        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 19, 2012

           STATE OF TENNESSEE v. LARRY THOMAS JOHNSON

                   Appeal from the Circuit Court for Bedford County
                          No. 17064    Robert Crigler, Judge




                No. M2010-00212-CCA-R3-CD - Filed February 8, 2012


The defendant, Larry Thomas Johnson, appeals his Bedford County Circuit Court guilty-
pleaded convictions of the sale of .5 grams or more of cocaine and possession with the intent
to sell .5 grams or more of cocaine, claiming that the trial court erred by imposing a Range
II sentence in the absence of any notice from the State that it would seek enhanced
punishment. Discerning no error, we affirm.

             Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and C AMILLE R. M CM ULLEN, JJ., joined.

James O. Martin, III, Nashville, Tennessee (on appeal); and Andrew Jackson Dearing, III,
District Public Defender; and Michael J. Collins, Assistant District Public Defender (at trial),
for the appellant, Larry Thomas Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               On October 18, 2010, the defendant pleaded guilty as charged to one count of
the sale of .5 grams or more of cocaine, one count of the delivery of .5 grams or more of
cocaine, one count of the possession with intent to sell .5 grams or more of cocaine, and one
count of the possession with intent to deliver .5 grams or more of cocaine. The trial court
merged the conviction of the delivery of cocaine with the conviction of the sale of cocaine
and the conviction of possession with intent to sell cocaine with the conviction of possession
with intent to deliver cocaine. According to the stipulation of facts provided by the State
during the plea colloquy, the defendant’s convictions for sale and delivery of cocaine
involved the October 28, 2009 controlled purchase of .7 grams of cocaine by a confidential
informant from the defendant. His convictions for possession of cocaine with intent to sell
or deliver were the result of officers’ finding 14.4 grams of cocaine at the defendant’s
residence during the execution of a search warrant. Following his arrest, the defendant
admitted that he had been selling cocaine from his residence.

               The trial court advised the defendant that the Class B felony convictions
exposed him to a sentence ranging between eight and 30 years and that his “actual sentence
. . . would depend upon the number of prior felony convictions” on his record. No mention
was made of the defendant’s appropriate sentencing range.

               At the January 10, 2011 sentencing hearing, the prosecutor moved to amend
the presentence report to reflect that, contrary to information in the report, the defendant’s
three prior felony convictions did not have the same offense date. The defendant refused to
agree to the amendment “considering that it changes the range.” The State then presented
the testimony of the preparer of the presentence report, Laura Prosser, who stated that upon
the State’s request, she confirmed via the Rutherford County Circuit Court Clerk that the
three convictions at issue did not share the same offense date. The defendant presented no
proof at the sentencing hearing. The trial court imposed Range II sentences of 17 years for
each of the merged convictions and ordered them to be served concurrently, for a total
effective sentence of 17 years’ incarceration.

              In this appeal, the defendant contends that the trial court erred by imposing a
Range II sentence because the State failed to file notice that it intended to seek enhanced
punishment as required by Tennessee Code Annotated section 40-35-202. The defendant
does not contend that he does not have the requisite number of prior convictions to qualify
as a Range II offender or that the sentence imposed is otherwise infirm. The State asserts
that the defendant waived the filing of notice.

                When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “is
conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which


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are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, the trial court was required to 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 §§ 40-35-113 and
              40-35-114;
              (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 wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

              Code section 40-35-202 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

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               courts of the convictions. The original or certified copy of the
               court record of any prior felony conviction, bearing the same
               name as that by which the defendant is charged in the primary
               offense, is prima facie evidence that the defendant named in the
               record is the same as the defendant before the court, and is
               prima facie evidence of the facts set out in the record.

T.C.A. § 40-35-202(a). “The purpose of the requirement is to provide the defendant with
‘fair notice’ that he is exposed to something other than standard sentencing. It is intended
to facilitate plea-bargaining, to inform plea decisions, and to assist with trial strategy.” State
v. Benham, 113 S.W.3d 702, 705 (Tenn. 2003) (quoting State v. Adams, 788 S.W.2d 557, 559
(Tenn. 1990)). “[T]he notice provision of Tenn. Code Ann. § 40-35-202(a) requires, at a
minimum, that the State file: (1) written notice, (2) clearly expressing the State’s intention
to seek sentencing outside of the standard offender range, (3) setting forth the nature of the
prior felony conviction, the dates of the convictions, and the identity of the courts of the
convictions.” State v. Livingston, 197 S.W.3d 710, 713-14 (Tenn. 2006) (footnote omitted).
“Failure to file any notice to seek enhanced sentencing pursuant to Tennessee Code
Annotated section 40-35-202(a) is grounds for re-sentencing as a Range I offender.” State
v. Cooper, 321 S.W.3d 501, 507 (Tenn. 2010) (citing State v. Pender, 687 S.W.2d 714,
719-20 (Tenn. Crim. App. 1984)).

               The statute provides, however, that the defendant may waive the filing of
written notice in writing with the consent of the State and the trial court. In this case, the
written petition to enter a plea of guilty signed by the defendant prior to the entry of his guilty
plea contains the following provision:

                       12. My attorney has explained enhanced sentencing to
               me, and I understand that if I am presently eligible for enhanced
               sentencing, I have a statutory right to a delay of ten (10) days
               after the State files a notice of intent to seek enhanced
               punishment before the Court accepts my plea of “GUILTY”. I
               hereby acknowledge that I am subject to enhanced sentencing as
               a multiple, persistent and/or career criminal, and give up my
               right to the filing of such notice and/or some or all of the ten
               (10) day waiting period before conviction.

Despite the generic language of the provision, it is in writing, signed by the defendant, and,
in our view, sufficient to waive the filing of notice seeking enhanced punishment.
Consequently, the State’s failure to file notice seeking enhanced punishment in this case did
not prevent the trial court from imposing a valid Range II sentence.

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Accordingly, the judgment of the trial court is affirmed.




                                    _________________________________
                                    JAMES CURWOOD WITT, JR., JUDGE




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