            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               Assigned on Briefs September 28, 2004

                 STATE OF TENNESSEE v. TORY NELSON NOCHO

                    Direct Appeal from the Criminal Court for Hamilton County
                              No. 231617    Stephen M. Bevil, Judge



                       No. E2003-01938-CCA-R3-CD - Filed November 1, 2004


The defendant, Tory Nelson Nocho, appeals his sentence of life without possibility of parole. The
defendant contends that the failure to set forth aggravating circumstances within the indictment is
a constitutional infirmity. The defendant secondly asserts error in that the State had not filed
statutory notice of intent to seek life without possibility of parole as to one victim prior to the entry
of the guilty plea. We affirm the sentence as imposed, but we remand the case for entry of corrected
judgments.

  Tenn. R. App. P. 3 Appeal as of Right; Affirmed and Remanded for Entry of Corrected
                                        Judgments

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID H. WELLES, JJ., joined.

Ardena J. Garth, District Public Defender; and Donna Robinson Miller, Christian Coder, and
Myrlene Marsa, Assistant Public Defenders, for the appellant, Tory Nelson Nocho.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Barry A. Steelman and Christopher D. Poole,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                                     OPINION

         The defendant was indicted on two counts of first degree felony murder and two counts of
first degree premeditated murder for the deaths of Lavonda Kay Holderby and Donna Holderby. The
defendant entered a best interest guilty plea to all counts of the indictment and three counts of theft
over $1000.1 The plea agreement specified that all sentences would be concurrent and a jury
sentencing hearing would determine whether the defendant’s sentence was life without possibility

        1
            Two of the theft counts were prior, unrelated charges.
of parole or life imprisonment. The sentence on each theft charge was for four years. After a lengthy
sentencing trial, the jury returned a verdict of life imprisonment without possibility of parole.

       In this appeal the defendant challenges his sentence by asserting the trial court erred as
follows:
       (1) In denying the defendant’s motion to dismiss the notice to seek life without
           parole due to aggravating factors not being set forth in the indictment in light of
           Apprendi v. New Jersey and Ring v. Arizona; and,
       (2) Proceeding to a jury sentencing trial pursuant to the plea agreement when the
           State had not filed notice to seek life without possibility of parole in regard to
           Lavonda Kay Holderby prior to the defendant’s plea of guilty.

                                       Factual Background

        Although this was a sentencing trial, extensive proof regarding the offenses was presented.
The defendant had given a statement confessing to the murder of Lavonda Kay Holderby and her
sixteen-year-old niece, Donna Holderby, as well as the theft of money from Burger King and
Lavonda Kay Holderby’s vehicle. The defendant’s contention at the sentencing hearing was that,
though he admitted moral and legal responsibility for the offenses, he had not personally murdered
the victims. In sentencing the defendant to life without possibility of parole, the jury approved all
proposed aggravating factors as to both victims, thus rejecting the defense theory. This summary
will accordingly present the facts in the light most favorable to the State. See State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003).

        Lavonda Kay Holderby’s husband, Larry Holderby, went to the Burger King in Chattanooga
on December 26, 1999, at approximately 6:30 a.m. He ate breakfast and visited with his wife and
her sixteen-year-old niece, Donna Holderby. He left between 7:30 and 8:00 a.m. and saw no one else
in the restaurant except the three employees, Lavonda Kay, Donna, and the defendant. Later proof
established that Donna Holderby suffered from mild mental retardation with an IQ score of 59.

        Barbara Higgins and two companions entered the Burger King at approximately 8:00 a.m.
that morning. Mrs. Higgins initially saw all three employees. Later, Lavonda Kay expressed
apprehension as to Donna’s whereabouts. Ms. Higgins looked in both bathrooms, then went outside
searching for Donna without success. When Ms. Higgins returned, the defendant told her they had
found Donna in the freezer. Ms. Higgins’ group left at approximately 8:45. During this period, one
other individual came in, obtained an order, and left.

        Paula Williamson was the manger of the Burger King restaurant. At 8:30 on December 26th,
she received a call from Lavonda Kay Holderby concerning ordering supplies. Mrs. Holderby
sounded normal and not in distress. Later that day at 3:00 p.m., she was called by her district
supervisor inquiring why the restaurant was closed. Ms. Williamson then took steps to have the
police notified. Later she went to the Burger King and identified the victims by viewing digital
photographs. Ms. Williamson also provided the police with the defendant’s address.


                                                -2-
       Officers found the defendant at his apartment and received consent to search the residence.
A towel with blood stains was found and seized. Later DNA testing showed that the blood on the
towel was from both victims. The defendant was taken into custody and, in a taped interview,
confessed to the double murder and thefts. In addition, the defendant did a taped walk-through
explanation of events at the crime scene.

        In his confession, the defendant admitted striking Lavonda Kay Holderby in the head with
a hammer three or four times with sufficient force to break the handle. While Mrs. Holderby was
knocked out, the defendant stated he “tended to Donna” by beating her, strangling her with a black
cord, and bashing her head against a wall. Eventually, he cut Donna’s throat with a cutting knife.

         The defendant stated he returned to Mrs. Holderby and made her remove the money from the
safe. The defendant forced her to the stockroom and had her lie down. The defendant then threw
a gallon of pickles at her head and strangled her with a black computer cord. After placing a towel
over Mrs. Holderby’s face, he stabbed her multiple times with a pair of scissors. He said that Mrs.
Holderby was still alive when he left. The defendant took the money, turned out the lights, locked
the doors, and left in Mrs. Holderby’s car. After changing clothes at his apartment, the defendant
left, abandoned Mrs. Holderby’s car, and then walked to his mother and stepfather’s house.

        Dr. Frank King, the Hamilton County Medical Examiner, testified concerning the autopsy
results on the two victims. He attributed Donna Holderby’s cause of death to multiple injuries
including asphyxia, due to fracture of the trachea and ligature strangulation. Also, she suffered
multiple blunt impact injuries to the head. Dr. King stated that any of these injuries alone were
sufficient to cause death. He opined that Donna could have survived the throat incision had it been
the only injury and had she received prompt medical attention.

        Dr. King attributed the cause of Lavonda Kay Holderby’s death to multiple stab wounds,
multiple blunt impact head injuries, and asphyxia due to ligature strangulation. He stated that any
of these could have independently caused death.

        Dr. Keith Alan Caruso, a forensic psychiatrist, testified on behalf of the defendant. Dr.
Caruso stated that the defendant gave him a statement of the events surrounding the homicide which
was in conflict with the defendant’s earlier confession. Dr. Caruso said the defendant acknowledged
his moral and legal responsibilities for the offenses but claimed that the victims did not die at his
hands. The defendant claimed that he had suggested a robbery of the Burger King to his stepfather.
The stepfather then proposed a scheme of robbery but events did not follow the plan and the
stepfather killed both victims while the defendant stood by and watched the murders. Dr. Caruso
opined that if the defendant had previously given a false confession, that it could be attributed to the
defendant’s fear of the stepfather that resulted from past abusive behavior by the stepfather.

        After deliberation, the jury returned a verdict of life without possibility of parole as to both
first degree murder charges. The jury found three aggravating factors concerning the murder of
Lavonda Kay Holderby and four aggravating factors regarding Donna Holderby.


                                                  -3-
                                            Indictment

        In his first issue, the defendant contends that the United States Supreme Court rulings in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), require that the aggravating
factors be set forth in the indictment.

       The holdings of Apprendi and Ring were summarized in this fashion: “‘If a State makes an
increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact - no
matter how the State labels it - must be found by a jury beyond a reasonable doubt.’” State v.
Holton, 126 S.W.3d 845, 864 (Tenn. 2004) (quoting Ring, 536 U.S. at 602, 122 S. Ct. at 2439).

       Following the release of Apprendi, our supreme court stated, “Neither the United States
Constitution nor the Tennessee Constitution requires that the State charge in the indictment the
aggravating factors to be relied upon by the State during sentencing in a first degree murder
prosecution.” State v. Dellinger, 79 S.W.3d 458, 467 (Tenn. 2002).

        The defendant asserts that the later released decision in Ring invalidates the Dellinger
holding. This argument has been considered and rejected. “Ring does not stand for the broad
proposition that aggravating circumstances must be charged in the indictment to satisfy constitutional
standards.” Holton, 126 S.W.3d at 863. See also State v. Carter, 114 S.W.3d 895, 910 n.4 (Tenn.
2003) (reaffirming Dellinger and rejecting the claim that Ring requires aggravating circumstances
be included in the indictment).

       In light of the foregoing authority, we find no merit in this issue.

              Notice Pursuant to Tennessee Code Annotated Section 39-13-208

       The defendant next argues that it was error to allow the State to seek a sentence of life
without parole when the State had not filed notice pursuant to Tennessee Code Annotated section
39-13-208 prior to the entry of the guilty plea.
       Notice of penalty to be sought for capital offenses. --
       (a) Written notice that the state intends to seek the death penalty filed pursuant to
           Rule 12.3(b) of the Tennessee Rules of Criminal Procedure shall constitute notice
           that the state also intends to seek as a possible punishment a sentence of
           imprisonment for life without possibility of parole.
       (b) Where a capital offense is charged in the indictment or presentment and the
           district attorney general intends to ask for the sentence of imprisonment for life
           without parole, written notice thereof shall be filed not less than thirty (30) days
           prior to trial. If the notice is filed later than this time, the trial judge shall grant
           the defendant, upon motion by the defendant, a reasonable continuance of the
           trial. The notice shall specify that the state intends to seek the sentence of
           imprisonment for life without possibility of parole and the notice shall specify the


                                                 -4-
           aggravating circumstance or circumstances the state intends to rely upon at a
           sentencing hearing. Specification may be complied with a reference to the
           citation of the circumstance or circumstances. Such notice shall be in writing and
           filed with the court and served on counsel.
       (c) If notice is not filed pursuant to subsection (a) or (b), the defendant shall be
           sentenced to imprisonment for life by the court if the defendant is found guilty
           of murder in the first degree.
       (d) The defendant and the state of Tennessee may enter into a plea agreement
           whereby the defendant is sentenced to imprisonment for life without possibility
           of parole, pursuant to the provisions of Rule 11 of the Tennessee Rules of
           Criminal Procedure.

       Our review of the appellate record reveals that the State filed notice pursuant to Tennessee
Code Annotated section 39-13-208 on September 13, 2000, as to Counts three and four concerning
the murder of Donna Holderby.

        On January 11, 2004, the defendant entered a best interest plea of guilty on all counts which
specifically incorporated an agreement whereby a “jury will determine a sentence of life or life
without parole.”

       The defendant, on September 5, 2002, filed a motion seeking to exclude any physical
evidence concerning Lavonda Kay Holderby, due to the lack of notice being filed in accordance with
Tennessee Code Annotated 39-13-208.

        Notice of intent to seek life without possibility of parole and supporting aggravating factors
was filed by the State as to both victims on September 12, 2002.

       On September 16, 2002, counsel for the defendant moved to strike his motion seeking to
exclude the evidence concerning Lavonda Kay Holderby. The motion was stricken, and an order was
subsequently entered reflecting this action.

        Not only did the defendant waive this issue by voluntarily conceding it, but he also failed to
raise the issue in the Motion and Amended Motion for New Sentencing Trial. Since this issue was
never presented to the trial court, it is barred from consideration on appeal pursuant to Tennessee
Rule of Appellate Procedure 36(a).

       We note that the judgment forms do not reflect merger of the first degree premeditated
murders and first degree felony murders. In addition, the indictment classification and classification
on convictions are erroneously marked as Class A instead of first degree murder.




                                                 -5-
                                        Conclusion

      Having found no error after a thorough review of the record, we affirm the sentence as
imposed. We remand the case for entry of corrected judgments in accordance with this opinion.




                                                   ___________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




                                             -6-
