug, it must appear that the person has the power and

intention at any given time to exercise dominion and control over the drugs either directly

or through others. State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997); State

v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981). The mere presence of a person

in an area where drugs are discovered is not, alone, sufficient to support a finding that the

person possessed the drugs. Cooper, 736 S.W.2d at 129. However, as stated above,

circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726

S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim.

App. 1993). Further, the trier of fact may infer from the amount of the drugs, along with

relevant facts surrounding the arrest, that the drugs were possessed for the purpose of selling

them. T.C.A. § 39-17-419; see also State v. Willie Earl Kyles, Jr., No.

W2001-01931-CCA-R3-CD, 2002 WL 927604, at *2 (Tenn. Crim. App., at Jackson, May

3, 2002), perm. app. denied, (Tenn. Oct. 21, 2002) (concluding that jury could infer

possession of drugs with intent to sell or deliver from amount of drugs and circumstances

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surrounding arrest of defendant); State v. James R. Huntington, No. 02C01-9407-CR-00149,

1995 WL 134589, at *3-4 (Tenn. Crim. App., at Jackson, Mar. 29, 1995), perm. app. denied,

(Tenn. Jul. 10, 1995) (determining that jury could infer intent to sell marijuana primarily

from large quantity of marijuana in defendant’s possession).

The facts, viewed in a light most favorable to the State, demonstrated that a

confidential informant placed a telephone call to a person and arranged to buy cocaine. After

the controlled buy was completed at the residence located at 518 West 12 Street, officers

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obtained a search warrant. During the search, Appellant was found sleeping in one of the

bedrooms. In the bedroom, police found a wallet and cell phone belonging to Appellant.

The number of the cell phone belonging to Appellant matched the number of the person

whom the informant called to arrange the purchase of cocaine. In the closet of the room

where Appellant was found sleeping, an officer located a bag containing 3.1 grams of

marijuana on the floor and a bag containing 17 grams of crack cocaine in the pocket of a

child’s suit hanging in the closet. The closet also contained paperwork addressed to

Appellant, including a power bill listing Appellant’s address as 518 West 12 Street.

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Appellant denied living at the residence and denied that he was the owner of the drugs. The

jury clearly discredited Appellant’s testimony, a decision that was within their power. The

evidence was sufficient to establish that Appellant constructively possessed the drugs.

Appellant is not entitled to relief on this issue.

Sentencing

Next, Appellant complainsthat he wasimproperly sentenced as a Range III, Persistent

Offender. Specifically, Appellant complains that the State’s notice of intent to seek

enhanced punishment did not contain the requisite number of felonies to establish the range.

Additionally, Appellant complains that the trial court utilized convictions from Washington

State that did not appear on the notice of intent to seek enhanced punishment in order to

satisfy the requisite number of felonies that led to Appellant’s classification as a Persistent

Offender. Appellant argues that by allowing the State to utilize these convictions to enhance

his sentence, he was prejudiced by being forced to serve a longer sentence. The State

disagrees, arguing that the State provided Appellant with fair notice and that any defect in

the notice was not prejudicial to Appellant.

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo

review on the record of the issues. The review shall be conducted with a presumption that

the determinations made by the court from which the appeal is taken are correct.” T.C.A. §

40-35-401(d). “[T]he presumption of correctness ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting

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State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies

inappropriate mitigating and/or enhancement factors or otherwise fails to follow the

Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant

bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at

169.

In making its sentencing determination, the trial court, at the conclusion of the

sentencing hearing, first determines the range of sentence and then determines the specific

sentence and the appropriate combination of sentencing alternatives by considering: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;

(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature

and characteristics of the criminal conduct involved; (5) evidence and information offered

by the parties on the enhancement and mitigating factors; (6) any statistical information

provided by the administrative office of the courts regarding sentences for similar offenses,

(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;

and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);

State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

When imposing the sentence within the appropriate sentencing range for the

defendant:

[T]he court shall consider, but is not bound by, the following advisory

sentencing guidelines:

(1) The minimum sentence within the range of punishment is the sentence that

should be imposed, because the general assembly set the minimum length of

sentence for each felony class to reflect the relative seriousness of each

criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate, by

the presence or absence of mitigating and enhancement factors set out in §§

40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (emphasis added). However, the weight given by the trial court to the

mitigating and enhancement factors are left to the trial court’s discretion and are not a basis

for reversal by an appellate court of an imposed sentence. Carter, 254 S.W.3d at 345. “An

appellate court is . . . bound by a trial court’s decision as to the length of the sentence

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imposed so long as it is imposed in a manner consistent with the purposes and principles set

out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

“The amended statute no longer imposes a presumptive sentence.” Carter, 254

S.W.3d at 343. As a result of the amendments to the Sentencing Act, our appellate review

of the weighing of the enhancement and mitigating factors was deleted when the factors

became advisory, as opposed to binding, upon the trial court’s sentencing decision. Id. at

344. Under current sentencing law, the trial court is nonetheless required to “consider” an

advisory sentencing guideline that is relevant to the sentencing determination, including the

application of enhancing and mitigating factors. Id. The trial court’s weighing of various

mitigating and enhancement factors is now left to the trial court’s sound discretion. Id.

To facilitate appellate review, the trial court is required to place on the record its

reasons for imposing the specific sentence, including the identification of the mitigating and

enhancement factorsfound, the specific factssupporting each enhancement factor found, and

the method by which the mitigating and enhancement factors have been evaluated and

balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492

(Tenn. 2001). If our review reflects that “the trial court appl[ied] inappropriate mitigating

and/or enhancement factors or otherwise fail[ed] to follow the Sentencing Act, the

presumption of correctness fails” and our review is de novo. Carter, 254 S.W.3d at 345.

A brief recitation of the facts involved is necessary to facilitate our review of

Appellant’s sentencing issue. After indictment, the State filed a notice of intent to seek

enhanced punishment, in accordance with Tennessee Code Annotated section 40-35-202.

The notice was filed on November 18, 2008, nearly six months prior to trial and well in

advance of the ten day requirement contained in the statute. Id. In the notice, the State listed

the following prior convictions:

#10751 Maury Circuit Aggravated Assault 11/13/98

#14614 Maury Circuit Poss. Cocaine w/intent to sell 12/13/01

#14615 Marshall Circuit Poss. Cocaine w/intent to sell 12/13/01

#14616 Marshall Circuit Poss. Cocaine w/intent to sell 12/13/01

#14617 Marshall Circuit Poss. Cocaine w/intent to sell 12/13/01

#14618 ct.1 Marshall Circuit Poss. Cocaine w/intent to sell 12/13/01

#14618 ct.4 Marshall Circuit Poss. Weapon - [ ] Felon 12/13/01

As recounted above, Appellant proceeded to trial and was convicted of attempted

possession of cocaine weighing .5 grams or more and possession of marijuana. A sentencing

hearing was held on July 14, 2009. At the hearing, counsel for Appellant raised a number

of objections to the notice of intent to seek enhanced punishment. Specifically, counsel

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argued that the trial court needed to determine whether two of the prior convictions, in case

numbers #14615 and #14616, occurred more than twenty-four hours apart and counted as one

or two prior convictions for purposes of establishing Appellant’s range. Next, counsel for

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Appellant argued that the State was limited to those convictions presented in the notice.

Counsel for the State then notified the trial court that in the presentence report, there were

additional felony convictions from the State of Washington upon which the State intended

to rely on order to satisfy the requirements to establish Appellant as a Range III, Persistent

Offender. The trial court heard the rest of the proof and took the matter under advisement.

The trial court issued an order in which it determined that it was not clear whether the

two convictions in cases #14615 and #14616 occurred more than twenty-four hours apart.

Thus, they could only be considered one prior conviction for purposes of establishing the

sentencing range. Further, the trial court determined that the State was not limited to using

only the prior felonies listed in the notice of intent to seek enhanced punishment. Then,

without specifying findings of fact and conclusions of law or the enhancement/mitigating

factors utilized, the trial court made the following statement:

The State can consider the priors [even though not listed in the notice of intent

to seek enhanced punishment] and the defendant is at least a Range III

offender and the punishment range is 10-15 years. These priors are listed in

the presentence report. Absent a showing that the report is based on unreliable

sources or is other wise inaccurate, a trial court is entitled to rely on the

contents of a presentence report. . . . [T]he defendnat shall and is hereby

sentenced to ten (10) years as a Range III Offender.

Appellant was convicted of a Class C felony. The sentencing range for attempted

possession of cocaine weighing .5 grams or more, a Class C felony, is three to six years for

a Range I, Standard Offender, six to ten years for a Range II, Multiple Offender, and ten to

fifteen years for a Range III, Persistent Offender. T.C.A. § 40-35-112(b)(3), (c)(3). A

multiple offender is a defendant who has received:

(1) A minimum of two (2) but not more than four (4) prior felony convictions

within the conviction class, a higher class, or within the next two (2) lower

felony classes . . .; or

The State conceded during this discussion that the last three convictions listed on the range notice occurred

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on the same day and, thus, constituted one prior conviction for purposes of establishing a sentencing range.

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(2) One (1) Class A prior felony conviction if the defendant’s conviction is a

Class A or B felony.

T.C.A. § 40-35-106(a). A persistent offender is a defendant who has received:

(1) Any combination of five (5) or more prior felony convictions within the

conviction class or higher, or within the next two (2) lower felony classes, . .

.; or

(2) At least two (2) Class A or any combination of three (3) Class A or Class

B felony convictions if the defendant’s conviction offense is a Class A or B

felony.

T.C.A. § 40-35-107(a). To satisfy a prior conviction for multiple offender or persistent

offender status, a prior conviction includes “convictions under the laws of any other state,

government or country which, if committed in this state, would have constituted an offense

cognizable by the laws of this state.” T.C.A. §§ 40-35-106(b)(5), -107(b)(5). In order to

label a defendant as a persistent offender, the trial court has to determine beyond a reasonable

doubt that the defendant has the requisite prior felonies. Tennessee Code Annotated section

40-35-202(a) provides:

If the district attorney general believes that a defendant should be sentenced

as a multiple, persistent or career offender, the district attorney general shall

file a statement thereof with the court and defense counsel not less than ten

(10) days before trial or acceptance of a guilty plea; provided, that the notice

may be waived by the defendant in writing with the consent of the district

attorney general and the court accepting the plea. The statement . . . must set

forth the nature of the prior felony convictions, the dates of the convictions and

the identity of the courts of the convictions. The original or certified copy of

the court record of any prior felony conviction, bearing the same name as that

by which the defendant is charged in the primary offense, is prima facie

evidence that the defendant named therein is the same as the defendant before

the court, and is prima facie evidence of the facts set out therein.

In other words, the statute requires at a minimum that the State file “(1) written notice, (2)

clearly expressing the State’s intention to seek sentencing outside of the standard offender

range, (3) setting forth the nature of the prior felony conviction, the dates of the convictions,

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and the identity of the courts of the convictions.” State v. Livingston, 197 S.W.3d 710,

713-14 (Tenn. 2006). The purpose of the statutory notice requirement is to provide a

defendant with fair notice that he or she is subject to greater than the standard sentencing

range, to facilitate plea agreements, to enable the defendant to make an informed plea, and

to aid trial strategy. State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990); State v. Taylor, 63

S.W.3d 400, 412 (Tenn. Crim. App. 2001). Our supreme court has held that “perfect” notice

is not required, but fair notice must be provided. Livingston, 197 S.W.3d at 713. This means

that “when the State has substantially complied with Section 40-35-202(a), an accused has

a duty to inquire about an ambiguous or incomplete notice and must show prejudice to obtain

relief.” Taylor, 63 S.W.3d at 412; State v. Cooper, 321 S.W.3d 501, 507 (Tenn. 2010).

However, the State’s failure to file any notice is grounds for re-sentencing. Id.; State v.

Carter, 121 S.W.3d 579, 585 (Tenn. 2003); see State v. Pender, 687 S.W.2d 714, 719-20

(Tenn. Crim. App. 1984).

It is uncontested that the State filed a notice of intent to seek enhanced punishment

more than ten days prior to trial. The question is not the existence of the notice, but rather

the adequacy of the notice. The notice filed herein contained seven prior convictions from

Maury and Marshall Counties, at first glance enough to satisfy at least the requirements for

persistent offender status in accordance with Tennessee Code Annotated section

40-35-107(a). At the sentencing hearing, counsel for the State attempted to utilize eight

additional convictionsfrom the State of Washington including convictionsfor evading arrest,

attempted possession of cocaine, criminal trespass, assault, possession of cocaine, and three

convictions for second degree burglary all of which were omitted from the notice. Appellant

acknowledged these convictions at the sentencing hearing on cross-examination but argued

that they should not be utilized because they were not in the notice. Additionally, counsel

for Appellant argued that some of the convictions contained within the notice occurred on

the same day and should only count as one prior conviction for purposes of establishing the

range.

This Court recently examined a strikingly similar issue in State v. Melvin Shorty, No.

W2009-02284-CCA-R3-CD, 2010 WL 5313268 (Tenn. Crim. App., at Jackson, Dec. 20,

2010). In Melvin Shorty, the State amended the notice to seek enhanced punishment by

adding two out-of-state felony convictions the day before sentencing. 2010 WL 5313268,

at *1. The lower court determined that the amended notice failed to substantially comply

with the requirements of Tennessee Code Annotated section 40-35-202. Id. On appeal, this

Court examined a multitude of cases interpreting the notice requirement of Tennessee Code

Annotated section 40-35-202 and determined that the trial court properly denied the State the

ability to utilize the amended notice because the defendant suffered prejudice as a result of

the State’s actions. Id.

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As part of its analysis in Melvin Shorty, this Court looked at the facts and compared

them to the cases of State v. James Tyrone Harbison, No. 03C01-9808-CR-00271, 1999 WL

804056 (Tenn. Crim. App., at Knoxville, Oct. 6, 1999), perm. app. denied, (Tenn. Apr. 10,

2000) and State v. Nathaniel Banks, No. W2008-02202-CCA-R3-CD, 2009 WL 4638097

(Tenn. Crim. App., at Jackson, Dec. 8, 2009), perm. app. denied, (Tenn. May 11, 2010).

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Both of those cases are instructive herein as well. In James Tyrone Harbison, the defendant

was sentenced as a persistent offender. 1999 WL 804056, at *6. The notice listed five

felonies but two of the offenses occurred on the same date and therefore counted as a single

conviction. Id. At the sentencing hearing, the State presented evidence that the defendant

had seven prior felony convictions. Id. The defendant did not contest any of these

convictions at the hearing, and he was sentenced as a persistent offender. Id. On appeal in

James Tyrone Harbison, the defendant argued that the notice of enhancement was

insufficient because technically it only listed four convictions. Id. This Court determined

that the State substantially complied with the notice requirements of section 40-35-202(a),

thereby upholding the sentence because the defendant failed to show prejudice because

prejudice was not established simply by the fact that the defendant was sentenced within the

proper range. Id. (citing State v. Gilmore, 823 S.W.2d 566, 571 (Tenn. Crim. App. 1991).

The defendant also failed to object to the State’s notice at the sentencing hearing. Id.

In Nathaniel Banks, the State filed a notice of enhancement and an amended notice,

both alleging that the defendant should be sentenced as a multiple offender. 2009 WL

4638097, at *6. The notices only listed one prior conviction, but the trial court sentenced the

defendant as a multiple offender based on other felonies listed in the presentence report. Id.

This Court found that the State substantially complied with the notice requirements of section

40-35-202(a). Again, the trial court held that the defendant did not show prejudice. Id.

In Melvin Shorty, the Court determined:

In consideration of the foregoing cases [James Tyrone Harbison and

Nathaniel Banks], we agree with the trial court and hold that the notice of

enhancement was insufficient. The record in this case shows that the State was

aware of the potential Wisconsin convictions prior to trial based on a National

Crime Information Center (“NCIC”) report. The State explained, however,

that the disposition of the Wisconsin matters was “indeterminent” until the day

before sentencing. . . .

We note that Nathaniel Banks has been designated as “Not for Citation” by the Tennessee Supreme Court.

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We are not relying on the analysis of Nathaniel Banks herein, merely noting that this Court looked at the facts in making

its decision in Melvin Shorty.

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. . . .

In our view, the notice did not substantially comply with the

requirements of section 40-35-202(a) because (1) it failed to specify a

particular range of punishment and (2) it did not identify the felonies upon

which the State intended to rely for enhanced punishment. At a minimum and

as noted by the trial court, the State could have attached Shorty’s criminal

history to the notice of enhanced punishment. We recognize this court’s

decision in Taylor, which concluded substantial compliance despite the

notice’s failure to specify a particular sentencing range. We also acknowledge

the decisions in James Tyrone Harbison and Nathaniel Banks, which

concluded substantial compliance despite the notices’ failure to properly

identify the supporting felonies. Unlike those case [sic], the notice here did

not specify the sentencing range and failed to identify the felonies supporting

an enhanced sentence. Based on these combined deficiencies, the notice was

equivalent to the “empty notice” provided in Adams. 788 S.W.2d at 559.

Because the State did not substantially comply with the notice requirements of

section 40-35-202(a), Shorty was under no duty to inquire about the

incomplete notice or show prejudice. Id. Therefore, the trial court did not err

in excluding evidence of the Wisconsin felonies and sentencing Shorty as a

standard offender. The State is not entitled to relief.

2010 WL 5313268, at *5 (footnote omitted). Likewise, we determine that the notice herein

failed to substantially comply with Tennessee Code Annotated section 40-35-202. While it

certainly specified a range of punishment, the notice omitted multiple felony convictions that

the State later attempted to utilize in order to establish the requisite number of prior felonies

required to place Appellant in the category of a Persistent Offender. This is not the type of

notice contemplated by the statute and resulted in prejudice to Appellant in that he was not

able to fully defend himself at the sentencing hearing. We acknowledge that a defendant is

not presumed ignorant of his prior record. See State v. Debro, 787 S.W.2d 932, 934 (Tenn.

Crim. App. 1990). However, the notice in this case completely failed to apprise Appellant

of the prior convictions that the State would be utilizing to enhance his offender status. In

fact, Appellant testified at the sentencing hearing that during discussions with his attorney

prior to trial and the sentencing hearing, they discussed the possibility that the convictions

listed in the notice were not sufficient to establish the range alleged by the State due to the

fact that several of the convictions would only constitute one conviction for enhancement

purposes. There is no explanation by the State as to why the Washington convictions were

not included in the first notice filed by the State some six months prior to trial. Additionally,

there is no explanation from the State as to why an amended notice was not filed prior to

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trial. Thus, the trial court erred in allowing the State to utilize these convictions to establish

the range, and we must remand the matter for resentencing.

Additionally we note that it is well-established that the record of the sentencing

hearing is part of the record of the case and “shall include specific findings of fact upon

which application of the sentencing principles was based.” T.C.A. § 40-35-209(c). The

purpose of recording the court’s reasoning is to guarantee the preparation of a proper record

for appellate review. T.C.A. § 40-35-210(e); State v. Ervin, 939 S.W.2d 581, 584 (Tenn.

Crim. App. 1996).

Here, the record of the sentencing hearing is included in the record on appeal. Upon

review, it is clear that the trial court did not recite the considerations required by statute prior

to making a sentencing determination. Moreover, the trial court made no findings of fact,

the record does not demonstrate how the trial court considered the applicable sentencing laws

and principles as pertaining specifically to Appellant’s case, and the trial judge did not make

specific findings with respect to its application of enhancement and mitigating factors.

Consequently, we reverse the judgments of the trial court and remand the case for further

proceedings, including a sentencing hearing. On remand, the trial courtshould place specific

findings of fact on the record as to Appellant’s sentence.

Conclusion

For the foregoing reasons, Appellant’s convictions are affirmed. However, the matter

is reversed and remanded to the trial court for resentencing in accordance with this opinion.

___________________________________

JERRY L. SMITH, JUDGE

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