State of Tennessee v. Kevin Patterson AKA John O'Keefe Varner AKA John O'Keefe Kitchen , 538 S.W.3d 431 ( 2017 )

11/30/2017
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 11, 2017 Session
STATE OF TENNESSEE v. KEVIN PATTERSON AKA JOHN O’KEEFE
VARNER AKA JOHN O’KEEFE KITCHEN
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Coffee County
No. 41631F Walter C. Kurtz, Sp. Judge, sitting by designation
___________________________________
No. M2015-02375-SC-R11-CD
___________________________________
We granted this appeal to determine whether deficiencies in the State’s timely filed
notice of intent to sentence the defendant to life imprisonment without the possibility of
parole as a repeat violent offender entitle the defendant to relief via the plain error
doctrine. We conclude that, although imperfect, the timely filed notice fairly informed
the defendant of the State’s intent to seek enhanced sentencing and triggered the
defendant’s duty to inquire into the errors and omissions. Furthermore, the defendant has
failed to establish that the deficiencies in the notice adversely affected his substantial
rights—a necessary criterion for obtaining relief via the plain error doctrine.
Accordingly, we reverse in part the Court of Criminal Appeals’ judgment, insofar as it set
aside the defendant’s sentence of life without parole and remanded to the trial court for
resentencing, and we reinstate the judgment of the trial court in all respects.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Reversed in Part; Judgment of the Trial Court Reinstated
CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS,
C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Brent C. Cherry, Senior Counsel; and Craig Northcott, District Attorney
General, for the appellant, State of Tennessee.
John E. Nicoll, District Public Defender (on appeal); and Daniel Marshall, Nashville,
Tennessee (at trial), for the appellee, Kevin Patterson aka John O’Keefe Varner aka John
O’Keefe Kitchen.
OPINION
The only issue in this appeal is the sufficiency of the notice the State provided to
the defendant, John O’Keefe Varner,1 of its intent to sentence him as a repeat violent
offender to life imprisonment without the possibility of parole under the three strikes law.
Tenn. Code Ann. § 40-35-120(i)(2) (2014 & 2017 Supp.). Therefore, we forgo a detailed
recitation of the proof offered at trial to support the defendant’s convictions of attempted
second-degree murder, aggravated assault, and being a felon in possession of a firearm
and recite the following summation for context.
The victims, Brandi Frazier and Scott Wilfong, visited their friend Donald Brewer
in early February 2013. Mr. Brewer lived near the defendant, and the defendant’s
girlfriend drove Ms. Frazier to a liquor store in the defendant’s truck. When they
returned, the defendant pulled his girlfriend from the vehicle by her hair and struck her.
Ms. Frazier got out of the truck, shouting and cursing at the defendant. Ms. Frazier and
Mr. Wilfong had never met the defendant before that day. The defendant approached
Ms. Frazier in an aggressive manner with his arm raised, and she hit him twice on the
side of his head with a bottle of rum to stop his advance. Mr. Wilfong then intervened,
and he and the defendant exchanged angry words, but the altercation ended when Mr.
Wilfong and Ms. Frazier returned to their friend’s nearby home. The entire incident
lasted only five or ten minutes, and Mr. Wilfong gave it little thought afterwards,
believing everything had calmed.
Mr. Wilfong’s belief proved incorrect. On February 9, 2013, Mr. Wilfong and
Ms. Frazier visited the home of J.D. Martin and Heather Gilbert to talk about ways to
raise bail money for their mutual friend, Mr. Brewer, who had been arrested and jailed.
During their visit, Mr. Brewer’s estranged wife, Natalie Brewer, and the defendant
arrived uninvited at the home. Ms. Brewer, a longtime friend of Ms. Gilbert, entered the
home without invitation, approached Ms. Frazier, who had called Ms. Brewer a snitch
earlier in the day, and began swearing and behaving aggressively.
According to Mr. Wilfong’s testimony, the defendant remained outside but
knocked on the door and told Mr. Wilfong they had “unfinished business.” Interpreting
the comment as a reference to the earlier argument, Mr. Wilfong went outside “prepared
to fight,” believing from the defendant’s tone that they “were probably about to be in a
1
The Coffee County Grand Jury returned an indictment in March 2013 that listed the defendant’s
name as John O’Keefe Varner. A superseding indictment filed in April 2015 referred to the defendant as
“Kevin Patterson AKA John O’Keefe Varner AKA John O’Keefe Kitchen.” The “Notice of Prior
Convictions” the State filed January 1, 2015, referred to the defendant as “John O’Keefe Varner.”
Throughout the trial, the defendant was referred to as “John O’Keefe Varner,” and that is how his name is
listed on the record on appeal. Thus, for purposes of clarity and consistency, we also identify the
defendant as John O’Keefe Varner.
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confrontation.” Once outside, Mr. Wilfong, who was unarmed, saw that the defendant
had a handgun. Inexplicably, Mr. Wilfong declared 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.” The bullet struck Mr. Wilfong in the right hip. Both men “froze
for a split second,” but when the defendant raised and aimed the gun a second time, Mr.
Wilfong ran into the nearby woods.
Hearing the gunshot, Ms. Frazier ran outside and saw the defendant standing and
pointing the gun toward the woods. When the defendant turned the gun on her, Ms.
Frazier retreated toward Ms. Gilbert’s vehicle, which was parked nearby. The defendant
lowered his weapon and ran past Ms. Frazier, striking her in the face as he passed with
enough force to knock her over the hood of Ms. Gilbert’s car. The defendant kept
running, got into his truck, where Ms. Brewer was already waiting, and drove away from
the scene.
The victims called 911 not long after the incident, but the police were unable to
locate the scene that evening and did not investigate until the next day. In March 2013,
the Coffee County Grand Jury indicted the defendant with attempted first-degree murder
of Mr. Wilfong and aggravated assault of Ms. Frazier. However, the defendant fled to
Las Vegas, Nevada, after the incident, and he was not apprehended until a year and a half
later.
After his apprehension, on January 1, 2015, the State filed a document titled
“Notice of Prior Convictions,” which stated:
The State of Tennessee by and through the Office of the District
Attorney General, Fourteenth Judicial District, pursuant to [R]ule 609(a)(3)
of the Tennessee Rules of Evidence and T.C.A. § 40-35-202(a) to give the
defendant notice 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. The State of Tennessee 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:
Date Conviction County, State
12/28/1985 THEFT CALIFORNIA
02/10/1987 POSS OF FIREARM CALIFORNIA
03/20/1987 CONSPIRACY CALIFORNIA
07/04/1990 AGG ASSAULT SHELBY CO., TN
01/24/1992 FAC 2ND DEGREE MURDER SHELBY CO., TN
08/26/1993 POSSESSION OF WEAPON SHELBY CO., TN
05/03/1994 2ND DEGREE MURDER SHELBY CO., TN
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In April 2015, a superseding indictment was issued charging the defendant with
attempted first-degree murder of Mr. Wilfong, aggravated assault of Ms. Frazier, and
being a felon in possession of a firearm. The defendant’s trial occurred July 14-16, 2015.
At the beginning of the trial, the parties entered a written stipulation that the defendant
had been convicted in Haywood County prior to February 2013 of a felony involving the
use of force, violence, and a deadly weapon, and that the conviction prohibited the
defendant from possessing a firearm. The State relied upon this stipulation to prove the
charge that the defendant was a felon in possession of a firearm. The defendant was
convicted of attempted second-degree murder, aggravated assault, and being a felon in
possession of a firearm.
At a separate sentencing hearing on September 23, 2015, the prosecution entered
as exhibits certified copies of judgments reflecting the defendant’s April 20, 1994
conviction of second-degree murder in Haywood County and his January 14, 1992
conviction of facilitation of second-degree murder in Shelby County. The trial court
stated its understanding that the defense “had no objection to the accuracy of the
[defendant’s] prior criminal record” as set out in the pre-sentence report. Defense
counsel responded: “That is correct, Your Honor.” However, defense counsel argued that
the defendant should not be sentenced as a repeat violent felony offender because his
prior convictions preceded the July 1, 1994, effective date of the repeat violent felony
offender law. The trial court rejected this argument but noted that mandatory sentencing
laws have been criticized as unwise public policy and commented that the criticism may
be well-taken. Nevertheless, the trial court ruled that the “so-called three strikes” or
repeat violent felony offender law is “on the books” and is not limited to offenses
committed after its July 1, 1994 effective date. As for the defendant, the trial court
pointed out that he unquestionably had prior and separate convictions of facilitation to
commit second-degree murder and second-degree murder. As a result, the trial court
ruled it had “no choice” under the repeat violent offender statute but to sentence the
defendant to imprisonment for life without the possibility of parole on his conviction of
attempted second-degree murder of Mr. Wilfong. The trial court imposed a five-year
sentence on each of the defendant’s other convictions and ordered these sentences served
concurrently with the sentence of life without the possibility of parole.
The defendant appealed, alleging four trial errors but not challenging his
sentences. State v. Patterson, No. M2015-02375-CCA-R3-CD, 2016 WL 7131253, at *1
(Tenn. Crim. App. Dec. 7, 2016), perm. app. granted (Tenn. Apr. 12, 2017). The Court
of Criminal Appeals unanimously rejected the alleged trial errors and affirmed the
defendant’s convictions. Id. Nevertheless, two judges of the Court of Criminal Appeals
sua sponte concluded that the State’s notice of its intent to sentence the defendant as a
repeat violent offender under Tennessee Code Annotated section 40-35-120(i)(2) failed to
describe sufficiently the nature of the defendant’s prior qualifying convictions and failed
to list the dates of the separate periods of incarceration on the convictions as required by
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the statute. Patterson, 2016 WL 7131253, at *9. Because of these deficiencies, the
majority of the Court of Criminal Appeals Panel concluded that “the document filed by
the State ‘did not qualify as notice pursuant to the repeat violent offender statute.’” Id.
(quoting State v. Cooper, 321 S.W.3d 501, 506 (Tenn. 2010)). As a result, the majority
set aside the defendant’s sentence of life imprisonment without the possibility of parole
and remanded to the trial court for resentencing. Id. One judge dissented from this
conclusion and would have held that the State’s notice substantially complied with the
repeat violent felony offender notice statute and that the defendant failed to show
prejudice resulting from any noncompliance. Patterson, 2016 WL 7131253, at *11
(Easter, J., concurring in part and dissenting in part). We granted the State’s application
for permission to appeal.
II. Standard of Review
The issue in this appeal is whether the Court of Criminal Appeals erred in
concluding that deficiencies in the State’s notice of its intent to sentence the defendant as
a repeat violent offender constitute plain error requiring reversal. This is a question of
law, to which de novo review applies. State v. Knowles, 470 S.W.3d 416, 423 (Tenn.
2015) (“Whether the plain error doctrine has been satisfied is a question of law which we
review de novo.”); Cooper, 321 S.W.3d at 506 (stating that de novo review applies to the
Court of Criminal Appeals’ determination of whether plain error has been established);
State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006) (applying de novo review when
reviewing the sufficiency of the notice of enhanced sentencing).
A defendant bears the burden of persuading an appellate court that plain error
entitles him to relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (citing United
States v. Olano, 507 U.S. 725, 734 (1993)). An appellate court will grant relief under the
plain error doctrine only if all of the following five criteria are satisfied: (1) the record
clearly establishes what occurred in the trial court; (2) the error amounted to a breach of a
clear and unequivocal rule of law; (3) the error adversely affected a substantial right of
the defendant; (4) the error was not waived for tactical purposes; and (5) consideration of
the error is necessary to do substantial justice. State v. Smith, 24 S.W.3d 274, 282-83
(Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.
1994)). If a defendant fails to establish any one of these criteria, the defendant may not
obtain relief via the plain error doctrine. Knowles, 470 S.W.3d at 425. Furthermore, an
appellate court need not consider all five factors if the record shows that one of the
factors cannot be established. Id.
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III. Analysis
A. Notice Requirements for Enhanced Sentences
Tennessee’s criminal sentencing statutes establish three sentencing ranges—
Ranges I, II, and III—and six offender classifications—especially mitigated offender,
standard offender, multiple offender, persistent offender, career offender, and repeat
violent offender. Tenn. Code Ann. §§ 40-35-105 to -112 (2014 and 2017 Supp.). The
number and nature of a defendant’s prior convictions determine offender classification,
and offender classification determines the applicable sentencing range. Tenn. Code Ann.
§§ 40-35-106(a)-(b), -107(a)-(b), -108(a)-(b), -109(a)(1), -120(a)-(f). Standard offenders
receive Range I sentences, multiple, persistent, and career offenders receive lengthier
Range II and III sentences, and repeat violent offenders are subject to sentences of life
imprisonment without the possibility of parole. Tenn. Code Ann. §§ 40-35-106(c);
-107(c); -108(c); Tenn. Code Ann. § 40-35-120(g). Thus, multiple, persistent, career, and
repeat violent offenders are subject to enhanced sentences. Cooper, 321 S.W.3d at 507.
If the State intends to seek an enhanced sentence for a defendant in any of these
offender classifications, it must provide the defendant with notice of its intent to do so.
See Tenn. Code Ann. § 40-35-202(a) (2014) (addressing the notice required when the
State intends to sentence a defendant as a multiple, persistent, or career offender); Tenn.
Code Ann. § 40-35-120(i)(2)-(3) (describing the notice that must be provided when the
State intends to sentence a defendant as a repeat violent offender). Although this appeal
involves only the statutory notice requirement for enhanced sentencing as a repeat violent
offender, we begin our analysis with the statutory notice requirement for enhanced
sentencing as a multiple, persistent, or career offender. We do so because the language of
these statutory notice requirements is similar. Cooper, 321 S.W.3d at 507. Moreover, the
statutory notice requirement for multiple, persistent, and career offenders has been in
effect in substantially the same form since 1982. David Demar Ayliffe, Comment,
Criminal Procedure—Tennessee v. Carter: The Strict Requirement of Notice Under
Tennessee’s Recidivist Sentencing Statutes, 35 U. Mem. L. Rev. 145, 160-164 (2004)
(providing a detailed discussion of the history and development of the statutory notice
requirements in Tennessee). As a result, Tennessee’s appellate courts “have addressed
many questions involving subtleties of the statute,” Livingston, 197 S.W.3d at 712, and
these decisions are instructive and supply the necessary context for our consideration of
the statutory notice requirement for repeat violent offenders.
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B. Multiple, Persistent, or Career Offender Notice Requirement
The statute requiring the State to give notice of its intent to seek enhanced
sentencing for a defendant as a multiple, persistent, or career provides:
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; provided,
that notice may be waived by the defendant in writing with the consent of
the district attorney general and the court accepting the plea. The
statement, which shall not be made known to the 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 convictions.
Tenn. Code Ann. § 40-35-202(a); see also Tenn. R. Crim. P. 12.3(a) (“If the district
attorney general intends to seek an enhanced punishment as a multiple, persistent, or
career offender, the district attorney general shall file notice of this intention not less than
ten (10) days before trial. If the notice is untimely, the trial judge shall grant the
defendant, on motion, a reasonable continuance of the trial.”). This statutory notice
requirement provides defendants with fair notice of their exposure to enhanced
sentencing,2 orders plea-bargaining, enables defendants to make informed decisions
before pleading guilty, aids defendants in developing trial strategy and preparing for
sentencing hearings, and assists defendants “in evaluating the risks and charting a course
of action before trial.” State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990). With regard
to the form of the notice, this Court has commented that “the practice of ‘embedding’
information inside an unrelated document is problematic” and has instructed that “the
filing of separate documents properly captioned is to be preferred.” State v. Benham, 113
S.W.3d 702, 705 (Tenn. 2003).
With regard to the content of the notice, this Court has charted a middle ground.
Strict compliance has not been required with the matters enumerated in the statute, even
though the statute uses “shall,” but a notice that fails to provide any of the statutorily
required relevant information is ineffective and cannot support imposition of an enhanced
sentence. Adams, 788 S.W.2d at 559. Moreover, this Court has often emphasized that
the responsibility for asserting “the appropriate sentencing status in the first instance” lies
with the State and that the State “may not shift these burdens to an accused by filing what
2
See Oyler v. Boles, 368 U.S. 448, 452 (1962) (stating that due process requires a state to
provide a defendant with “reasonable notice and an opportunity to be heard” when the State seeks to
impose an enhanced sentence based on recidivism, “even if due process does not require that notice be
given prior to the trial on the substantive offense”).
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is essentially an empty notice.” Id. But where the State substantially complies “an
accused has a duty to inquire about an ambiguous or incomplete notice and must show
prejudice to obtain relief.” Id. (“Where an ambiguity or contradiction appears on the face
of the notice, defendant has a duty to inquire further.”); see also State v. Debro, 787
S.W.2d 932, 934 (Tenn. Crim. App. 1989), (holding that to obtain relief based on a
content-defective notice a defendant must show prejudice). “Generally, if notice is filed
late or is filed timely but is otherwise defective, the defendant must show prejudice
before the notice will be rendered ineffective.” State v. Carter, 121 S.W.3d 579, 585
(Tenn. 2003). “In other words, what is required is ‘fair’ notice, not ‘perfect’ notice.”
Livingston, 197 S.W.3d at 713 (citing Adams, 788 S.W.2d at 559; State v. Taylor, 63
S.W.3d 400, 413 (Tenn. Crim. App. 2001)). On the other hand, this Court has “strictly
applied” the statutory requirement “that some notice meeting the minimal requirements of
the statute be given.” Id. Thus, in Adams, this Court declined to uphold the enhanced
sentence because the purported notice the State gave prior to trial failed to meet the
minimal requirements of the statute. 788 S.W.2d at 559.3 Likewise, in a subsequent
case, this Court held that the State failed to provide pretrial notice of its intent to seek
enhanced sentencing by attaching a copy of the defendant’s prior criminal record to its
response to the defendant’s discovery request. Benham, 113 S.W.3d at 705.
C. Repeat Violent Offender Notice Requirement
Having reviewed the principles articulated by courts interpreting the statutory
notice requirement for enhanced sentencing as a multiple, persistent, or career offender,
we turn to the statutory notice requirement for repeat violent offenders. The statutes
relating to the repeat violent offender classification were enacted in 1994. 1994 Tenn.
Pub. Acts 994. A defendant qualifies for sentencing as a repeat violent offender by being
convicted after July 1, 1994, of one of the violent felonies listed in the statute, Tenn.
Code Ann. § 40-35-120(a)(1), and by having been previously convicted of one or more of
the offenses enumerated in the statute for which the defendant served separate periods of
incarceration, id. § 40-35-120(a)(2)-(6), -120(e). If a defendant has a sufficient number
of prior convictions to qualify for sentencing as a repeat violent offender, a trial judge
3
The notice filed in Adams was deemed ineffective because it:
should have stated that Adams had committed an especially aggravated offense and that
he was on probation from a felony conviction at the time of the offense. It should have
given details of the former judgment. It contained none of this information. Not only
was it wholly inadequate to advise that a Range II sentence was sought, it was positively
misleading, as it dealt exclusively with matters relevant to another phase of sentencing.
788 S.W.2d at 559.
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must reject any plea bargain that does not recommend sentencing the defendant as a
repeat violent offender. Tenn. Code Ann. § 40-35-120(f). However, the district attorney
may amend the indictment to an offense that does not qualify the defendant for
sentencing as a repeat violent offender. Id. Again, the mandatory sentence for a repeat
violent offender is life imprisonment without the possibility of parole. Tenn. Code Ann.
§ 40-35-120(g). Before imposing this sentence, the trial court must find, beyond a
reasonable doubt, that the defendant meets the requirements to be declared a repeat
violent offender. Id.
The statute requiring the State to give notice of its intent to seek enhanced
sentencing as a repeat violent offender provides:
(2) 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.
(3) Failure to comply with this subsection (i) does not require release
of a person from custody or a dismissal of charges.
Tenn. Code Ann. § 40-35-120(i)(2)-(3). This Court has considered this statutory notice
requirement only once—seven years ago in Cooper—and Cooper formed the basis of the
Court of Criminal Appeals’ decision granting the defendant relief. In this Court, the
defendant argues that the Court of Criminal Appeals properly concluded that Cooper
entitles him to relief. The State responds that Cooper does not apply here. According to
the State, Cooper stands only for the proposition that if the State fails to give any notice
at all prior to trial, it may not seek enhanced sentencing as a repeat violent offender. We
agree with the State’s reading of Cooper.
In Cooper, the State filed a document prior to trial which was titled “Notice of
Intention to Use Prior Bad Acts for Impeachment and Enhancement of Sentence.” 321
S.W.3d at 503. The document listed “Sodomy (felony) 3 counts” in circuit court in
Klamath Falls, Oregon as Mr. Cooper’s prior criminal record. Id. The document did not
refer at all to the State’s intent to sentence Mr. Cooper as a repeat violent offender. Id.
Mr. Cooper’s trial occurred on June 8 and 9, 2006, and a jury convicted Mr. Cooper of
aggravated rape. Id. at 503-04. About two weeks after his trial, on June 21, 2006, the
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State filed another document, titled “Sentencing Position,” in which the State asserted
that Mr. Cooper’s conviction of aggravated rape justified classifying him as a “repeat
violent offender” and required imposing a sentence of imprisonment for life without the
possibility of parole. Id. at 504. The State based these assertions on the “Notice” it filed
prior to Mr. Cooper’s trial listing his prior sodomy convictions in Oregon, claiming that
this notice was sufficient to notify Mr. Cooper that the State intended to use the
convictions for sentencing purposes. Id.
Mr. Cooper did not object to the timing of the State’s notice, and although the trial
court raised the issue sua sponte at the sentencing hearing, the trial court concluded that
Mr. Cooper had failed to show prejudice by the deficiencies in the State’s pretrial
“Notice.” Id. Thus, the trial court sentenced Mr. Cooper as a repeat violent offender to
life without the possibility of parole. Id. Mr. Cooper challenged the State’s notice in his
amended motion for new trial but failed to raise the issue on appeal. Id. Nevertheless,
the Court of Criminal Appeals sua sponte considered the notice issue but concluded that
it did not amount to plain error because Mr. Cooper had failed to establish prejudice. Id.
The Court of Criminal Appeals surmised that Mr. Cooper might possibly be able to
establish prejudice in a post-conviction proceeding by showing that he had been unaware
of the State’s intent to sentence him as a repeat violent offender when he rejected the six-
year offer made during plea negotiations. Id. This Court thereafter granted Mr. Cooper’s
application for permission to appeal, in which he asserted, among other things, that the
Court of Criminal Appeals erred by failing to grant him relief via the plain error doctrine
based on the notice issue. Id. at 504-05.
In resolving the notice issue in Cooper, this Court began by remarking upon the
similarity of the language of the statutory notice requirement for enhanced sentencing as
a repeat violent offender and that of the statutory notice requirement for enhanced
sentencing as a multiple, persistent, or career offender. Cooper, 321 S.W.3d at 507. The
Cooper Court next recited with approval the principles, discussed hereinabove, which
Tennessee courts had articulated and applied when interpreting the statutory notice
requirement for enhanced sentencing as a multiple, persistent, or career offender. Id.
Next, the Cooper Court reviewed another decision involving the notice required when the
State seeks the death penalty or life imprisonment without the possibility of parole for
first degree murder. Id. (discussing State v. Gilliland, 22 S.W.3d 266 (Tenn. 2000)).
In Gilliland, the State filed its notice of intent to seek the death penalty prior to
trial but then withdrew the notice. Gilliland, 22 S.W.3d at 275-76. The State did not file
a separate notice of intent to seek life imprisonment without the possibility of parole, but
after the defendant was tried and convicted of felony first-degree murder, the State
announced its intention to seek that penalty. Id.; see also Cooper, 321 S.W.3d at 507
(discussing Gilliland). The Gilliland Court held that the State’s withdrawal of its notice
of intent to seek the death penalty also amounted to a withdrawal of its notice of intent to
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seek imprisonment for life without the possibility of parole. Id. at 276. Citing the
importance of intangible considerations such as plea negotiations, the Gilliland Court
declared that “‘the [S]tate is always required to give notice before trial,’” Cooper, 321
S.W.3d at 507 (quoting Gilliland, 22 S.W.3d at 276), and “declined to hold that a lack of
actual prejudice excused” the State’s failure to provide notice before trial. Id. (citing
Gilliland, 22 S.W.3d at 276). The Gilliland Court modified the defendant’s sentence to
life imprisonment, citing a statute requiring imposition of a life sentence for first-degree
murder if the State failed to file a notice of intent to seek the death penalty or a sentence
of life imprisonment without the possibility of parole. Gilliland, 22 S.W.3d at 276 (citing
Tenn. Code Ann. § 39-13-208(c)); see also Cooper, 321 S.W.3d at 507 (discussing
Gilliland).
The Cooper Court recognized that the repeat violent offender statute does not
mandate any particular remedy or require imposition of any particular sentence where the
State fails entirely to file pretrial notice of its intent to seek enhanced sentencing as a
repeat violent offender. Cooper, 321 S.W.3d at 507. Nevertheless, citing “the severity of
the sentence” for repeat violent offenders, the Cooper Court concluded that adopting a
similar remedy was appropriate and held “that the sentence of imprisonment for life
without the possibility of parole was not authorized because the only substantially
compliant notice [in Mr. Cooper’s case] was filed after trial and therefore was
ineffective.” Id. at 507-08 (emphasis added). As the foregoing examination reveals, the
Court in Cooper did not cite deficiencies in the content of the State’s notice as a basis for
setting aside the repeat violent offender sentence. Rather, it cited the State’s failure to
provide any pretrial notice of its intent to seek enhanced sentencing as a repeat violent
offender. Id. at 508. As this Court had done previously when interpreting the statutory
notice requirement for enhanced sentencing as a multiple, persistent, or career offender,
the Cooper Court strictly applied the statute mandating that the State give “some notice
meeting the minimal requirements” before trial. Livingston, 197 S.W.3d at 713.
Applying these principles to the facts of this case, we conclude that the holding of
Cooper does not control the resolution of this appeal, although its discussion of the
statutory notice requirement for repeat violent offenders certainly is instructive. Unlike
Cooper, in this case the State unquestionably provided timely pretrial notice of its intent
to seek enhanced sentencing as a repeat violent offender. Therefore, the question
presented here in an indirect way via the plain error doctrine is whether the notice
provided met the minimal requirements. Although Cooper did not require this Court to
determine the sufficiency of the notice given, the Cooper Court recited with approval the
principles articulated in prior cases for evaluating the sufficiency of the notice the State
had provided of its intent to seek enhanced sentencing as a multiple, persistent, or career
offender. 321 S.W.3d at 507. Since Cooper, the Court of Criminal Appeals has applied
these same principles to evaluate the sufficiency of the notice provided for enhanced
sentencing as a repeat violent offender. See, e.g., State v. Thompson, 36 S.W.3d 102,
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115-16 (Tenn. Crim. App. 2000) (relying on prior “decisions with respect to other
statutory requirements of notice in sentencing matters” and holding that the State’s failure
to file its notice forty-five days before trial did not preclude it from seeking to sentence
the defendant as a repeat violent offender because the defendant had articulated no
prejudice from the untimely filing and the defendant could have obtained a continuance);
State v. Boyd, No. W2010-01513-CCA-R3-CD, 2011 WL 2586811, at *6 (Tenn. Crim.
App. July 1, 2011) (quoting Adams, 788 S.W.2d at 559) (holding that when the notice
lacks the dates of incarceration for the qualifying prior convictions, the notice is
substantially compliant and a defendant “‘must show prejudice to obtain relief’”).
We agree that the principles developed in these prior decisions addressing the
statutory notice requirement for multiple, persistent, or career offenders generally provide
the analysis that courts should apply when resolving questions arising under the statutory
notice requirement for repeat violent offenders. As we recognized in Cooper, the
language of these statutory notice requirements is similar, 321 S.W.3d at 507, and these
statutory notice requirements serve similar purposes. See Adams, 788 S.W.2d at 559
(discussing the purposes served by the multiple, persistent and career notice
requirement). Courts need not re-invent the analytical wheel for issues arising under the
statutory notice requirement for repeat violent offenders and should apply the following
principles.
The State bears the responsibility for providing notice of enhanced sentencing as a
repeat violent offender and must always endeavor to comply fully with the statute, both
in timing and content. Id. The State must provide some notice prior to trial. If the State
fails entirely to provide notice prior to trial, the State is precluded from seeking enhanced
sentencing as a repeat violent offender, and the defendant need not show prejudice to
obtain this result. Cooper, 321 S.W.3d at 508. As for form, the better practice is for the
State to provide notice by a separate, properly captioned document and not to include the
notice in a document addressing several subjects. Benham, 113 S.W.3d at 705.
Nevertheless, the statute does not prescribe a particular form, and we also decline to
mandate a particular form. The form of the notice alone will almost never be a sufficient
basis for precluding the State from seeking enhanced sentencing. Id. If notice is
provided before trial, but notice is not timely filed, the defendant is entitled to a
continuance “so the defendant will have forty-five (45) days between receipt of the notice
and trial.” Tenn. Code Ann. § 40-35-120(i)(2). Notice of enhanced sentencing need not
be perfect, but it must be fair. Livingston, 197 S.W.3d at 713. A notice that fails to
provide the defendant with any of the statutorily required relevant information is not fair
notice and is insufficient. Adams, 788 S.W.2d at 559. On the other hand, if the content
of the State’s notice substantially complies with the statutory requirements, “an accused
has a duty to inquire about an ambiguous or incomplete notice and must show prejudice
to obtain relief.” Id. (“Where an ambiguity or contradiction appears on the face of the
notice, defendant has a duty to inquire further.”). If the notice is filed late but still filed
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prior to trial, or the notice is timely filed but is in some other way defective, the notice
remains effective for purposes of enhanced sentencing, unless the defendant shows
prejudice. Carter, 121 S.W.3d at 585.
Here, the State timely provided the defendant with notice of its intent to seek
enhanced sentencing as a repeat violent offender. The notice was provided more than six
months prior to trial. Although the document by which notice was provided advised the
defendant of several purposes for which his prior convictions would be used, the
document clearly and unambiguously informed the defendant of the State’s intent to seek
enhanced sentencing as a repeat violent offender.4 As the majority in the Court of
Criminal Appeals correctly recognized, however, the notice failed to identify specifically
which of the defendant’s listed prior convictions qualified him for sentencing as a repeat
violent offender. See Tenn. Code Ann. § 40-35-120(i)(2) (requiring the notice to “set
forth the nature of the” prior qualifying convictions). As the Court of Criminal Appeals
majority also correctly noted, the notice failed to list the dates of the separate periods of
incarceration the defendant had served for the qualifying convictions. Tenn. Code Ann. §
40-35-120(i)(2) (stating that the notice “shall set forth the dates of the prior periods of
incarceration”).
Furthermore, as the State concedes in its brief to this Court, the notice included
inaccurate information about the date and location of the second-degree murder
conviction and the date of the facilitation to commit second-degree murder conviction.5
Despite these errors and omissions in the State’s notice, we agree with the dissenting
judge in the Court of Criminal Appeals that the notice, albeit imperfect, was sufficient to
trigger the defendant’s duty to inquire into the omitted and incorrect information.
Adams, 788 S.W.2d at 559. The defendant simply failed to make any such inquiry. To
the contrary, defense counsel expressly indicated at the beginning of the sentencing
hearing that the defendant had no objection to the accuracy of his prior criminal record as
listed in the presentence report. Having conceded the accuracy of his prior criminal
record at the sentencing hearing, the defendant has failed to establish prejudice resulting
from the omitted and inaccurate information. Indeed, the defendant has not even
4
Again, we reiterate that the preferred practice is for the district attorney to provide notice by a
separate, properly captioned document that complies fully and completely with all statutory requirements.
This type of notice will ensure that the defendant receives fair warning of his exposure to enhanced
sentencing and will obviate the need for protracted litigation over the sufficiency of the notice.
5
For the defendant’s second-degree murder conviction, the notice listed the date as May 3, 1994,
and the county of origin as Shelby. But at the defendant’s sentencing hearing, the State relied upon and
introduced without objection an April 20, 1994 judgment of conviction for second-degree murder that
originated in Haywood County. Moreover, the notice listed the date of the defendant’s facilitation of
second-degree murder as January 24, 1992, but at the sentencing hearing the State introduced without
objection a judgment of January 14, 1992, for facilitation of second-degree murder.
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attempted to establish prejudice. He did not challenge his sentence on appeal to the Court
of Criminal Appeal. In this Court, the defendant argues that the State should be
precluded from seeking enhanced sentencing if it fails to comply strictly with the
statutory notice requirement. We decline to adopt such a drastic remedy where the
statute itself does not expressly do so. Although the State’s notice was not perfect, it
constituted fair notice and unambiguously advised the defendant of the State’s intent to
sentence him as a repeat violent offender. It is true that the notice listed several of the
defendant’s prior convictions without identifying the specific qualifying convictions or
the dates of his separate incarcerations on those convictions. Nevertheless, as the
dissenting judge of the Court of Criminal Appeals noted, the defendant could have
identified the predicate convictions for purposes of enhanced sentencing as a repeat
violent offender because only two of the listed convictions qualified as such. While we
certainly do not endorse the State’s failure to comply strictly with the statutory notice
requirement, the State provided sufficient notice to trigger the defendant’s duty to inquire
into the errors and omissions. The defendant has failed to establish that the omitted and
inaccurate information adversely affected a substantial right—one of the necessary
criterion to obtain relief via the plain error doctrine. Accordingly, we conclude that the
defendant is not entitled to relief via the plain error doctrine.
IV. Conclusion
For the reasons stated herein, the judgment of the Court of Criminal Appeals is
reversed insofar as it set aside the defendant’s enhanced sentence as a repeat violent
offender and remanded for resentencing, and the judgment of the trial court is reinstated
in all respects. It appearing the defendant is indigent, costs of this appeal are taxed to the
State of Tennessee, for which execution may issue if necessary.
_________________________________
CORNELIA A. CLARK, JUSTICE
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