IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 13, 2016

STATE OF TENNESSEE v. KEVIN PATTERSON AKA JOHN O’KEEFE 

VARNER AKA JOHN O’KEEFE KITCHEN1

Appeal from the Circuit Court for Coffee County

No. 41,631F Walter Kurtz, Judge

No. M2015-02375-CCA-R3-CD – Filed December 7, 2016

The defendant, Kevin Patterson aka John O‟Keefe Varner aka John O‟Keefe Kitchen, 

appeals his Coffee County Circuit Court jury convictions of attempted second degree 

murder, aggravated assault, and possession of a firearm by a convicted felon, claiming 

that the trial court erred by refusing to sequester the jury, that the trial court should not 

have seated potential jurors who had served on the petit jury in a recent criminal trial, that 

the prosecutor‟s closing argument was improper, and that the evidence was insufficient to 

support his conviction of attempted second degree murder. Although we detect no error 

with regard to the defendant‟s convictions, we find that the defendant‟s sentence of life 

without the possibility of parole constitutes plain error because the State failed to comply 

with the notice requirements of Code section 40-35-120. Accordingly, we affirm all of 

the defendant‟s convictions as well as the five-year sentences imposed for the defendant‟s 

convictions of aggravated assault and possession of a firearm by a convicted felon. We 

reverse the trial court‟s finding that the defendant was a repeat violent offender, vacate 

the sentence of life without the possibility of parole, and remand the case for resentencing

within the appropriate sentencing range on the defendant‟s conviction of attempted 

second degree murder.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed in Part; Reversed and 

Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court; ROBERT L.

HOLLOWAY, JR., J., filed a concurring opinion; and TIMOTHY L. EASTER, J., filed a 

concurring and dissenting opinion.

 

1

The record indicates that the parties agreed to amend the indictment to remove the aliases, but no 

amended indictment appears in the record. In consequence, we use the defendant‟s name as listed on the 

superseding indictment filed in April 2015.
-2-

John E. Nicoll, District Public Defender (on appeal); and Daniel Marshall, Nashville, 

Tennessee (at trial), for the appellant, Kevin Patterson aka John O‟Keefe Varner aka John 

O‟Keefe Kitchen.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant 

Attorney General; and Craig Northcott, District Attorney General, for the appellee, State 

of Tennessee.

OPINION

The defendant‟s convictions relate to events that occurred on February 9, 

2013, in Manchester. On that date, the defendant shot Scott Wilfong once in the hip and 

struck Brandi Frazier in the face, sending her tumbling over the hood of a car.

The evidence adduced at trial established that Mr. Wilfong met the 

defendant for the first time during the first week of February 2013. The defendant‟s

girlfriend drove Mr. Wilfong and Ms. Frazier to the liquor store in the defendant‟s truck, 

and when they returned to the defendant‟s residence, the defendant pulled his girlfriend 

from the vehicle by her hair and struck her. He was apparently angry that she had driven 

his vehicle. Ms. Frazier shouted at the defendant to stop, and Mr. Wilfong, who had 

exited the vehicle before the defendant came outside, turned back to see what was 

happening. He saw Ms. Frazier strike the defendant in the head with a bottle of rum. Mr. 

Wilfong intervened, and the defendant warned Mr. Wilfong, “You need to put your 

b**** in check.” Mr. Wilfong instructed Ms. Frazier to go home, and the defendant went 

into his house. The entire confrontation lasted “a whole five to ten minutes tops.”

Several days later, Mr. Wilfong and Ms. Frazier, along with Ms. Frazier‟s 

children, went to the home of J.D. Martin and Heather Gilbert to have dinner and to 

discuss raising funds to bail a friend, Donald Brewer, out of jail. While there, Mr. 

Brewer‟s estranged wife, Natalie Brewer, arrived with the defendant. Ms. Brewer 

knocked briefly before walking into the house. She walked directly to Ms. Frazier, who 

was seated on the sofa, and “started cursing at” and behaving aggressively toward Ms. 

Frazier, who had called Ms. Brewer “a snitch earlier that day.” Ms. Gilbert, who had 

been a friend of Ms. Brewer‟s since high school, attempted to intervene.

In the meantime, the defendant knocked on the door and asked for Mr. 

Wilfong, saying that the two men had “unfinished business.” Mr. Wilfong, who assumed 

that the defendant was referring to their only other previous encounter, “proceeded to 

take it outside,” saying that he “was prepared to fight” given that the defendant‟s “tone”

suggested that the two men “were probably about to be in a confrontation.” When Mr. 

Wilfong, who was unarmed, got outside, he saw that the defendant had a handgun. At 
-3-

that point, Mr. Wilfong told the defendant that he “wasn‟t scared of the gun” and

“motioned toward [the defendant]” as if “to hit him.” The defendant “leaned back and 

shot at the same time, and” both men “froze for a split second.” The defendant shot Mr. 

Wilfong in the right hip. When the defendant trained his gun on Mr. Wilfong a second 

time, Mr. Wilfong ran into the nearby woods.

From his vantage point, Mr. Wilfong saw Ms. Frazier run from the house. 

From her vantage point, Ms. Frazier observed the defendant “standing there pointing a 

gun towards the back of the house . . . like, where the woods were.” When the defendant 

aimed the weapon at her, Ms. Frazier backed up toward Ms. Gilbert‟s vehicle. The 

defendant then lowered the weapon and ran toward Ms. Frazier. As he went by, the 

defendant struck her in the face with enough force to send her flying over the hood of the 

car. He then got into his truck, where Ms. Brewer, who had already run from the house, 

was waiting. The two drove away.

Ms. Frazier telephoned 9-1-1, but the police did not arrive at any time that 

evening, apparently confused about the location of the ruckus. Within an hour, Mr. 

Wilfong and Ms. Frazier had decided to go after the defendant. Mr. Wilfong procured a 

bat, and the two drove around for several hours. When their search proved unsuccessful, 

they went to the hospital so that Mr. Wilfong could seek treatment for his gunshot 

wound. He explained that he did not go to the hospital immediately because he did not 

“have a good track record with everything, as far as police and stuff like that” and 

because he was primarily concerned with “getting even and not feeling like . . . a punk.” 

Doctors decided, based upon an x-ray of Mr. Wilfong‟s hip, “that because it was clean, 

that there really wasn‟t much they could do for [him]. It would cause more damage to 

take [the bullet] out than leave it in so” they released him.

Both Mr. Wilfong and Ms. Frazier identified the defendant as the 

perpetrator. The defendant, who had fled the jurisdiction to Las Vegas, Nevada, was not 

apprehended until a year and a half later.

The defendant elected not to testify and chose to present no proof. The 

parties stipulated that the defendant had been previously convicted of a felony involving 

the use of force, violence, and a deadly weapon.

Based upon the proof presented by the State, the jury convicted the 

defendant of attempted second degree murder, aggravated assault as charged, and 

possession of a firearm by a convicted felon as charged. Following a sentencing hearing 

at which the court found the defendant to be a repeat violent offender, the trial court 

sentenced the defendant to life without the possibility of parole for the conviction of 

attempted second degree murder. The court imposed sentences of five years for both of 
-4-

the remaining convictions and ordered that they be served concurrently to one another 

and to the defendant‟s sentence of life without the possibility of parole.

The defendant filed a timely but unsuccessful motion for new trial followed 

by a timely notice of appeal. In this appeal, the defendant contends that the trial court 

erred by refusing to sequester the jury and by refusing to excuse potential jurors who had 

served on the petit jury in a criminal trial the week before the defendant‟s trial. He also 

claims that the prosecutor‟s closing argument to the jury contained an incorrect statement 

of the law and that the evidence is insufficient to support his conviction of attempted 

second degree murder.

I. Sequestration

The defendant first asserts that the successor trial judge erred by refusing to 

honor the order of sequestration filed by the original judge assigned to the case.

“Jury sequestration is now the exception rather than the general rule in 

Tennessee,” State v. Smith, 418 S.W.3d 38, 46 (Tenn. 2013), because, in all but capital 

cases, “jurors shall only be sequestered at the sound discretion of the trial judge,” T.C.A. 

§ 40-18-116. In consequence, we review the trial court‟s decision in this regard for an 

abuse of discretion.

Initially, as the State correctly points out, the transcript of the parties‟ 

discussion and the original trial judge‟s ruling on this issue is not included in the record 

on appeal. The record does not contain any evidence the defendant might have presented 

in support of the motion. The duty to prepare an adequate appellate record falls on the 

appellant, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), and, in the absence of 

an adequate record, this court must presume the trial court‟s ruling was correct, see State 

v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Without the benefit of 

these items, plenary appellate review of this issue is impossible. In addition, as the State 

also correctly points out, the defendant‟s claim is a conclusory allegation, totally 

unsupported by any argument or citation to relevant authorities. See Tenn. R. App. P. 

27(a)(7) (“The brief of the appellant shall contain . . . [a]n argument . . . setting forth . . . 

the contentions of the appellant with respect to the issues presented, and the reasons 

therefor, including the reasons why the contentions require appellate relief, with citations 

to the authorities and appropriate references to the record (which may be quoted 

verbatim) relied on[.]”). In consequence, the defendant has waived our consideration of 

this issue. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by 

argument, citation to authorities, or appropriate references to the record will be treated as 

waived in this court.”).
-5-

We also observe that the defendant acknowledged that he presented no 

evidence in support of his original motion to sequester. Only three potential jurors 

indicated any familiarity with the case, and all three were excused for cause. Under these 

circumstances, the trial court did not abuse its discretion by refusing to sequester the jury.

II. Members of the Jury Pool

The defendant next contends that the trial court erred by seating as potential 

jurors individuals who had served on the petit jury in a criminal case the week before the 

defendant‟s trial. The State argues that the defendant waived our consideration of this 

issue by failing to lodge a contemporaneous objection to the practice and by failing to 

include the issue as a ground for relief in his motion for new trial. We agree.

During voir dire, it became clear that a number of potential jurors had 

served on the petit jury in a criminal trial during the previous week. Defense counsel 

made the following remark about the circumstances:

I don‟t have any kind of objection. I‟m just – it‟s just a new 

thing for me for so many people who had just finished being 

on a jury to be pulled into this one for a town this size. So 

I‟m just stating that for whatever it‟s worth. It just seems 

kind of odd, you know.

The trial court noted that in the past it had been common for jurors to sit for many 

consecutive weeks and concluded that nothing prohibited the jurors from serving again. 

The defendant made no further comment and did not raise the issue in his motion for new 

trial.

The defendant‟s failure to lodge a contemporaneous objection results in a 

waiver of the issue. See Tenn. R. Evid. 103; Tenn. R. App. P. 36(b) (“Nothing in this 

rule shall be construed as requiring 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.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn.

Crim. App. 1988) (waiver applies when the defendant fails to make a contemporaneous 

objection); State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. 

Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App. 1987). The defendant also waived 

our consideration of this issue by failing to raise the issue in his motion for new trial. See

Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for review shall 

be predicated upon error in . . . [any] ground upon which a new trial is sought, unless the 

same was specifically stated in a motion for a new trial; otherwise such issues will be 

treated as waived.”); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) 
-6-

(holding that a defendant relinquishes the right to argue on appeal any issues that should 

have been presented in a motion for new trial but were not raised in the motion); State v. 

Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Accordingly, we will not 

consider this issue.

III. Sufficiency

The defendant asserts that the evidence was insufficient to support his 

conviction of attempted second degree murder because the State failed to establish that 

the defendant did not accidentally discharge the firearm. The State contends that the 

evidence supports the conviction.

We review the defendant‟s claim of insufficient evidence mindful that our 

standard of review is whether, after considering the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 

307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This 

standard applies to findings of guilt based upon direct evidence, circumstantial evidence, 

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither 

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id. 

Questions concerning the credibility of the witnesses, the weight and value of the 

evidence, as well as all factual issues raised by the evidence are resolved by the trier of 

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must 

afford the State the strongest legitimate view of the evidence contained in the record as 

well as all reasonable and legitimate inferences which may be drawn from the evidence. 

Id.

As charged in this case, “[s]econd degree murder is . . . [a] knowing killing 

of another.” T.C.A. § 39-13-210(a). “A person acts knowingly with respect to a result of 

the person‟s conduct when the person is aware that the conduct is reasonably certain to 

cause the result.” Id. § 39-11-302(b). Criminal attempt occurs when a person “acting 

with the kind of culpability otherwise required for the offense . . . [a]cts 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 person believes them to be, and the conduct 

constitutes a substantial step toward the commission of the offense.” Id. § 39-12-

101(a)(3). To qualify as a “substantial step,” the person‟s “entire course of action” must 

be “corroborative of the intent to commit the offense.” Id. § 39-12-101(b). 
-7-

The evidence adduced at trial, in the light most favorable to the State, 

established that the defendant went to Mr. Martin‟s residence and asked Mr. Wilfong to 

come outside to settle some “unfinished business,” apparently a reference to their earlier 

encounter. When Mr. Wilfong got outside, the defendant pulled out a handgun and 

pointed it at Mr. Wilfong. Mr. Wilfong charged, and the defendant fired the gun. 

Although the defendant argued that he accidentally fired the weapon, the jury, as the trier 

of fact, was free to reject his theory. In our view, the evidence supports the jury‟s 

conclusion that the defendant committed attempted second degree murder.

IV. Closing Argument

The defendant claims that the prosecutor engaged in misconduct by 

improperly arguing to the jury an incorrect statement of the law. The State again asserts 

that the defendant waived consideration of this issue by failing to lodge a 

contemporaneous objection and by failing to raise the issue in his motion for new trial. 

Again, we agree with the State.

The defendant contends that the following argument was improper:

. . . . You stick a gun in someone‟s face after you have picked 

a fight with them, even if you buy the theory that he was 

stepping back that he accidentally pulled the trigger, guess 

what, he acted with awareness that his conduct could result in 

the death of Scottie Wilfong. The fancy term for that is 

attempted second-degree murder. So based on what the 

defendant just argued, you-all are the barrier between 

attempted second-degree murder and attempted first degree 

murder.

The defendant argues that this argument was a misstatement of the law because second 

degree murder is a result-of-conduct offense.

As stated above, the failure to lodge a contemporaneous objection to the 

challenged argument and to raise the issue in the motion for new trial results in the 

waiver of plenary review. Moreover, we see no basis for noticing the error despite 

waiver. See Tenn. R. App. P. 36(b). Even assuming that the argument was improper, in 

light of the overwhelming evidence of the defendant‟s guilt, it would be harmless. Thus, 

nothing suggests that “„a substantial right of the accused [was] adversely affected‟” or 

that “„consideration of the error is “necessary to do substantial justice.”‟” See State v. 

Smith, 24 S.W.3d 274, 282, 283 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 

626, 641-42 (Tenn. Crim. App. 1994)).
-8-

V. Sentencing

Although not raised by the parties, we notice plain error in the defendant‟s 

sentence of life without parole. This court will grant relief for plain error pursuant to 

Rule 36(b) only when:

“(1) the record clearly establishes what occurred in the trial 

court; (2) the error breached a clear and unequivocal rule of 

law; (3) the error adversely affected a substantial right of the 

complaining party; (4) the error was not waived for tactical 

purposes; and (5) substantial justice is at stake.”

State v. Cooper, 321 S.W.3d 501, 506 (Tenn. 2010) (quoting State v. Hatcher, 310 

S.W.3d 788, 808 (Tenn. 2010)).

An offender becomes qualified for sentencing as a repeat violent offender 

by meeting the requirements in Code section 40-35-120(a), which provides three avenues 

of qualification. Subsections (a)(1) and (a)(2) of Code section 40-35-120 provide for 

repeat violent offender sentencing for an offender convicted of a crime classified as a 

violent offense in subsection (b)(1) when the defendant “[h]as at least two (2) prior 

convictions for offenses classified in subdivision (b)(1) or (b)(2) as a violent offense.” 

T.C.A. § 40-35-120(a)(1)-(2). Subsections (a)(3) and (a)(4) provide for repeat violent 

offender sentencing for an offender convicted of a crime classified as a violent offense in 

subsection (c)(1) when the defendant “[h]as at least one (1) conviction for an offense 

classified in subdivision (c)(1) or (c)(2) as a violent offense.” Id. § 40-35-120(a)(3)-(4). 

Subsections (a)(5) and (a)(6) provide for repeat violent offender sentencing for a 

defendant convicted of an offense classified as a violent offense in subsection (d)(1) 

when the defendant “[h]as at least one (1) prior conviction for an offense classified in 

subdivision (d)(1) or (d)(2) as a violent offense with the exception of the prior offense of 

robbery by use of a deadly weapon as listed in § 40-35-118(a).” Id. § 40-35-120(a)(5)-

(6). Although there is some overlap among the lists of offenses enumerated as violent 

offenses in subsections (b)(1), (c)(1), and (d)(1), the lists are not identical. See id. § 40-

35-120(b)(1), (c)(1), (d)(1). As a result, an offense may qualify as a “violent offense” 

under one subsection of Code section 40-35-120 but not another.

In addition to the three distinct avenues of qualification, Code section 40-

35-120 ties the method of counting prior convictions as well as the definition of a 

qualifying “prior conviction” to the avenue of repeat violent offender sentencing that the 

State seeks in an individual case. To this end, Code section 40-35-120(e) provides:
-9-

(e) In determining the number of prior convictions a 

defendant has received:

(1) “Prior conviction” means a defendant serves and is 

released from a period of incarceration for the commission of 

an offense or offenses so that a defendant must:

(A) To qualify under subdivision (a)(1) and (a)(2), 

have served two (2) separate periods of incarceration for the 

commission of at least two (2) of the predicate offenses 

designated in subdivision (b)(1) or (b)(2) before committing 

an offense designated in subdivision (b)(1);

(B) To qualify under subdivision (a)(3) and (a)(4), at 

least one (1) separate period of incarceration for the 

commission of a predicate offense designated in subdivision 

(c)(1) or (c)(2) before committing an offense designated in 

subdivision (c)(1); or

(C) To qualify under subdivision (a)(5) and (a)(6), at 

least one (1) separate period of incarceration for the 

commission of a predicate offense designated in subdivision 

(d)(1) or (d)(2), with the exception of the prior offense of 

robbery by use of a deadly weapon as listed in § 40-35-

118(a), before committing an offense designated in 

subdivision (d)(1);

T.C.A. § 40-35120(e)(1). The statute also contains a specific definition of “separate 

period of incarceration”:

(2) “Separate period of incarceration” includes a 

sentence to a community correction program pursuant to 

chapter 36 of this title, a sentence to split confinement 

pursuant to § 40-35-306 or a sentence to a periodic 

confinement pursuant to § 40-35-307. Any offense 

designated as a violent offense pursuant to subsection (b), (c) 

or (d) that is committed while incarcerated or committed 

while the prisoner is assigned to a program whereby the 

prisoner enjoys the privilege of supervised release into the 

community, including, but not limited to, work release, 

educational release, restitution release, medical furlough or 
-10-

that is committed while on escape status from any 

correctional institution shall be considered as a separate 

period of incarceration;

Id. § 40-35-120(e)(2). Juvenile adjudications do not become qualifying prior convictions 

“unless the juvenile was convicted of the predicate offense in a criminal court and 

sentenced to confinement in the department of correction.” Id. § 40-35-120(e)(3).

“Prior convictions” include convictions under the laws 

of any other state, government or country that, if committed 

in this state, would have constituted a predicate offense in 

subsection (b), (c) or (d) if there are separate periods of 

incarceration in the other state as required by subdivision 

(e)(1). If a felony from a jurisdiction other than Tennessee is 

not a named predicate offense specified in subsection (b), (c) 

or (d) in this state and if the elements of the felony are the 

same as a designated predicate offense, it shall be considered 

a prior conviction; provided, that there are separate periods of 

incarceration in the other state as required in subdivision 

(e)(1).

Id. § 40-35-120(e)(4).

Code section 40-35-120 also requires that the State provide pretrial notice 

of its intent to seek sentencing as a repeat violent offender:

The district attorney general shall file a statement with the 

court and the defense counsel within forty-five (45) days of 

the arraignment pursuant to Rule 10 of the Rules of Criminal 

Procedure that the defendant is a repeat violent offender. The 

statement, which shall not be made known to the jury 

determining the guilt or innocence of the defendant, shall set 

forth the dates of the prior periods of incarceration, as well as 

the nature of the prior conviction offenses. If the notice is not 

filed within forty-five (45) days of the arraignment, the 

defendant shall be granted a continuance so that the defendant 

will have forty-five (45) days between receipt of notice and 

trial.

T.C.A. § 40-35-120(i)(2).
-11-

In State v. Cooper, the supreme court examined the notice requirement in 

Code section 40-35-120(i)(2). After Cooper was charged with aggravated rape and 

aggravated assault, the State “filed a „Notice of Intention to Use Prior Bad Acts for 

Impeachment and Enhancement of Sentence‟” that purported to “„give[] notice of 

defendant‟s prior convictions‟” and that listed “„Sodomy (felony) 3 counts‟ as a prior 

conviction of Mr. Cooper in the circuit court in Klamath Falls, Oregon.” That notice did 

not “mention Mr. Cooper‟s status as a repeat violent offender.” Cooper, 321 S.W.3d at 

503. After Cooper was convicted of the charged offenses, 

the State filed a “Sentencing Position” in which it asserted 

that the conviction placed Mr. Cooper in the category of a 

“repeat violent offender” requiring a sentence of 

“imprisonment for life without possibility of parole” pursuant 

to Tennessee Code Annotated section 40-35-120 (2006), 

commonly referred to as the “three strikes” law. The State 

based this assertion on the notice “furnished . . . on May 12, 

2003[,] that it would use prior sodomy convictions in Oregon 

in 1995 for sentencing purposes.”

Id. at 504. As the supreme court observed, Cooper did not object to the timing or 

sufficiency of the State‟s notice of his status as a repeat violent offender. Id. “The trial 

court raised the issue sua sponte and concluded that Mr. Cooper had not shown that he 

was prejudiced by deficiencies in the State‟s notice.” Id. The defendant raised the issue 

of the sufficiency of the notice in his motion for new trial but did not raise the issue on 

appeal. This court examined the issue for plain error and concluded that the defendant 

could not establish prejudice despite the defective pretrial notice, noting Cooper‟s 

awareness that the State was seeking repeat violent offender sentencing and the evidence 

presented at the sentencing hearing. State v. Ralph Byrd Cooper, Jr., No. E2008-02044-

CCA-R3-CD (Tenn. Crim. App., Knoxville, Aug. 3, 2009), aff’d in part, rev’d in part, 

321 S.W.3d 501 (Tenn. 2010) (“Although the post-verdict filing of the Code section 40-

35-120(i)(2) statement clearly breached an unequivocal rule of law, we cannot glean from 

the record whether the violation of the statute adversely affected the defendant.”).

The supreme court first rejected Cooper‟s argument that the State had failed 

to establish beyond a reasonable doubt that he had served separate periods of 

incarceration as required by Code section 40-35-120, concluding “that the certified 

Oregon judgment constituted proof beyond a reasonable doubt that Mr. Cooper had 

previously served a separate period of incarceration.” Id. at 506.

The court then considered Cooper‟s challenge to the sufficiency of the 

State‟s notice seeking a sentence of life without parole under the repeat violent offender 
-12-

statute. Examining first “the pretrial filing on May 12, 2003,” the court observed that the 

notice “failed to state that Mr. Cooper is a repeat violent offender” and “also failed to set 

forth the nature of the sodomy conviction as a qualifying prior conviction and the dates of 

the prior period of incarceration, both of which are required by section 40-35-120(i)(2).” 

Id. The court concluded that “[a]s a result of these omissions, the May 12, 2003 filing 

did not qualify as notice pursuant to the repeat violent offender statute.” Id. The high 

court also concluded that “[t]he failure to file this notice prior to trial breached a clear and 

unequivocal rule of law that post-trial filing of the „Sentencing Position‟ failed to cure.” 

Id.

The court noted that it had not before “addressed the effect of filing notice 

of the repeat violent offender status after trial and whether such notice affects a 

substantial right of the defendant” and observed that “[t]he notice requirement in the 

repeat violent offender statute is similar to that in Tennessee Code Annotated section 40-

35-202(a) (2006), which requires the State to provide notice not less than ten days before 

trial of its intent to seek enhanced punishment.” Ultimately, however, the court 

concluded that, “[i]n light of the similar punishments,” the notice requirement in Code 

section 40-35-120(i)(2) was more akin to “the notice requirement for intent to seek 

imprisonment for life without the possibility of parole for first degree murder.” Cooper, 

321 S.W.3d at 507. The high court thus held that the Code section 40-35-120(i)(2) notice 

must be filed prior to trial and must comply with the requirements set forth in the statute 

to be effective. See id. at 507-08. The supreme court did not consider the ameliorative 

effects of Cooper‟s actual knowledge of the State‟s intention to have him declared a 

repeat violent offender or the evidence presented at the sentencing hearing.

In this case, the record clearly establishes what occurred in the trial court. 

On January 1, 2015, 93 days after the filing of the original indictment and four months 

before the filing of the superseding indictment, the State filed a document styled “Notice 

of Prior Convictions.” The document indicates that the State intended that this pleading

operate as notice “pursuant to [R]ule 609(a)(3) of the Tennessee Rules of Evidence and 

T.C.A. § 40-35-202(a) . . . of the following convictions that the State will seek to 

introduce to impeach the defendant‟s testimony, and/or to enhance the defendant‟s 

punishment.” Unlike the deficient pretrial notice in Cooper, the document filed in this 

case provides that the State “also hereby gives notice to the defendant of its intent to seek 

to have him declared as a Repeat Violent Offender pursuant to T.C.A. § 40-35-120.” The 

notice document does not indicate which of the provisions for repeat violent offender 

sentencing that the State seeks.

Like the pretrial notice deemed insufficient in Cooper, the notice document 

in this case lists the defendant‟s prior convictions, including theft (1985), possession of a 

firearm (1987), conspiracy (1987), aggravated assault (1990), facilitation of second 
-13-

degree murder (1992), possession of a weapon (1993), and second degree murder (1994), 

but does not indicate which of the prior convictions are qualifying convictions for 

sentencing as a repeat violent offender. Because the defendant was charged with 

attempted second degree murder, an offense classified as a violent offense in Code 

section 40-35-120(b)(1)(B), he was only subject to repeat violent offender sentencing if 

he had “at least two (2) prior convictions for offenses classified in subdivision (b)(1) or 

(b)(2) as a violent offense.” T.C.A. § 40-35-120(a)(1)-(2). His previous convictions of 

facilitation of second degree murder and second degree murder appear to satisfy this 

requirement. In Cooper, however, the supreme court signaled that, for purposes of 

complying with the notice provision of Code section 40-35-120, mere listing of the name 

of the conviction without indicating specifically that it is a qualifying prior conviction for 

repeat violent offender status does not comply with the statutory requirements. The 

supreme court determined that the notice in Cooper, which “list[ed] „Sodomy (felony) 3 

counts‟ as a prior conviction of Mr. Cooper in the circuit court in Klamath Falls, Oregon” 

did not properly “set forth the nature of the” prior convictions as qualifying convictions 

for repeat violent offender status. Cooper, 321 S.W.3d at 503 (Tenn. 2010); see also 

Ralph Byrd Cooper, Jr., No. E2008-02044-CCA-R3-CD (“Prior to trial, the State filed a 

„Notice of Intention to Use Prior Bad Acts for Impeachment and Enhancement of 

Sentence,‟ listing the defendant‟s previous convictions. This „notice‟ included previous 

convictions of burglary and grand larceny in Roane County in 1988; convictions of theft 

of rental property and aggravated robbery in Blount County in 1995; two separate 

convictions of public intoxication in 1985 and 1987 and three convictions of passing 

worthless checks in 1997 in Knox County; and one conviction of theft in Klamath Falls, 

Oregon, in 1993. Further, the notice included an Oregon conviction on September 12, 

1995, of three counts of „Sodomy (felony).‟”). Given the complex framework of 

qualifying prior convictions and the severity of the sentence to be imposed, it makes 

sense that the supreme court would require more than a list of the defendant‟s prior 

convictions without setting forth which of those convictions are qualifying convictions as

provided in Code section 40-35-120(a). Additionally, like the pretrial notice deemed 

insufficient in Cooper, the notice document in this case does not list “the dates of the 

prior period of incarceration,” which is “required by section 40-35-120(i)(2).” Cooper, 

321 S.W.3d at 506. Such information is a determinant in identifying prior qualifying 

convictions.

Although the court appeared, at one point, to indicate that substantial 

compliance with the notice requirement of Code section 40-35-120 would suffice, see id.

(observing that “the only substantially compliant notice was filed after trial and therefore 

was ineffective), the court specifically held that “[a]s a result of the[] omissions” in the 

pretrial notice, that “filing did not qualify as notice pursuant to the repeat violent 

offender statute,” id. at 506 (emphasis added.) Moreover, the court reversed the 

conclusion that this court had reached that, because the defendant had actual notice and 
-14-

because the State presented evidence to support beyond a reasonable doubt the finding 

that Cooper was a repeat violent offender, Cooper was not prejudiced by the State‟s 

failure to comply with the notice provision of Code section 40-35-120. Ultimately, 

Cooper‟s failure to object, the presence of other pleadings that put Cooper on notice that 

the State was seeking repeat violent offender sentencing, and the presentation of proof at 

the sentencing hearing had no bearing on the court‟s decision to reverse Cooper‟s 

sentence.

As indicated, two of the three omissions that rendered the notice ineffective 

in Cooper are present here. The document did not “set forth the nature of the” 

defendant‟s prior convictions “as . . . qualifying prior conviction[s] and the dates of the 

prior period of incarceration, both of which are required by section 40-35-120(i)(2).” Id.

at 506. In consequence, the document filed by the State “did not qualify as notice 

pursuant to the repeat violent offender statute.” Id. The State‟s failure to file a sufficient 

notice pursuant to the repeat violent offender statute prior to the defendant‟s trial

breached a clear and unequivocal rule of law, and the record contains no indication that 

the defendant waived the issue for tactical reasons. See id. Additionally, because the 

State failed to comply with Code section 40-35-120(i)(2), “the sentence of imprisonment 

for life without the possibility of parole was not authorized.” Id. at 507. As was true in 

Cooper, “the unauthorized sentence adversely affected a substantial right of” the 

defendant, and “remedying this error is in the interest of substantial justice.” Id. at 508. 

Therefore, we reverse the trial court‟s finding that the defendant was a repeat violent 

offender, vacate the sentence of life without the possibility of parole, and remand the case 

for resentencing in accordance with the State‟s notice filed on January 1, 2015, “as a 

multiple, persistent, or career offender pursuant to Tennessee Code Annotated section 40-

35-202.” Id.

VI. Conclusion

Based upon the foregoing analysis, we affirm the defendant‟s convictions 

and the five-year sentences imposed by the trial court for the convictions of aggravated 

assault and possession of a firearm by a convicted felon. Because the notice filed by the 

State did not qualify as notice pursuant to the repeat violent offender statute, we reverse 

the trial court‟s finding that the defendant was a repeat violent offender, vacate the 

sentence of life without the possibility of parole, and remand the case for resentencing.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE