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 KITCHEN

Appeal from the Circuit Court for Coffee County

No. 41631F Walter C. Kurtz, Judge

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

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TIMOTHY L. EASTER, J., concurring in part and dissenting in part.

I agree with the majority opinion’s conclusions with respect to the issues raised by 

Defendant in his direct appeal. I respectfully disagree with the conclusion reached by the 

majority as it relates to section V of the opinion. I am unable to agree with the statement 

that the trial court committed an error that breached a clear and unequivocal rule of law in 

sentencing Defendant to life without the possibility of parole pursuant to Tennessee Code 

Annotated section 40-35-120.

The majority correctly concludes that the State’s pre-trial notice appears to satisfy 

its obligation to set forth qualifying previous convictions. The combination of the current 

attempted second degree murder conviction with the prior facilitation of second degree 

murder (1992) and the second degree murder (1994) convictions meets the requirements 

of Tennessee Code Annotated section 40-35-120(a)(1)-(2). These are defined as the 

“first avenue of qualification” by the majority. Where I differ from the majority is my 

inability to see the “signal” in Cooper that mere listing of the conviction without 

indicating specifically that it is a qualifying conviction for repeat violent offender status 

does not comply with the statutory requirement. See State v. Cooper, 321 S.W.3d 501, 

507-08 (Tenn. 2010) (concluding “that the sentence of imprisonment for life without the 

possibility of parole was not authorized because the only substantially compliant notice 

was filed after trial and therefore was ineffective”) (emphasis added).

Furthermore, by process of elimination, Defendant could determine with 

reasonable clarity which offenses on the pre-trial notice were qualifying offenses. See 

State v. Willie Duncan, -- S.W.3d --, 2016 WL 6024007, at *8 (Tenn. Oct. 14, 2016)

(holding that an indictment for employment of a firearm during a dangerous felony may 
be read together with the other counts in the indictment to provide adequate notice of the 

underlying felony) (citing State v. Youngblood, 287 S.W.2d 89, 91 (Tenn. 1956); State v. 

Narrell Christopher Pierce, No. M2014-00120-CCA-R3-CD, 2015 WL 2102003, at *15 

(Tenn. Crim. App. May 5, 2015), perm. app. denied (Tenn. Aug. 13, 2015); State v. 

Demeko Gerard Duckworth, No. M2012-01234-CCA-R3-CD, 2013 WL 1933085, at 

*21(Tenn. Crim. App. May 10, 2013), perm. app. denied (Tenn. Oct. 17, 2013)). Of the 

prior convictions listed on the pre-trial notice filed by the State, only the 1992 attempted 

second degree murder conviction and the 1994 second degree murder conviction qualify 

for sentencing Defendant as a repeat violent offender. T.C.A. § 40-35-120 (b)(1)(B). 

I conclude the State’s pre-trial notice of its intent to have Defendant declared as a 

repeat violent offender was both effective and timely. It was not an empty notice. See 

Cooper, 321 S.W.3d at 507. Distinguishable from Cooper, the January 1, 2015 pre-trial 

notice clearly stated the State’s intent to seek enhanced punishment by having Defendant 

declared a repeat violent offender pursuant to Tennessee Code Annotated section 40-35-

120. The notice was substantially compliant with the repeat violent offender statute.

Substantial compliance with the notice provision by the State triggers a defendant’s duty 

of inquiry into ambiguous or incomplete aspects of the notice and the requirement that 

the defendant demonstrate prejudice to obtain relief. State v. Thompson, 36 S.W.3d 102, 

115 (Tenn. Crim. App. 2000) (citing State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990)); 

see also State v. Alvertis Boyd, No. W2010-01513-CCA-R3-CD, 2011 WL 2586811, at 

*6 (Tenn. Crim. App. July 1, 2011), perm. app. denied (Tenn. Nov. 16, 2011). Any 

evidentiary issue Defendant had with the “dates of the prior periods of incarceration as 

well as the nature of the prior convictions,” in my view, should have been raised pre-trial. 

If anything, Cooper signaled that the failure to establish a “separate period of 

incarceration” could be cured by entering a certified judgment during the sentencing 

hearing. See 321 S.W.3d 505-06.

The State’s notice was made known to Defendant over seven months before his 

trial, well in excess of the 45 days required by statute. He had plenty of time to 

complain. Defendant was clearly on notice before trial, unlike the defendant in Cooper. 

Defendant has not established that he was prejudiced by the notice filed in this case.

I would affirm the trial court in full.

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TIMOTHY L. EASTER, JUDGE