# FILED
May 19, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUARY, 1997 SESSION

STATE OF TENN ESSEE , ) No. 03C01-9604-CC-00146 ) Appellee , ) Jefferson County

) vs . ) Hon. William R. Holt, Judge ) RICHARD DOUGLAS LOWERY , ) (Aggravate d Assault ; forgery) ) Appellant

. ) )

FOR THE APPE LLANT: FOR THE APPELLEE: EDWARD C. MILLER CHARLES W. BURSON Public Defender Attorney General & Repor ter Fourth Judicial District P.O. Box 416 CLINT T. MORGAN Dandridge, TN 37725 Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 AL C. SCHMUTZER, JR. District Attorney General JAMES L. GASS Assistant District A

ttorney General Fourth Judicial District 301 East Courthouse 125 Court Avenue Sevierville, TN 3

7862

OPINION FILED: ____________________
AFFIRMED CURWOOD WITT, JUDGE2 OPINION The appellant, Richard Dougl as Lowery, appeals from the sentence imposed by the Jefferson County Ci rcuit C ourt. A jury convict ed him of forgery, aggravatedassault, and two related misdemeanors. The tria l court determined the appellantto be a Range III persistent offender and imposed sen tences of four years forforgery an d two sente nces of e leven mon ths and t wenty-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 req uire the filing of a presentenc e report; (2) sentencing the appel lant as a Range III persi stent offender; (3) failing to place of record the required findings of fact; and (4) failing to give due consideration to the relevant factors of sentencin g. After review of the recor d, we affirm the judgment of the tri al court.

The appellant

raises no challen ge to his convictions. On the morning of trial but before it began, the state filed a “Notice of Intent to Seek Enhanced Punish ment ” in order to have the a ppellan t declare d a persis tent of fender . Five previousfelony convictions were cited as the qualifying convictions for Ra nge III. All of the convictions had been rendered in the Jefferson County Circuit Court, the trial court below. The listing of the convic tions on the Notice contained the dates of conviction, reveal ing that three of the convi ctions occurred on the same dat e, February 8, 1989. The other t wo convictions occurred, respectively, in 1990 and1 The trial court’ s denial of a menta l examination is not ch

allenged on app

eal. 3 1994. After the trial court r eceived the jury’s

verdicts and discharged the jury , the trial judge and counsel discusse d on the record the planning of the sentencing hearing. Theappellant’s attorney ask ed for a presentence mental evalu ation, but the trial jud ge initia lly understood him to req uest a “More Specific Data Report.” Once the trial court understood that the appellant was seek ing a mental evaluation, the court denied th e requ est. 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 informati on for the report. Defense counsel asked the court to expedite the sentencing hearing because the ap pella nt preferred to be transferred to a state facility as s oon as possible. Thehearing was held forty -four days later. At the beginning of the sentencing hearing, the court asked counsel if they had “the reports”. The following exchang e occurred:

General Gass: Do you [have the presente nce report]? Mr. Miller: I don’t think so. General Gass: You waive presentenc e report? The court: You waive the speci fic ...? Mr. Miller: Well, Yo ur Honor, we wi ll. We’re ready to g o forward with sentencing. He--he’s r e ady to get his time and go--go on. But we did contact the prob ation officer right after the conv iction an d discuss the preparation of this. That’s r equired. But we’re not going

to demand thatthat be done before he’s sentenced, because he’s r eady to get his time and--and go on. The court: So, in essence, you’re w aiving 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 repor t, right ? The twopage report? Do you? Mr. Miller:

. . . That’s fine, Your Honor.I do. I’ve got i t

here, Your Honor. Yes.

The state offered no additional proof, although a “Criminal History Report” dated October 20, 1995 appears in the techn ical rec ord. Although this Criminal History Report, al ong with the Notice, was one of the documents certified bythe trial court clerkas part of the “full and complete co py of the pleadings and records” on file in the case, the Report did not bea r a filing date nor did it bear any identification from the trial judge certifying it as a n exhibit. This Report contained essentiallyt he 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 determinat io n, arguing tha t two of the three February 8, 1989 co nvictions were di squalified by thetwenty-fourhour rule set for

th 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 reco rd refl ects the file was handed to the trial judge, who commented upon certain contents of the file , specif ically that the Februar y 1989 convictions

arose from events that occur red on September

23 and October 10 and 16, 1988, such that the twenty -four-hour

rule could not comeinto play. The court read these dates into the recor d. While the source of this information within the5

1989 court file is not totally clear, it appears the information as to the oc currence dates came from the allegations set for th in the underlying

warrants, including

the supporting affidavits. Neith er t he record of the 1989 proceedings nor a certified copy of any of its contents was authenticated by the trial ju dge as a n exhibit, and neither appears in the record of the ev ide nce, e xcept for the trial judge’s reading from the 1989 file as transcribed by the court reporter. There were n o objections to this procedure. Af ter examining the 1989 file,the trial court declar ed the appellantqualified as a persistent offender, the five q ualifying felony conv ictions bein g present. After hearing ar guments 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 mitig ation arguments of diminished j udgment and men tal condition d ue to chemical addiction. Then he s entenced the appellant to the minimum sentences in the applicabl e range to run concurrentl y.

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 determ inations made by the trial court are correct. Tenn. Code Ann. §40-35-401(d)(1990). This presumption is “conditioned upon the affirm ative s howing in the record that the trial court considered the sentenci ng pr in ciples and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of show ing that thesentence is improper is upon the appellant.” Id . In the event the record fai ls to demonstrate the requi red consideration by the trial court , review of th e senten ce is pure ly 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 aff irm the sentence, “even if we would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (T enn. Crim. App. 1991).6 In making its sentencing determination, the trial c o urt, at the conclusion of the sentencing hearing, determ ines the range of sentence and then determines th e spec ific sentence and the propriety of sentencing alternativ es by considering (1) the evid ence, if any, received at the trial and the sentencin g hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives ; (4) th e nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on the enhancement and mitigating factors; ( 6) an y s tatement the defendant wishes to make i n the defendant’s behalf about sentenci ng; and (7) the potential for rehabi litation 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 (T enn. Crim. App. 1993).

I. Absence of Presentence Report.

The appellant is correct i n 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 pl ea or upon averdict or finding of guilty, t he court shall , in the case of a felony, and may , in the case of a misdemeanor, direct the presentence ser vice officer to make a presentence investigation and report, except as provided in §40-35- 203 and subsection (b). The pres entenc e serv ice officer shall conduct the investigation nec essary to prepare a presentence report, meeting the requirements of §40-35-207 and any other investigation he deems appropriate or the court directs and s hall independently determine the factual basis for any enhancement or mitigating factors asserted by the parties. Tenn. Code A nn. § 40-35-205(a) (1990) (emphasis added). Moreover, Section 40-35-210 provides:

(b) T o dete rmine the specific sentence and th e appropriate combination of

sentencing alternativ

es that shall be imposed on the defendant, the court shall consider the f ollowing:

. . . (2) the presentence report [.]7 . . . (g) Asentence must be based on evidence in the record of the trial, the sentencing hearing, the presentence report , and, t he record of prior felony convictions filed by the dist rict attorney general w ith the court as requ ired 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 co ur t. We have previ ously h eld the p reparation and fi ling of a presentence report is mandatory in a felony case in whic h the parties ha ve not fully agr eed to th e sentence to be imposed. State v. Ronnie C. Allen , No. 03C01-9409-CR-00347, 1995 WL 102741 (Tenn. Crim. App., Knoxvil le, March 10, 1995); State v. Patricia Walton , No. 03C01- 9205-CR-156, 1992 WL 371778 (Tenn. Crim. App., Knoxv ille, December

17, 1992). In none of these cases, however, was this court pres ented with an affirm ative waiver of the report.

In the case n ow before us, the presentence report was apparently ordered, but by

stipulation of both parties and with the appr oval of the trial court, the parties proceeded through the sentenci ng hearing without the presentence report. No objection was made to thi s procedure, but the record is not merely silent as to the waiver. It ev

inces an affirmative waiv er. Indeed, with respec t to the defense, the side now claiming t

o be aggrieved by the absence of the report, the wai ver was pressed to the point of estoppel. At the hear ing, the ap pellant ur ged the court to proceed and to make its decisionwithout 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 ta kin g action in this appeal “in contravention of the province of the trier of fact.” Tenn. R. App. P. 36(a). This rul e further provides that nothing contained therein “shall be construed as requiring that rel ief be granted to
a party responsible for an error or who failed to t ake wha tev er action was reasonably available to prevent or nullify the harmful effect of an error.” Id

.8

Addition ally, we note in passing that the appel lant made no showing of any favorable info rmation that a presentence report mig ht have contained, and consequently there was no claim of prej udice. Tenn. R. App. P. 32(b); Tenn. R. Crim. P. 52(a).

We do not encourage trial co unse l and trial courts to embar k upon sentencing hearings in th e 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 carr y out the purposes of the sentenci ng law, and
mo reover, the presence of the report in the record is necessary for de nov o appellate review. See State v. Charles Eberhar dt , No. 03C01-9307-CR-00230, slip op. At 5, 199 4 WL 4 6511 at * 3 (Tenn. Crim. App ., Knoxvi lle, F ebruary 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). Ho wever , 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-Sente nce Issues.

a. Timeliness of filing notice .

The first issue relativ e to the appell ant’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 see k enhanced punishment and requires that such a notice be filed by the distr ict attorney general “not less than t en (10) days before trial or acceptance of a g uilty9

plea.” The Notice in this case w as filed with the court and se rved upon defense
couns el 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 Cou rt held the notice
was effectiv

e “in th e absenc

e of s ome showing of prejudice on the part of the accused, particularly w here defense counsel does not move for a continuance or postponementof the trial as he is clearly authorized to do.” Id. at 81. The c ourt concluded that where there was no de fense motion for continuance, any objection to the untim ely filing was w aived. Id . A similar result w as reached in Stat e v . Adams , 788 S.W.2d 557, 559 (Te nn. 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 beenshown by reason of the late filing of the Notice, and therefore we concl ude the o bjectio n is waived.

b. Evidence supporting r ange determination

.
Impo sition of an enhanced sentencing range must be predicated upo n a finding by the trial c

ourt beyond a reasonable doubt that the requisite prior felonies exist. Tenn. Code Ann. §§ 40-35-106(c), 107(c),and 108(c) (1990). The appell ant argues the record is devoid of any evidence supporting th e decision toenhance the rang e from I to III. All five pri or convictions we re mentioned in the Notice, but th e extentof the proof of the five qualifying convictions is found only in the “Criminal HistoryReport” and the transcri bed comments of the t rial judge made at the sentencing hearing as he read from the original cour t file.

First we mu st determine if the “Criminal History Report” is “in evidence.”Inclus ion of a do cument in the “technical rec ord” will not, “as

a matter10

of law,” permit this c

ourt to consider the document w hen 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 c ourt, it must have been (a) received into evidence, (b) marked by the trial judge, clerkor court re porter as having been receiv ed into evidence as an ex hibi t, © aut henticated by the trial judge, and (d) included in the transcr ipt o f the evidence transmitted to this court. Id . 131. Under thi s rule th e Criminal History Report found in the technical record as certif ied by the cl erk is not properly before the court. As a result,the listing fo und in th is report i s not to be consider ed eviden tially.

Before considering the trial court’s revie w of the original 1989 conviction file, we observe that the 1990 and 1994 convictions were mentioned in the Notice and were neve r challenged in any way by the appellant. The appellant has conceded tacitly that thes e two convictions q ualify. 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), w here the ap pel lant made no effort to put the state to its burden of proof as to these two convi ctions and where th e acc uracy of the description of these two convicti ons was not challenged. We have previously held that when allegations of qualifying convictions are set f orth only in the notice o f intentto enhance, the state’ s burde n to establish the range enhanc ement is not met. State v. Jones , 901 S.W.2d 393, 39 7 (Tenn. Crim. App. 1995); State v

. CharlesEberhardt , No. 03C01-9307-CR-00230, s lip op. at 2-4 (Tenn. Crim. App., Knoxville, Februar

y 17, 1994). However, in these cases the defendant either “put the state to its burden of proof” or otherw ise challenged the accura cy of the conviction information. Wher e summary informatio n about the qualifying c onvictions
was contained in the presentence report but was not other wise provenby certified11

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 u nreliable sources or is otherwise inaccurate.’” State v. Anthony D. Hines , No. 01C01-9406-CC-00189, sli p op. at 5-6 (Tenn. Crim. App., Nas hville, May 2 5, 1995), perm. app. denied (Tenn. Nov. 6, 1995). See also State v. Ric hard J

. Crossman , No. 01C0 1-9311-CR-00394 (Tenn. Cri m. App., Nashville, Oct ober 6, 1994), perm. app. denied (Tenn. January 3, 1995) (where the sentencing issue was not the ra nge and the state’s burden w as only preponderance of the ev idence, summary listings of convictions were sufficient in the absence of a challenge to the accuracyof the informa ti on ). Wh ere the presentence report has been eff ectively waived, as in the case now before us,and where the a ppell ant has also not challenged the rel iability or a ccurac y of t he desc ription 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. T enn . R. App. P. 36(a). The tri al court was justified in considering these convictions in support of the enhan cement of th e range of sentence.

We now turn to the tria l court’s treatment of the ori ginal 1989 conviction record. The cases cited abov e dealt with a record that was devoid of proof of qualifying convic ti ons except for summary li stings or computer pri nt-outs contained in the enhancement n otice and/o r presentence report. In none of the
cases mentioned did the pr o secutio n attempt

to util ize an o rigin al reco rd of a qualifyingconviction as did the prosecution in the case before us. Tennessee Code Annotated Section 40-35-202(a) prov ides that the “original

or certified copy” of the prior conviction record, be

aring the name of the accused, is “prima facie evidence of the facts set out therein.” There is no physical or documen tary exhibit of this12

“original” evidence, and no witness testified a s 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 convict ions, and the tr ial judge approved and authenticated the tr anscript.

This mater ial is evidence and is in evidence. There is no need t o adduce evidence through a test ifying witness when the evidence is judicially noticeable under Rule 201, Tennessee Rules of Evidence. Thetrial court’s review and commentary on its own 1989 file was an act of judicial notice. It is authorized byRule 201(b)(2), the facts being “capable of accurate and r eady determination by resort to sources whose accur acy cannot

reasonably be questioned.” Id . The trial court may

take judicial notice “

whether requested or no t,” Tenn. R. Evid. 201(c), and the notice may be taken at any stage o f the proceeding. Id . at 201(f). An opportunity

to be heard on the propriety of taking the not ice is a ffo rded upon request, but in the case bel ow no request was made.

We hold the facts are judicially noticeab le under the rule. While it has be en opined that the trial court in reviewing its prior proceedings m ay not tak e judicial notice of a prior par ty being ide ntical 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) reso lves thequestion by provi ding that theoriginal
or certified copy of the conv iction record, “bearin g the same name as that by which the defen dant is charged in the primar y offense, is prima facie evi dence that the defendant named therei n is the same as the defendant before thecourt.” Moreover, questionsconcerning the nature of other facts noticed below are resolved by this
same Code section because the conv iction record as offeredbelow is also “p rima2 A person convicted of a cri me 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 cour

t must necessarily hav

e the power to take cogni zance 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 wa rrantaffidavit contained within the file because (1) the judicial notice taken did not exceed the scope of examination of the file tha t would have been available to a testi fyi ng court clerk, and (2) the type of fact extracted, being a date of an offense which res ulted in a conviction, is by its nature judicially noticeabl e. 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 proceedin gs in that case).

Based upon the foregoing, we hol d that the judicial notice o f th e original 1989 conviction file pr ovided su fficient evidence of the three 1989 convictions. Th e trial co urt was just ified, t herefo re, in con sidering a total of five qualifyingconvictio ns in enhancing the sentencing r ange. It follows that the trial court’s determination that the appella n t should be sentenced as a persi stent offender is supported in the recor d and should be affirmed.
III. Sentencing Considerations; Findings of Record.

As to the length of sentence, it is immateri al w hether the trial court considered all relevant factors and made requisite findings in the record (or whether
o ur de nov o review is not ac companied 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 se lection of minimum sentences within the applicable14

range, established to run concurrently . Any possible error c o mmitted by the trial judge with respect to his selection of a specific sentence i s 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. Wad e, Judge

________________________ Joseph M. Tipto n, Judge