IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 28, 2015, at Knoxville

STATE OF TENNESSEE v. CHAD M. NICOL

Appeal from the Criminal Court for Wilson County

No. 13-CR-615 David Earl Durham, Judge

No. M2014-01474-CCA-R3-CD - Filed July 14, 2015

The Defendant, Chad M. Nicol, pleaded guilty to passing a worthless check of more than

$500. The trial court sentenced him as a career offender to serve six years in the Tennessee

Department of Correction. On appeal, the Defendant contends that the trial court erred when

it sentenced him as a career offender. He further contends that the trial court erred when it

ordered his sentence to be served consecutively to his sentence for another conviction and

when it ordered him to serve his sentence in confinement. After a thorough review of the

record and the applicable authorities, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERTW.WEDEMEYER, J., delivered the opinion of the court, in which D. KELLY THOMAS,

JR., and TIMOTHY L. EASTER, JJ., joined.

Jonathan M. Tinsley, Lebanon, Tennessee, for the appellant, Chad M. Nicol.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;

Tom P. Thompson, Jr., District Attorney General; James Lea, Jr., and Brian W. Fuller,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises from the Defendant writing a worthless check to a jeweler in

Lebanon, Tennessee. A Wilson County grand jury indicted the Defendant for passing a

worthless check of more than $500, and the Defendant pleaded guilty as charged. At the

January 29, 2014, guilty plea hearing, the State announced the factual basis underlying the

guilty plea as follows:
[O]n December 3, 2011, the victim in this case, Shawn Smith, . . . a

jeweler here in Lebanon, Wilson County, would state that the Defendant, [],

came in to the store, made a purchase from the jeweler in the amount of

[$785.84].

[The Defendant] made that purchase with a check on the account of

Nora Lynn Nicol and [the Defendant]. It’s [the Defendant’s] signature on the

check. That check came back insufficient funds. A few days later the store

did try to contact [the Defendant]. [The store made] contact with him several

times. He continuously promised that he would come back in with the money.

They did send him a letter stating that he needed to take care of the check. The

check was never picked up and never paid.

The State also made the following statement in open court:

[The Defendant] wants to enter a plea with a sentencing hearing. He’s

pleading guilty to a worthless check [charge] which is [a Class] E felony. [The

State has] advised him . . . that his range would be anywhere from one to six

years, Your Honor. He’s possibly a career offender and [the State will] be

filing an enhancement notice.

Based upon this evidence, the trial court accepted the Defendant’s guilty plea. The

trial court addressed the State’s intention to file an enhancement notice and advised the

Defendant that his prior convictions might place him in a higher sentencing range. The

Defendant acknowledged his understanding of this possibility. On May 20, 2014, the State

filed a notice of its intent to seek enhanced punishment for the Defendant as a career offender

(hereinafter “notice”).

A sentencing hearing was held on May 30, 2014, wherein the State offered the

presentence report and certified copies of the Defendant’s prior convictions, which the trial

court admitted into evidence. Also admitted into evidence were records provided by the

Defendant in support of mitigation, copies of judgments for the Defendant’s prior

convictions, and a booklet of statutory authority in support of his arguments. After hearing

arguments and considering the evidence, the trial court stated that, for sentencing range

purposes, it was considering the Defendant’s six prior felonies committed before December

2011, the date of the Defendant’s current offense. Based upon this finding, the trial court

determined that the Defendant was a career offender. See T.C.A. § 40-35-108(a)(3) (2014).

The trial court next considered the mitigating factors. The trial court stated that it was

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“helpful to the Defendant that he had been on good behavior while incarcerated. However,

the trial court did not find any mitigating factors applicable for this particular offense. The

trial court found two consecutive sentencing factors applicable: factor (2), that the

Defendant’s record of criminal activity was extensive; and factor (6), that the Defendant was

being sentenced for an offense committed while he was on probation. T.C.A. § 40-35-115

(2), (6) (2014). The trial court noted that the Defendant had at least twenty-two convictions

in Wilson, Sevier, and Cocke Counties. The trial court went on to state that sentencing

alternatives were not appropriate in this case because the Defendant was serving a sentence

for a Cocke County conviction at the time he was being sentenced. The trial court found that

probation or other less restrictive means of punishment were not appropriate considering that

the Defendant was a career offender and had been unsuccessful at completing sentences

involving probation.

The trial court sentenced the Defendant to six years as a career offender in the

Tennessee Department of Correction and ordered that his sentence be served consecutively

to his sentence in Cocke County. It is from this judgment that the Defendant now appeals.

II. Analysis

On appeal, the Defendant makes several arguments in regard to his sentence. He

contends that the trial court erred in sentencing him as a career offender because the State

filed a “defective” and “untimely” notice of its intent to seek the enhanced sentence. The

Defendant next contends that the trial court erred when it ordered his current sentence to run

consecutively to his sentence in Cocke County. He states that he entered his plea under the

false impression that this sentence would be served concurrently with his Cocke County

sentence. Finally, the Defendant contends that the trial court erred when it ordered him to

serve his sentence in confinement. The State counters that the record supports the trial

court’s sentencing determinations. We agree with the State.

In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law

and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court

announced that “sentences imposed by the trial court within the appropriate statutory range

are to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of

discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in

light of the factual circumstances and relevant legal principlesinvolved in a particular case.’”

State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,

242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial

evidence that would support the trial court’s decision. Id. at 554-55; State v. Grear, 568

S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).

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The reviewing court should uphold the sentence “so long as it is within the appropriate range

and the record demonstrates that the sentence is otherwise in compliance with the purposes

and principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court

sentences within the appropriate range and properly applies the purposes and principles of

the Sentencing Act, its decision will be granted a presumption of reasonableness. Id. at 707.

Our Supreme Court extended the Bise standard to appellate review of the manner of

service of the sentence and consecutive sentencing. The Court explicitly held that “the abuse

of discretion standard, accompanied by a presumption of reasonableness, applies to

within-range sentences that reflect a decision based upon the purposes and principles of

sentencing, including the questions related to probation or any other alternative sentence.”

State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). In State v. Pollard, the Court held,

“the appropriate standard of appellate review for consecutive sentencing is abuse of

discretion accompanied by a presumption of reasonableness.” 432 S.W.3d 851, 860 (Tenn.

2013). We also recognize that the defendant bears “the burden of demonstrating that the

sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the proper sentence, the trial court must consider: (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 mitigating and enhancement factors set out in Tennessee Code Annotated

sections 40-35-113 and -114; (6) any statistical information provided by the administrative

office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any

statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.

§ 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial

court must also consider the potential or lack of potential for rehabilitation or treatment of

the defendant in determining the sentence alternative or length of a term to be imposed.

T.C.A. § 40-35-103 (2014).

A. Notice of Enhanced Punishment

The Defendant contends that the State’s notice of its intent to seek career offender

status failed to comply with the statutory ten-day notice requirement. T.C.A.§ 40-35-202(a)

(2014). He also contends that the prior offense dates listed on the judgments for those

offenses are incorrect because the prior offenses were part of a “crime spree” wherein the

forged checks were written within a 24 hour period. The State replies that the Defendant had

actual knowledge when he entered his guilty plea that the State would be seeking an

enhanced sentence based upon the prosecutor’s statements at the guilty plea submission

hearing. The State further responds that the faces of the prior judgments indicate six prior

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felony convictions for six offenses committed on six different dates, thus warranting the

career offender classification. The State also points out that the Defendant’s argument

pertaining to the issue of the dates of his prior offenses should have been raised at the time

those judgments were entered.

“If the district attorney general believes that a defendant should be sentenced as a

multiple, persistent or career offender, the district attorney general shall file a statement

thereof with the court and defense counsel not less than ten (10) days before trial or

acceptance of a guilty plea[.]” T.C.A. § 40-35-202(a); see also Tenn. R. Crim. P. 12.3(a).

As stated in Rule 12.3(a), the relief available to a defendant when the State provides an

untimely notice is a “reasonable continuance” of the proceedings. The Rule’s comments note

that if the State’s notice is untimely, “the defendant is entitled to a continuance to rechart a

course of action[,]” but “[i]f the defendant does not request a continuance, the written notice

shall be valid.” Tenn. R. Crim. P. 12.3(a), Advisory Comm’n Cmts.

The issue of an untimely notice was addressed by our Supreme Court in State v.

Livingston, 197 S.W.3d 710 (2006), wherein the State’s notice was filed pursuant to the

original indictment; no such notice was filed when the indictment was later amended. The

defendant in Livingston contended that the State’s failure to file a second notice with the

superseding indictment prevented enhancement of his sentence. Our Supreme Court

disagreed,stating that “perfect” notice of sentence enhancement is not required, only “some”

notice and noted that the defendant had knowledge of the original notice filing. Id. at 713,

715. Thus, the Court held that the defendant “had fair warning that the State intended to seek

enhanced punishment” for his crimes and therefore, the “purpose” of section 40-35-202(a)

had been “accomplished.” Id. at 716.

The Court’s opinion in Livingston also noted its earlier decision in State v.

Stephenson, 752 S.W.2d 80 (1988), wherein it held that an untimely notice was not

“ineffective 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 under Rule 12.3(a).” Id. at 81. The Court further noted

that “[i]n the absence of a motion for continuance, in our opinion, any objection to the

delayed notice by the State ordinarily should be deemed to have been waived.” Id.

In the present case, the State announced at the guilty plea hearing that the Defendant

was “possibly a career offender” and stated its intention to file a notice seeking an enhanced

sentencing range. The trial court made clear to the Defendant that his prior convictions

might place him in a higher sentencing range. The Defendant acknowledged that he

understood this possibility. Written notice of the State’s intention was filed after the guilty

plea and before the sentencing hearing, providing the Defendant with a specific list of the

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prior convictions the State sought to use to enhance his sentence.

We acknowledge our Supreme Court’s admonishment that “good practice requiresthat

the notice be filed in accordance with the procedural rule.” Stephenson, 752 S.W.2d at 81.

Based upon these facts, however, we conclude that the Defendant was given sufficient notice

of his sentencing enhancement possibilities, both at the guilty plea hearing and in the written

notice filed ten days before the sentencing hearing. Accordingly, we conclude that the

State’s notice was valid. Id.

As to the Defendant’s challenge to the accuracy of the dates of his prior offenses listed

on the judgments, the Defendant’s criminal history included seven prior felony convictions

for offenses committed on seven separate dates. Therefore, the career offender sentencing

classification was proper. The Defendant is not entitled to relief on this issue.

B. Consecutive Sentencing

The Defendant next contends that the trial court erred when it ordered consecutive

sentencing. The Defendant claims that he entered his guilty plea “under the false

impression” that consecutive sentencing was not “mandated by statute.” The State counters

that the Defendant’s extensive criminal history warranted consecutive sentences. We agree

with the State.

Consecutive sentencing is a matter addressed to the sound discretion of the trial court.

State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984). A trial court may order

multiple sentences to run consecutively if it finds, by a preponderance of the evidence, that

at least one of the seven statutory factors exists. T.C.A. § 40-35-115(b)(1)-(7) (2014). In

addition to these criteria, consecutive sentencing issubject to the generalsentencing principle

that the length of a sentence should be “justly deserved in relation to the seriousness of the

offense” and “no greater than that deserved for the offense committed.” T.C.A. § 40-35-

102(1), -103(2) (2014); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

In this case, the trial court found two consecutive sentencing factors applicable: factor

(2), that the Defendant’s record of criminal activity was extensive; and factor (6), that the

Defendant was being sentenced for an offense committed while he was on probation. T.C.A.

§ 40-35-115 (2), (6) (2014). The trial court stated that it was clear from the evidence that the

Defendant was on probation when he committed this offense, in support of factor (6). In

discussing the applicability of the factor (2) to the Defendant, the trial court stated the

following:

The Defendant is an offender whose record of criminal activity is

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extensive. That does exist. When I counted up the total number of actual

convictions, [I counted] twenty-two.

So I did look at these other statutes. You know, I must look at

sentencing alternatives under [T.C.A. §] 40-35-114. They’re not applicable

because [the Defendant] is now [serving] an eight year sentence currently, is

my understanding from Cocke County. The sentencing considerations under

[T.C.A. §] 40-35-103, the Court did consider all of those, and there’s one

particularly I’d like to point out and that is [T.C.A. §] 40-35-103(1)(c), which

states, measureslessrestrictive than confinement have frequently been applied

or recently been applied unsuccessfully to the Defendant.

We conclude that the evidence supports the trial court’s imposition of consecutive

sentences. The evidence at the sentencing hearing supports the trial court’s determination

that the Defendant was serving a probation sentence at the time of this offense. Further, the

certified copies of the Defendant’s prior convictions support a finding that the Defendant has

an extensive history of criminal activity. The Defendant is not entitled to relief on this issue.

C. Manner of Service

The Defendant lastly contends that the trial court erred when it ordered him to serve

his sentence in confinement. He contends that this punishment for “writing one worthless

check” is “much greater than that deserved for the offense committed.” The State responds

that the trial court did not abuse its discretion when it ordered the Defendant to serve his

sentence in confinement. We agree with the State.

We reiterate that the manner of service of a sentence ordered by the trial court is

presumptively reasonable unless the Defendant can demonstrate that the sentence was

improper. See Pollard, 432 S.W.3d at 860; Ashby, 823 S.W.2d at 169. The trial court stated

its reasons for ordering the Defendant to serve his sentence rather than granting him

probation. That the Defendant had been given multiple chances with alternative sentencing

that proved unsuccessful. The Defendant’s conviction follows a long list of prior offenses

involving similar behavior. Accordingly, we conclude that the trial court did not abuse its

discretion when it ordered the Defendant to serve his sentence in confinement. The

Defendant is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the trial

court’s judgment.

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________________________________

ROBERT W. WEDEMEYER, JUDGE

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