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

uly 11, 2001 STATE OF TENNESSEE v. COURTN EY ANDERSON Direct Appeal from the Criminal Court for Shelby County No. 97-09924, 97-01093-97, 97-08272-73, 97-09654-60 Joseph B. Dailey, Judge

No. W2000-02071-CCA-R3-CD - Filed August 13, 2001

The Appellant,Courtney Anderson, was indicted by a Shelby County Gran

d Jury on multiple

counts of theft of property, forgery , and on e count of misdemeanor possession of a handgun. Under the terms of a plea agre

eme nt, Anderson pled guilty to a reduced number of the charg ed offenses and was sentenced to an extende d t erm in the Department of Correction. The resulting convictions reflect class C, D and E grade felony offenses. The trial cour t found Anderson to be a career offender for all convictions an

d ordered conse

cutive sentence

s. In this appeal, Anderson contends that the effective sentence imposed by the trial court is excessive. After review, we f

ind that Anderson’s designation as a career offender for the class C felony convictions was error. Furthermore, we are unable to reconcile the effective sentence pronounced by the trial court with the sentences reflected by the judgment of conviction documents presented on appeal. Accordingly, we remand for clarification or correction of the sentence imposed and for re

sentencing on th

e class C felony con

victions.
Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court Reverse

d and Remanded. D AVID G. H AYES , J., delivered the opinion of the court, in w hich J E RRY L. S MITH , J. and A LAN E. G LENN , J., joined. William L. Johnson, Memphis, Tennessee, for the Appellant, Courtney Anderson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor G eneral; Kim R. Helper, Assistant Attorney General; Amy Weirich, Assistan t District Attorney General, for the Appellee, State of Tennessee.-2- OPINION Factual Backgrou

nd During the eleven-month period between April 1996 and February

1997, the Appellant, by means of forgery, fraudulently obtainedpersonal credit

cards, cash, jewelry, car rentals, apartment leases and other numerous services and property. See Appendix A. As a result of these unlawful activities,the Appellant was indicted by a Shelby County Grand Jury on eight

counts of felony theft of property, seventeen counts of forgery and one count of misdemeanor possession of a handgun in a public place. The

Appellant proceede d to trial on one count of class C theft and one count of for gery. Following his jury conviction for these offenses, he rece ived consec utive sentences of fifteenyears for theft as a persistent offender and six y ears for forg ery as a career offender. See Appendix A (97-08 49 7; 97-08498). After his convictions were affirmed by this court on direct appeal, the Appellant negotiated a plea agreement on the remaining charges. See State v. Coutney Anderson , No.W2000-00244-CCA-R3-CD (Tenn. Crim. App. at Jackson, Jan. 30, 2001). Prio rto th e sentencing hearing, the State filed notice of its intent to seek enhanced punishment“as a multiple offender pursuant to Tenn. Code Ann. § 40-35-106, a persistent offender pursuant to Tennessee Code Annotated, 40-35-108, as applicable.” At tached to the notic

e was a compilation of the Appellant’s prior record of indict

ments with the date

s and courts

of conviction. In addition, the State attached to this form sup porti ng documents which included the respecitve indictmentand judgment of conviction for each listed conviction. We note, however, that the State’s compiledlist

of convictions ca

nnot be reconcile

d with the supporting documents, e.g., the number of convictions and the

class of convicti

ons are in dispute a

nd a number of the

indictments a

re no t supported by proof of a conviction. See Appendix B. A sentencing hea

ring was h

eld on July 21, 2000. The following colloquy occurred a t the hearing. ASSISTANT

DISTRICT

ATTORNEY: . . . Accordingto my records, he should be facing sentencing today on ten E felonies. I t’s the State’s position that he is career on those; six D felonies; four C felonies; and one A misdemeanor. And, again, ac cording to the proof that we have submitted, he would be career on a ll thos e felonies. COURT: Includi

ng the C felonies ? ASSISTANT DI

STRICT ATTORNE

Y: Yes.

. . . COURT: . . .Do you take issue to that, Mr. Johnson?1 Generally, failur e to ti mely object t

o an error at

trial precludes review of

the error on a ppeal. See Tenn. R. App. P . 36(a); see also Waterhouse v. Perry , 260 S.W.2d 176 (Tenn.1953) (a party cannot complain of a si tuation as error when he, himself, cr eated the sit

uation).The error cannot be ignored or

considered waived, however, when the error results i n an illegal s

entence. “[A] judgment imposed by a trial court in dir ect contravention of express statutory provisions

regarding sentencing

is ill egal and is subject t

o being set aside at

any time, even if it

has become final.” State v. Mahler , 735 S.W.2d 226, 228 ( Tenn. 1987) (ci

ting State v. Burkhart , 566 S.W.2d 871, 87 3 (Tenn. 1978). -3- MR. JOHNSON: No, Your Honor, we havehadan opportunity to count them and we countedthem aga

in this mor

ning to ma

ke sure th at we had t

hem all co

vered. We

do not take issue with that, Your Honor. 1 COURT: So there’s no question, then, that on his four C felonies he will receive15 yearsat 60 perce nt; his six D

felonies, 12 years at 60 percent in each one; and his ten E felonies, six years at 60 percent; and on the A misdemeanor, 11 m ont hs, 29 d ays is going to be the sentence on that based on his prior record. So t he only question remaining is whether they are to be served concurrently or c onsecutively

or some combination thereof. At the conclusion of the hearing, the trial court found the Appellant to be a career offender for all class C, D, and E felony convictions. The record confirms the trial court’s findi ng that the Appellant is a car

eer offender w

ith respect to the c

lass D and E feloni

es. With respect to cla

ss C felonies, a defendant may be sentenced as a “career offender,”if he has “[a]ny combination of six (6) or more class A, B, or C prior felony convictions.” Tenn. Code Ann. § 40-35-108(a)(1). Our review of the record indicatesthat the Appellant has only three prior class C felony convictions. See Appendix B. Because the Appellant was found to be a career offender for all class C felony convictions, no sentencing hearing was conducted

as the maximum senten ce for the o ffense was the only sentence available. Accor dingly, on remand, a sentencing hearing will be necessary to determine the Appellant’s appropriate sentence as a range I II, persistent offender, with r

espect to the cla

ss C felonies. At the conclusion of the senten cing heari ng, the trial court initially imposed an effective sentenceof “171 yea

rs and 11 months and

29 days.” Th

is s entence was lat

e r modified to “an effectivesentence of 168 years, 11 months and 29 days, based upon the State’s recalculat[ion]” of the sentences. On appeal, the Appellant asserts that he was sentenced to “168 years 11 months 29 days consecutive to 21 years for a total of 189 y ears and 29 days. The

State, on appeal,

contends that the trial court sentenced

the Appellant “to serve an effective sentence of 162 years 11 months and 29 days.” Our calculation from the record before us suggests the Appellant received an e ffective sentence of 141 years 11 months 29 days. See Appendix A. To further compound the confusion, the Stateannounced at the sentencing hearing that the Appellant was entering 21 g uilty pleas, i.e. , ten E felonies, six D fel

onies, four C felo

nies and one A misde

meanor. On appe

al, the State asse

rts that the Appellant “pled guilty to at least 19 offenses.” The State acknowledg ed, however:-4-

There are only 19 judgment forms in the technical record. (I, 1-47; 122-140). Based so lely on those judgment forms, the State calculates that Anderson’s effec tiv e sentenceis properly calculated at 141 ye ars, 11 months, 29 da ys, taking into considerationthe concurrent and consecutive sentences on such judgment forms . If case numbers 97-09658 & 59 are two cases Anderson was previously trie d andfound guilty on, as indicated in page 8 of the sentencing hearing transcript, obviously they will not affect this sentence. However, if those case numbers are a part of this plea, as indicated on pp.2 a

nd 3 of the sentenc

ing hearing tr

anscript, and th

e jud gment forms were left out of the record, they could chang e the above calculation. CONCLUSION For the foregoing reasons, we find that the Appellant’s classification as a caree r offender for his class C felony con

victions was erro

r. Furthermore

, we are unable t

o determine from the record the number of convictions entered in this case or the eff

ective sentence

arising from the

convictions. Acco rdi ngly, we remand for clarification or correction of the respective sentences imposed and for resentencing

with respect to the

Appellant’s clas s C felony co nvictions.

___________________________________ DAVID G. HAYES, JUDGE-5- APPENDIX A Current Offenses as Sentenced by the Trial Court (As grouped by the prosecutor at the sentencing hearing) Group 1
Case # Date Offense Class Sentence Manner 97-01093 7-2-00 Theft D 12 years Consecutive 97-01094 7-2-00 Theft D 12 years Consecutive 97-01095 7-2-00 Forgery E 6 years Consecutive 97-01096 7-2-00 Forgery D 12 years Consecutive 97-01097 7-2-00 Forgery D 12 years Consecutive
Group 2
97-06852 7-2-00 Forgery E 6 years Concurrent 97-06853 97-06853 7-2-00 Forgery E 6 years Concurrent 97-06852 97-06854 7-2-00 Forgery E 6 years Consecutive 97-06855 7-2-00 Forgery D 12 years Consecutive 97-06856 7-2-00 Forgery E 6 years Consecutive 97-06857 7-2-00 Theft E 6 years Consecutive

Group 3
97-08272 7-2-00 Forgery E 6 years Consecutive 97-08273 7-2-00 Forgery D 12 years Consecutive-6-

Group 4
97-09654 7-2-00 Theft C 15 years Concurrent 97-09655 97-09655 7-2-00 Forgery C 15 years Concurrent 97-09654 97-09656 7-2-00 Forgery E 6 years Consecutive 97-09657 7-2-00 Forgery E 6 years Consecutive 97-09660 7-2-00 Forgery E 6 years Consecutive
Group 5
97-09924 7-2-00 Possession Weapon A

misdemeanor 11 months 29

days Consecutive

Prior convictions stemmin

g from jury

tr ial bu t occurring with

in the same time-f

rame as Groups 1 through 5
97-08497 12-3-99 Forgery E 6 years Consecutive 97-08498 12-3-99 Theft C 15 years Consecutive-7- APPENDIX B Prior Criminal History Case # Offense Class 93-01620 Motor Vehicle - Habitual E 92-11377 Theft over $1,000 D Illegible Case Number Forg ery E
*** Forgery E 92-11375 Forgery over $500 E 92-11374 Forgery over $500 E 92-11373 Forgery over $500 E 92-02804 Theft over $10,000 C 92-02803 Theft over $1,000 D 90-12843 Theft over $10,000 C 93-00146 Theft over $1,000 D 90-13173 Theft over $1,000 D 90-16350 Forgery over $500 E 90-16351 Forgery over $500 E 90-16352 Forgery over $500 E 90-16353 Forgery E *** 92-02802 Indictment charges theft over $10,000 C Indiana Charge Forgery

*** We did not consider these indictments, as no judgment sheets were found in the record to reflect whether a conviction was entered.