FILED

May 19, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JANUARY, 1997 SESSION

STATE OF TENNESSEE, ) No. 03C01-9604-CC-00146

)

Appellee, ) Jefferson County

)

vs. ) Hon. William R. Holt, Judge 

)

RICHARD DOUGLAS LOWERY, ) (Aggravated Assault; forgery)

)

Appellant. )

)

FOR THE APPELLANT: FOR THE APPELLEE:

EDWARD C. MILLER CHARLES W. BURSON

Public Defender Attorney General & Reporter

Fourth Judicial District

P.O. Box 416 CLINT T. MORGAN

Dandridge, TN 37725 Counsel for the State

450 James Robertson Parkway

Nashville, TN 37243-0493

AL C. SCHMUTZER, JR. 

District Attorney General

JAMES L. GASS 

Assistant District Attorney General

Fourth Judicial District

301 East Courthouse

125 Court Avenue

Sevierville, TN 37862

OPINION FILED: ____________________

AFFIRMED

CURWOOD WITT, JUDGE 
2

OPINION

The appellant, Richard Douglas Lowery, appeals from the sentence

imposed by the Jefferson County Circuit Court. A jury convicted him of forgery,

aggravated assault, and two related misdemeanors. The trial court determined the

appellant to be a Range III persistent offender and imposed sentences of four years

for forgery and two sentences of eleven months and twenty-nine days each for the

misdemeanors, set to run concurrently with a ten year sentence for the aggravated

assault. In this appeal he complains the trial court erred in the following ways:

 (1) failing to require the filing of a presentence report;

 

 (2) sentencing the appellant as a Range III persistent 

 offender;

 

 (3) failing to place of record the required findings of fact;

 and

 

 (4) failing to give due consideration to the relevant factors

 of sentencing.

After review of the record, we affirm the judgment of the trial court.

The appellant raises no challenge to his convictions. On the morning

of trial but before it began, the state filed a “Notice of Intent to Seek Enhanced

Punishment” in order to have the appellant declared a persistent offender. Five

previous felony convictions were cited as the qualifying convictions for Range III.

All of the convictions had been rendered in the Jefferson County Circuit Court, the

trial court below. The listing of the convictions on the Notice contained the dates

of conviction, revealing that three of the convictions occurred on the same date,

February 8, 1989. The other two convictions occurred, respectively, in 1990 and 
1 The trial court’s denial of a mental examination is not challenged on appeal.

3

1994. After the trial court received the jury’s verdicts and discharged the jury, the

trial judge and counsel discussed on the record the planning of the sentencing

hearing. The appellant’s attorney asked for a presentence mental evaluation, but

the trial judge initially understood him to request a “More Specific Data Report.”

Once the trial court understood that the appellant was seeking a mental evaluation,

the court denied the request.1 The court indicated the appellant could ask the

probation officer to address the issue in the presentence report, and the appellant

could also submit additional information for the report. Defense counsel asked the

court to expedite the sentencing hearing because the appellant preferred to be

transferred to a state facility as soon as possible. The hearing was held forty-four

days later. At the beginning of the sentencing hearing, the court asked counsel if

they had “the reports”. The following exchange occurred:

General Gass: Do you [have the presentence report]?

Mr. Miller: I don’t think so.

General Gass: You waive presentence report?

The court: You waive the specific ...?

Mr. Miller: Well, Your Honor, we will. We’re ready to go

forward with sentencing. He--he’s ready to get

his time and go--go on. But we did contact the

probation officer right after the conviction and

discuss the preparation of this. That’s required.

But we’re not going to demand that that be done

before he’s sentenced, because he’s ready to

get his time and--and go on. 

The court: So, in essence, you’re waiving it?
4

Mr. Milller: I guess you could say that, Your Honor.

The court: Can’t guess about it. We do or don’t.

Mr. Miller: We do, Your Honor.

The court: You do have your data report, right? The twopage report? Do you?

Mr. Miller: . . . That’s fine, Your Honor. I do. I’ve got it

here, Your Honor. Yes.

The state offered no additional proof, although a “Criminal History

Report” dated October 20, 1995 appears in the technical record. Although this

Criminal History Report, along with the Notice, was one of the documents certified

by the trial court clerk as part of the “full and complete copy of the pleadings and

records” on file in the case, the Report did not bear a filing date nor did it bear any

identification from the trial judge certifying it as an exhibit. This Report contained

essentially the same information contained in the Notice, except the Report

disclosed that the three convictions that occurred on February 8, 1989 were

convictions obtained upon multiple counts contained in the same indictment.

The defense then challenged the Range III determination, arguingthat

two of the three February 8, 1989 convictions were disqualified by the twenty-fourhour rule set forth in Tennessee Code Annotated § 40-35-107(b)(4) (1990). In

response, the District Attorney General retrieved the court’s original 1989 file from

the clerk’s office. The record reflects the file was handed to the trial judge, who

commented upon certain contents of the file, specifically that the February 1989

convictions arose from events that occurred on September 23 and October 10 and

16, 1988, such that the twenty-four-hour rule could not come into play. The court

read these dates into the record. While the source of this information within the 
5

1989 court file is not totally clear, it appears the information as to the occurrence

dates came from the allegations set forth in the underlying warrants, including the

supporting affidavits. Neither the record of the 1989 proceedings nor a certified

copy of any of its contents was authenticated by the trial judge as an exhibit, and

neither appears in the record of the evidence, except for the trial judge’s reading

from the 1989 file as transcribed by the court reporter. There were no objections

to this procedure. After examining the 1989 file, the trial court declared the

appellant qualified as a persistent offender, the five qualifying felony convictions

being present. After hearing arguments as to the propriety of both enhancement

and mitigating factors, the trial court recited its recollection of the proof at trial and

noted the persuasive mitigation arguments of diminished judgment and mental

condition due to chemical addiction. Then he sentenced the appellant to the

minimum sentences in the applicable range to run concurrently. 

When there is a challenge to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review on the record

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. §40-35-401(d) (1990). This presumption 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). “The burden of showing that the sentence is improper is

upon the appellant.” Id. In the event the record fails to demonstrate the required

consideration by the trial court, review of the sentence is purely de novo. Id. If

appellate review reflects the trial court properly considered all relevant factors and

its findings of fact are adequately supported by the record, this court must affirm the

sentence, “even if we would have preferred a different result.” State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).
6

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

conclusion of the sentencing hearing, determines the range of sentence and then

determines the specific sentence and the propriety 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 statement the defendant wishes to make in the

defendant’s behalf about sentencing; and (7) the potential for rehabilitation or

treatment. Tenn. Code Ann. §§ 40-35-210(a), (b) and 40-35-103(5) (1990); State

v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

I. Absence of Presentence Report.

The appellant is correct in pointing out that Tennessee sentencing law

mandates that a presentence investigation and report be made in all felony cases.

Tennessee Code Annotated Section 40-35-205(a) provides:

Upon acceptance of a guilty plea or upon a verdict or finding of guilty,

the court shall, in the case of a felony, and may, in the case of a

misdemeanor, direct the presentence service officer to make a

presentence investigation and report, except as provided in §40-35-

203 and subsection (b). The presentence service officer shall

conduct the investigation necessary to prepare a presentence report,

meeting the requirements of §40-35-207 and any other investigation

he deems appropriate or the court directs and shall independently

determine the factual basis for any enhancement or mitigating factors

asserted by the parties. Tenn. Code Ann. § 40-35-205(a) (1990)

(emphasis added).

Moreover, Section 40-35-210 provides:

(b) To determine the specific sentence and the appropriate

combination of sentencing alternatives that shall be imposed on the

defendant, the court shall consider the following:

. . .

(2) the presentence report[.]
7

. . . 

(g) A sentence must be based on evidence in the record of the trial,

the sentencing hearing, the presentence report, and, the record of

prior felony convictions filed by the district attorney general with the

court as required by §40-35-202(a). Tenn. Code Ann. §40-35-

210(b)(2), (g) (Supp. 1996) (emphasis added).

The use of the words “shall” and “must” have not gone unnoticed by this court. We

have previously held the preparation and filing of a presentence report is mandatory

in a felony case in which the parties have not fully agreed to the sentence to be

imposed. State v. Ronnie C. Allen, No. 03C01-9409-CR-00347, 1995 WL 102741

(Tenn. Crim. App., Knoxville, March 10, 1995); State v. Patricia Walton, No. 03C01-

9205-CR-156, 1992 WL 371778 (Tenn. Crim. App., Knoxville, December 17, 1992).

In none of these cases, however, was this court presented with an affirmative

waiver of the report. 

In the case now before us, the presentence report was apparently

ordered, but by stipulation of both parties and with the approval of the trial court, the

parties proceeded through the sentencing hearing without the presentence report.

No objection was made to this procedure, but the record is not merely silent as to

the waiver. It evinces an affirmative waiver. Indeed, with respect to the defense,

the side now claiming to be aggrieved by the absence of the report, the waiver was

pressed to the point of estoppel. At the hearing, the appellant urged the court to

proceed and to make its decision without benefit of the otherwise-mandated report.

The appellant is now asking this court to violate Rule 36(a) of the Tennessee Rules

of Appellate Procedure by taking action in this appeal “in contravention of the

province of the trier of fact.” Tenn. R. App. P. 36(a). This rule further provides that

nothing contained therein “shall be construed as requiring that relief be granted to

a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error.” Id. 
8

Additionally, we note in passing that the appellant made no showing of any

favorable information that a presentence report might have contained, and

consequently there was no claim of prejudice. Tenn. R. App. P. 32(b); Tenn. R.

Crim. P. 52(a).

We do not encourage trial counsel and trial courts to embark upon

sentencing hearings in the absence of presentence reports. We view the

legislature’s mandate as expressed in Tennessee Code Annotated §§ 40-35-205(a)

and 210 (b), (g) to be well reasoned. Certainly the use of the presentence report

better enables the trial court to carry out the purposes of the sentencing law, and

moreover, the presence of the report in the record is necessary for de novo

appellate review. See State v. Charles Eberhardt, No. 03C01-9307-CR-00230, slip

op. At 5, 1994 WL 46511 at *3 (Tenn. Crim. App., Knoxville, February 17, 1994);

State v. James Patrick Hill, Jr., No. 954, slip op. At 2, 1991 WL 134500 at *1 (Tenn.

Crim. App., Knoxville, July 23,1991). However, on the unique facts of the case

before us, we hold that the prehearing filing and the use of the presentence report

were waived.

II. Range-of-Sentence Issues.

a. Timeliness of filing notice.

The first issue relative to the appellant’s complaint about the

sentencing range is the untimely filing of the enhancement notice. Tennessee Code

Annotated Section 40-35-202(a) provides for the filing of a notice of intent to seek

enhanced punishment and requires that such a notice be filed by the district

attorney general “not less than ten (10) days before trial or acceptance of a guilty
9

plea.” The Notice in this case was filed with the court and served upon defense

counsel on the morning of trial. In State v. Stephenson, 752 S.W.2d 80 (Tenn.

1988), a notice had also been filed on the day of trial, and the Court held the notice

was effective “in the absence of some showing of prejudice on the part of the

accused, particularly where defense counsel does not move for a continuance or

postponement of the trial as he is clearly authorized to do.” Id. at 81. The court

concluded that where there was no defense motion for continuance, any objection

to the untimely filing was waived. Id. A similar result was reached in State v.

Adams, 788 S.W.2d 557, 559 (Tenn. 1990), on the issue of sufficiency of the notice.

See also State v. Gilmore, 823 S.W.2d 566 (Tenn. Crim. App. 1991). No motion for

continuance was filed in the case now before us, nor has any prejudice been shown

by reason of the late filing of the Notice, and therefore we conclude the objection

is waived.

b. Evidence supporting range determination. 

Imposition of an enhanced sentencing range must be predicated upon

a finding by the trial court beyond a reasonable doubt that the requisite prior felonies

exist. Tenn. Code Ann. §§ 40-35-106(c), 107(c), and 108(c) (1990). The appellant

argues the record is devoid of any evidence supporting the decision to enhance the

range from I to III. All five prior convictions were mentioned in the Notice, but the

extent of the proof of the five qualifying convictions is found only in the “Criminal

History Report” and the transcribed comments of the trial judge made at the

sentencing hearing as he read from the original court file. 

First we must determine if the “Criminal History Report” is “in

evidence.” Inclusion of a document in the “technical record” will not, “as a matter
10

of law,” permit this court to consider the document when it has not been introduced

as evidence or authenticated by the trial court. State v. Cooper, 736 S.W.2d 125,

131 (Tenn. Crim. App. 1987). In Cooper, the court noted: 

Before an exhibit may be considered by this court, it must have been

(a) received into evidence, (b) marked by the trial judge, clerk or court

reporter as having been received into evidence as an exhibit, ©

authenticated by the trial judge, and (d) included in the transcript of

the evidence transmitted to this court. Id. 131.

Under this rule the Criminal History Report found in the technical

record as certified by the clerk is not properly before the court. As a result, the

listing found in this report is not to be considered evidentially.

Before considering the trial court’s review of the original 1989

conviction file, we observe that the 1990 and 1994 convictions were mentioned in

the Notice and were never challenged in any way by the appellant. The appellant

has conceded tacitly that these two convictions qualify. This concession, or waiver,

is really part and parcel of the waiver of the filing of the presentence report (dealt

with above in Section I), where the appellant made no effort to put the state to its

burden of proof as to these two convictions and where the accuracy of the

description of these two convictions was not challenged. We have previously held

that when allegations of qualifying convictions are set forth only in the notice of

intent to enhance, the state’s burden to establish the range enhancement is not

met. State v. Jones, 901 S.W.2d 393, 397 (Tenn. Crim. App. 1995); State v.

Charles Eberhardt, No. 03C01-9307-CR-00230, slip op. at 2-4 (Tenn. Crim. App.,

Knoxville, February 17, 1994). However, in these cases the defendant either “put

the state to its burden of proof” or otherwise challenged the accuracy of the

conviction information. Where summary information about the qualifying convictions

was contained in the presentence report but was not otherwise proven by certified
11

copies of conviction records or otherwise, we have held that the state has proven

range enhancement beyond a reasonable doubt, “‘absent a showing that the report

is based on unreliable sources or is otherwise inaccurate.’” State v. Anthony D.

Hines, No. 01C01-9406-CC-00189, slip op. at 5-6 (Tenn. Crim. App., Nashville, May

25, 1995), perm. app. denied (Tenn. Nov. 6, 1995). See also State v. Richard J.

Crossman, No. 01C01-9311-CR-00394 (Tenn. Crim. App., Nashville, October 6,

1994), perm. app. denied (Tenn. January 3, 1995) (where the sentencing issue was

not the range and the state’s burden was only preponderance of the evidence,

summary listings of convictions were sufficient in the absence of a challenge to the

accuracy of the information). Where the presentence report has been effectively

waived, as in the case now before us, and where the appellant has also not

challenged the reliability or accuracy of the description of the 1990 and 1994

convictions “pleaded” in the Notice, he should not be heard now to claim that these

two convictions were not proven. Tenn. R. App. P. 36(a). The trial court was

justified in considering these convictions in support of the enhancement of the range

of sentence.

We now turn to the trial court’s treatment of the original 1989

conviction record. The cases cited above dealt with a record that was devoid of

proof of qualifying convictions except for summary listings or computer print-outs

contained in the enhancement notice and/or presentence report. In none of the

cases mentioned did the prosecution attempt to utilize an original record of a

qualifying conviction as did the prosecution in the case before us. Tennessee Code

Annotated Section 40-35-202(a) provides that the “original or certified copy” of the

prior conviction record, bearing the name of the accused, is “prima facie evidence

of the facts set out therein.” There is no physical or documentary exhibit of this 
12

“original” evidence, and no witness testified as to the facts. However, there is a

representation of the pertinent facts in the transcript of the trial judge’s recitation of

the dates of the offenses that resulted in the 1989 convictions, and the trial judge

approved and authenticated the transcript. 

This material is evidence and is in evidence. There is no need to

adduce evidence through a testifying witness when the evidence is judicially

noticeable under Rule 201, Tennessee Rules of Evidence. The trial court’s review

and commentary on its own 1989 file was an act of judicial notice. It is authorized

by Rule 201(b)(2), the facts being “capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned.” Id. The trial

court may take judicial notice “whether requested or not,” Tenn. R. Evid. 201(c), and

the notice may be taken at any stage of the proceeding. Id. at 201(f). An

opportunity to be heard on the propriety of taking the notice is afforded upon

request, but in the case below no request was made.

We hold the facts are judicially noticeable under the rule. While it has

been opined that the trial court in reviewing its prior proceedings may not take

judicial notice of a prior party being identical to a party sub judice, 2 Charles E.

Torcia, Wharton’s Criminal Evidence § 232 (14th ed. Supp. 1996), Tennessee Code

Annotated Section 40-35-202(a) resolves the question by providing that the original

or certified copy of the conviction record, “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.” Moreover,

questions concerning the nature of other facts noticed below are resolved by this

same Code section because the conviction record as offered below is also “prima
2

A person convicted of a crime is entitled to protection that he may not be

put into jeopardy again for the same offense. State v. Trusty, 919 S.W.2d 305,

309 (Tenn. 1996); State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991). A

reviewing court must necessarily have the power to take cognizance of the date

of the offense.

13

facie evidence of the facts set out therein.” Id. This rule governs the noticing of

facts gleaned from an arrest warrant affidavit contained within the file because (1)

the judicial notice taken did not exceed the scope of examination of the file that

would have been available to a testifying court clerk, and (2) the type of fact

extracted, being a date of an offense which resulted in a conviction, is by its nature

judicially noticeable.2 See State v. Woodall, 729 S.W.2d 91, 94 (Tenn. 1987) (an

arrest warrant contained in a court record is an official judicial record of proceedings

in that case).

Based upon the foregoing, we hold that the judicial notice of the

original 1989 conviction file provided sufficient evidence of the three 1989

convictions. The trial court was justified, therefore, in considering a total of five

qualifying convictions in enhancing the sentencing range. It follows that the trial

court’s determination that the appellant should be sentenced as a persistent

offender is supported in the record and should be affirmed.

III. Sentencing Considerations; Findings of Record.

As to the length of sentence, it is immaterial whether the trial court

considered all relevant factors and made requisite findings in the record (or whether

our de novo review is not accompanied with a presumption of correctness of the

trial court’s determination). The appellant cannot -- and does not -- claim to be

prejudiced in any way with the selection of minimum sentences within the applicable
14

range, established to run concurrently. Any possible error committed by the trial

judge with respect to his selection of a specific sentence is harmless. Tenn. R. App.

P. 36(b); Tenn. R. Crim. App. 52(a).

IV. Conclusion.

The conclusion is the judgment of the trial court is affirmed.

_______________________

 Curwood Witt, Judge

CONCUR:

________________________

Gary R. Wade, Judge

________________________

Joseph M. Tipton, Judge