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

Briefs S eptem

ber 19, 200 1 STATE OF TENNESSEE v. TOMMY G. BE NHAM Appeal from the Criminal Court for Davidson County No. 98-C-2234 J. Randall Wyatt, Jr., Judge

No. M2000-02357-CCA-R3-CD - F iled March 19, 2002
The defenda

nt, Tommy

G. Benham, was convicted of two counts of at te mp te d a ggr av at ed ro bb er y, a Clas s C fel ony. The t rial c ourt s enten ced th e defen dant a s a Ran ge II I, persistent offender

to eleven yearson each count, to be served concurre ntly. I n this appeal of right, the defendant arg ues that the state failed to provide n otice tha

t it would seek enha

nced pun ishment, a s requir

ed by Tenness e e Code Annotated section 40-35-202(a). The judgments of the trial court are affirmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID G. H AYES J., joined. J ERRY L. S MITH , J., filed a dissenting opinion.
Jodie A. Bell ( at trial) and Jeffr ey A. DeVa sher (on

appeal) , Assis ta nt Public Defenders, for the appella nt, Tommy

G. Benh am. Paul G. S um mer s, A tt orn ey Gen era l & R epo rte r; J enn ife r L. Bledsoe, Assistant Attorney Genera l; and Eric Herbert, Assistant District Attorney General, for the appellee, the State of Te nnessee. OPINION
On July 6, 1999, Bobby

Raymer, Jr., was working as an att endant a t the Swift

y Oil service station on Gallat

in Road in N ashville. At appro ximately 4:40 P.M., the defendant approached Raymer, put “a little paring knife” to his throat, and demanded money and cig arettes

. The defendant t hreatened

to kill Raymer if he did not comply . When Raymer slapped the de fendant’s hand, th e knife scratched the back of hi s arm. Raymer r an, warning the manage

r of the service station, Joe Redd, to watch o

ut for the defenda nt. The de

fendant stabbed R

edd in the chest withthe knife. A button on Redd’sshirt pre vente d the kni fe from penetrating his chest. Redd then g rabbed the defendant by the arm and f

orced him to drop the knife. WhenRedd pickedup a windshield cleaner and swung at the defendant, the defe ndant fled.-2-

As th e d ef

en da nt ra n a wa y, he was pursued by three men who had witnessed the altercation. The men even

tually caught the defendant and a strug gle ensued. The def endant r eceive d injuriesto his face and was hospitalize d for sev eral da ys.
At the sentencing hearing, the de fendant argued that he should be sentenc ed as a Ra nge I, standardoffender because the state had f ailed to provide notice of its intent to seek enhanced punishmen

t. The state argued that its res pons e to the defendant’s request for discovery served as not ice th at t he s tat e in ten ded to see k pu ni shm ent in ex ces s of Ran ge I. Appr oxi mately

two week s later, t

he trial c ourt rule d that the state wou

ld be allo wed to introduce proof

that t he defe ndant quali fied as a Range II I, persistent offender . When the hearing resumed, Deputy Criminal Court Clerk Bar bara Wise testified that the defendant had been convicted in November of 1996 of three counts of theft over $1,000. F urther, Ms. Wise testified that the defendant was convicted of

four cou nts of fo rg er y in Dece

mber of 1 991, a we apons ch arge in December

of 1989, grand larceny

in August of 1988, and burglary in February

of 1987. All of the convicti ons were

felonie s. Based on the defendant’s criminal history , the tri al c our t co ncl ude d t hat he w as a Ran ge III, persistent offender and

found that enhancement factor (1), that the de fendant had a previous history of criminal behavior great er than t hat n eces sary to qualify

him as a Range II

I offender, w as applicable. See

Tenn. Code Ann. § 40-35-114(1). The defendant’s history

of substance abuse and his remorse for the crimes were deemed mitigating factors. The trial cour t imposed a sen tence of eleven ye ars, one year g

reater than theminimum, for each count and ordered that the sentence s be se rv ed co nc ur re nt ly.
In this appeal, the defendant contends that the trial court erred b y sentenci ng him as a Ra nge III, persistent offender because the state f ailed to provide notice of its intent to seek enhanced punishmentin compliance with Tennessee Code Annotated section 40-35-2 02( a). The defendant does not, however, contend that he would not other wise qua lify for Rang e II

I sen tencing . The stat

e argues that its re sponse

to the request for discovery , which included the defendant’s prior criminal hi st or y, placed the defendant on n otice tha t h is prior convictions would be used for enhancement purposes
. When there i s a chal lenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial cou

rt consid ered the sentenc ing principles a

nd all relevant facts and circu mstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W. 2d 597, 600 (Tenn. 1994 ). "I f the tri al court applies inappropriate factors or otherwis e fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sente ncing Co mmission Comm ents provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Cod e Ann. § 40- 35-401, Se

ntencing Commission Co mments.-3-

Our review requires an

analysis of (1) the

evidence, if any , received at the trial and sentencing hearin g; (2) the presentence report; (3) the princ ip les of sentencing and the arg uments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the of fense; (5) any

mitigating or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potentia

l for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calculating thesentenc e for a Cl ass C felony conviction, the pre sumptive sentence is the minimum in the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35- 210(c). If there ar

e enhancement but no mitigating factor s, the trial court may set the se ntence above the mi nimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving bothenhanc emen t and mitigating factors requires an a ssignment of relative weight for the enhancement

factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210(e). The sentence must then be reduced within the range by any weig ht assigned to the mitigating factors present. Id.
If the trial court's findings of fact are adequately

supported by the record, this court may not modify the sentence even if it would ha ve pref erred a differe nt result. State v. Fletcher , 805 S.W.2d 785 (Tenn. Cr

im. App. 1991). The presumption of correctness is, however, " conditioned upon the affirmative showing

in the record that the trial court considered sentencing principles and relevant facts and circumst ances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The trial court must place on the record the reasons for the sentence. State v. Jones , 883 S.W.2d 597 (Tenn. 1994).
Tenness ee Code A

nnotated section 4 0-35-202

providesin pertine

nt part a s follows:
If the distri ct attorney

gener al believ es that a

defenda nt should be sentenced as multiple, persistent, or career offender, the di strict at torney g eneral shall file a statement thereof with the court and defense counse l not les s th an te n ( 10 ) d ays before trial or acceptance of a g uilty plea; provided, that notice may be w aived by the defendant in writing with the consent of the district attorn eygeneral and the court accepting the plea. Such statement, which shall not be made kno wn to t he jury determining the guilt or innocence of the defendant on the primary offense, must set forth the nature of the prior

felony convictions, the

dates of the convictions and the identity of the courts of the

convicti ons.
Tenn. Code Ann. § 40-35-2 02(a). T he purpo se of the

notice r equirem ent is to provide a defendant with"fair notice" th at he is "e xpos ed to other t han standard sentencing." State v. A dams , 788 S.W.2d 557, 558 (Tenn. 1990). The requirement is intended to facilitate plea-barg aining, to inform decisions to enter

a guilty plea , and to assist with decisions regarding trial strateg y. Id. When the information prov ide d is incomp lete or in correct, the inqu

iry is whethe

r the notic e was " materia

lly misleading." Id. at 559. When the state substantially complies with the notice requirement, the defendant “has a duty to inquire a

bout an ambiguous or incomplete notice and must show prejudice to obtain relief.” Id. In Adams , our hig h court ultimat ely determined tha t the notice given by

the-4-

state d id not provide details of former judgments and, "[n]ot only was it inadequate to advise that a Range I I sen tence w as sought, it was p ositive ly misleading, as it dea lt exclusively with matters relevant to a nother phas e of sentencin g." Id.
In this case, the state’ s discovery re sponse, filed some eight months before the trial date, containsthe following stat ement:
Pursuant to Rule 16(a)(1)(B) Tenn. R. Crim. P., the defendant' s prior record is as follows: See Attached. State provided defendant’s out of county reco rd to defense earlier in court. T he defendant, based on his o verall r ecord, is a career offender. Should the defendant testify

at trial, the State intends to use the prior criminal record during cross-examination for impeachment purposes and enhanceme nt purposes pursuant to State v. Morgan , 541 S.W.2d 385, Tennessee Rules of Evidence, 609 and 405, and T.C.A. § 40-35-202.
The trial cou

rt concl uded that the resp onse, coupled wit h an attached printout detailing the defendant’s prior co nvictions , “substa ntially complied” with the notice requirement. I t ruled that the response by the state shifted the bur den to the defendant to inquire about any deficienc ies i n the notice.
In ou r v ie w, th e p le ad in gs fi le d b y the state qualified as more than “empty notice.” See Adams , 788 S.W.2d at 559. The information provided by the state, a lthough incorrect in that

i t suggested that the defendant would qua lify as a career offende

r, one grade higher

than a persistent offender, placed the defenda nt on notice that the state was seeking enhance d range classification.
Although not s pecifically r equired, Tennessee Code Annotated section 40-35-202( a) appears to contemplate the f

i ling of a separate notice. The statute make s reference to “a statement” a nd requires notice of

the natur e and da tes of pr ior convi c tions, as w ell as the ide ntity of the co urt in which the prior

convicti ons were

obtained . In th

is instance, the discovery

response was timely, was filed well in advance of trial, and included the requisite information. To manda te the filing of a separate document would place form over substanc e. See Tenn. Code Ann. § 40-35-202(a).
The notice w as sufficiently c lear to shift the burden to the defendant to inquire about any ambiguities he perceived. See Adams , 788 S.W.2d at 559. Mo st im po rt an tl y, the defendant has not demonstr ate d any prejudice as a result of the form of the notice. See State v. Debro , 787 S.W.2 d 932, 934 (Tenn. Crim. App. 1989). Thus, a reduce d sentenc ing cla ssificat ion is not warranted. Our supreme court has held that absent the showing of prejudice, a continuance of the procee dings is the defendant's exclusive remedy

. See Stephenson , 752 S.W.2d at 81. Accordingly , the judgment of the trial court is affirmed.-5- ___________________________________ GARY R. WADE, PRESIDING JUDGE