         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  October 18, 2000 Session

               STATE OF TENNESSEE v. RICHARD M. FAR, JR.

                Direct Appeal from the Circuit Court for Rutherford County
                        No. F-45821    James K. Clayton, Jr., Judge



                    No. M1999-01998-CCA-R3-CD - Filed March 1, 2001


Defendant, Richard M. Far, Jr., was convicted by a Rutherford County jury of Class D forgery of a
document valued at more than $1,000. Subsequently, the trial court sentenced Defendant as a Range
III persistent offender to ten (10) years to be served consecutively to Defendant’s sentence in an
arson case (F-45893). Defendant raises two issues on appeal: 1) whether the trial court erred in
excluding Defendant from his trial and sentencing hearing and 2) whether the trial court properly
considered the sentencing guidelines in sentencing Defendant. After a review of the record, we
reverse the judgment of the trial court and remand this matter for a new trial.

                          Tenn. R. App. P. 3 Appeal as of Right;
                   Judgment of the Circuit Court Reversed and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER , JJ., joined.

Gerald L. Melton, District Public Defender; and Russell N. Perkins, Assistant Public Defender, for
the appellant, Richard M. Far, Jr.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and John W. Price, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

       On May 2, 1998, Defendant was arrested on charges unrelated to this appeal, at the
Greyhound Bus Station in Murfreesboro, Tennessee, by Officer Andrew Darnell of the Murfreesboro
Police Department, while trying to board one of the buses. Upon searching the Defendant, Officer
Darnell found Defendant’s driver’s license and a personal check in the amount of $2,800. Officer
Darnell turned the Defendant and the items he found on the Defendant, over to Detective Nathan
McDaniel. Detective McDaniel testified that upon looking at the check, he knew from his training
that it was a computer generated forgery, because it did not have the perforated edges found on all
checks other than U.S. Government checks. Detective McDaniel stated that the check appeared to
be a business check for StaffMark, with a handwritten signature that had been scanned on a computer
and printed on the check.

        Detective McDaniel testified that he questioned Defendant about his presence in
Murfreesboro, with a Virginia driver’s license and a checkbook with a North Carolina address.
Defendant told Detective McDaniel that his Lincoln Continental was being repaired by Alexander
Ford in Murfreesboro. McDaniel contacted Alexander Ford and discovered that Defendant’s vehicle
was at Alexander’s Ford, and that Defendant had a repair bill of $2,632.57. After McDaniel told
Defendant that he was being charged with forgery, Defendant refused to talk anymore and asked for
a lawyer.

        McDaniel used the address information on the check to contact StaffMark in Burlington,
North Carolina. He spoke with Diane Kalota, the accounting manager for the Eastern Division of
StaffMark, who oversaw the weekly payroll for the 1,200 people working through that StaffMark
office.

        Kalota testified, at trial, that StaffMark had employed Defendant for two days ending on
September 30, 1997, and that Defendant had worked a total of sixteen hours. She stated that
normally temporary employees earned $6.00 to $7.50 per hour. However, Defendant would be on
the lower end of that range. Kalota told the jury that the check recovered from Defendant appeared
to be a StaffMark check, but it was not printed on the type of paper regularly used by StaffMark to
print payroll checks. Kalota further noted that StaffMark, at no time, owed Defendant the $2,800
amount printed on the check.

         At the close of proof, the jury convicted Defendant of Class D forgery. On August 16, 1999,
the trial court held Defendant’s sentencing hearing. At the hearing, the State presented the testimony
of Darlene Steadman, a Corporal with the Rutherford County Sheriff’s Department. Corporal
Steadman testified that a part of her duties was to transport prisoners from the jail to the courthouse.
She further testified that, on the morning of the sentencing hearing, she asked Defendant if he was
going to court, and Defendant said he was not. At the conclusion of the hearing, the trial judge
sentenced Defendant as a Range III persistent offender to ten (10) years in jail, to be served
consecutively to Defendant’s twelve (12) year sentence in case number F-45893.

                                             ANALYSIS

                    I. Right to Be Present at Trial and Sentencing Hearing

A. Absence at Trial

       Defendant contends that the trial court committed reversible error when it overruled his trial
counsel’s objection and excluded him from his trial. We agree.


                                                   2
        A defendant has a right under both the federal and state constitutions to be present during his
trial. See State v. Muse, 967 S.W.2d 764, 766-67 (Tenn. 1998) (citing U.S. Const. amends. V, VI,
XIV; Tenn. Const. art. I, s 9). In addition, a defendant has a statutory right to be present during
trial. Muse, 967 S.W.2d at 767 (citing Tenn. R. Crim. P. 43(a)). “Presence at trial means that the
defendant must be present in court from the beginning of the impaneling of the jury until the
reception of the verdict and the discharge of the jury.” Muse, 967 S.W.2d at 766 (citation and
internal quotations omitted).

       However, the right to be present at trial can be waived by a defendant. Id. at 767. Tennessee
Rules of Criminal Procedure Rule 43 states in relevant part:

    (a) Presence Required. Unless excused by the court upon defendant's motion, the
    defendant shall be present at the arraignment, at every stage of the trial including the
    impaneling of the jury and the return of the verdict, and at the imposition of sentence,
    except as otherwise provided by this rule.

    (b) Continued Presence Not Required. The further progress of the trial to and including
    the return of the verdict and imposition of sentence shall not be prevented and the
    defendant shall be considered to have waived the right to be present whenever a
    defendant, initially present:

    (1) Voluntarily is absent after the trial has commenced (whether or not he or she has
    been informed by the court of the obligation to remain during the trial), or

    (2) After being warned by the court that disruptive conduct will cause the defendant to
    be removed from the courtroom, persists in conduct which is such as to justify exclusion
    from the courtroom. If a trial proceeds in the voluntary absence of the defendant or after
    the defendant's removal from the courtroom, he or she must be represented in court by
    competent counsel; and, if the defendant has been removed from the courtroom, he or
    she shall be given reasonable opportunity to communicate with counsel during the trial.
    If a trial is proceeding with the defendant excluded from the courtroom because of
    disruptive conduct, the court shall periodically determine at reasonable intervals whether
    the defendant will then signify willingness to avoid creating a disturbance if allowed to
    return to the courtroom and shall permit such return when the defendant so signifies and
    the court reasonably believes the defendant.

        Tenn. R. Crim. P. 43. (emphasis added).

        In order for a waiver of a constitutionally granted right to be valid, it must be “voluntarily,
knowingly, and intelligently” given. State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). The
knowing and voluntary waiver includes the intentional relinquishment or abandonment of known
rights. State v. Pearson, 858 S.W.2d 879, 887 (Tenn. 1993); Johnson v. State, 834 S.W.2d 922, 923
(Tenn. 1992). The record of a waiver of a defendant's right “must affirmatively demonstrate that his
decision was both voluntary and knowledgeable, i.e., that he has been made aware of the significant

                                                  3
consequences of such a [waiver]; otherwise, it will not amount to an ‘intentional abandonment of
a known right.’” State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). The Court will not presume
a waiver of important constitutional rights from a silent record. See Johnson v. State, 834 S.W.2d
at 923. Further, the right of a defendant to be present at his trial, “is so fundamental that procedural
safeguards must be employed on the record to insure that the defendant's waiver of the right to testify
was made voluntarily, knowingly, and intelligently. See Momon v. State, 18 S.W.3d 152, 160 n.11
(Tenn. 1999) (quoting, State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77, 81 (1988)). The mere
absence of the Defendant, at the time his case is called for trial, is insufficient to constitute a waiver
of his right to be present. State v. Kirk, 699 S.W.2d 814, 819 (Tenn. Crim. App. 1985).

         The State contends that Defendant, who was in custody, voluntarily left the pretrial meeting
held in the jury room and in so doing waived his right to be present. Relying upon State v. Kirk, the
State argues that “[a]n accused who has notice of the time and place of the trial and of his right to
attend, and who nonetheless voluntarily absents himself, will be deemed to have waived his right to
be present.” Kirk, 699 S.W.2d at 819. Further, the State argues that this case is also similar to State
v. Marcus Anthony Robinson, No. 03C01-9512-CR-00410, Hamilton County (Tenn. Crim. App.,
Knoxville, July 16, 1997), wherein a defendant who was present during a jury-out hearing, left the
building prior to the start of voir dire. In Kirk and Robinson, this Court found that both defendants
had voluntarily waived their right to be present, because they knew the time and place for the start
of trial, but chose not to be present.

         We believe this case is clearly distinguishable from both Kirk and Robinson, because the
Defendant was in custody and unable to leave, unless ordered by the judge. In Kirk, the defendant
was not in custody, because he had managed to escape, when taken to see a pyschologist. Kirk, 699
S.W.2d at 815. In Robinson, the lead opinion, relying upon Kirk, found that the defendant’s initial
presence at trial was sufficient to make his departure (during a brief recess) a voluntary waiver of
his right to be present. See, Crosby v. United States, 506 U.S. 255, 260, 113 S. Ct. 748, 752 122 L.
Ed. 2d 25 (1993) ("[W]here the offense is not capital and the accused is not in custody, ... if, after
the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been
done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to
be present and leaves the court free to proceed with the trial in like manner and with like effect as
if he were present." (quoting Diaz v. United States, 223 U.S. 442, 455, 32 S. Ct. 250, 254 56 L. Ed.
500 (1912)) (emphasis added). However, we note that Judge Tipton’s concurring opinion in
Robinson correctly notes that the ruling in Kirk is suspect, in light of Crosby v. United States,
wherein the Supreme Court overruled the federal cases relied upon in Kirk.

        In Crosby, the defendant failed to appear for his trial and was unable to be found. The district
court found that the defendant had waived his right to be present and tried the defendant in abstentia.
Six months later, the defendant was apprehended and sentenced. The Circuit Court of Appeals
affirmed the district court, but the Supreme Court overruled both the appellate court and the district
court and remanded the case for a new trial. The Supreme Court, interpreting the language of
Federal Rules of Criminal Procedure 43, held:



                                                    4
              It is not necessary to invoke that maxim in order to conclude that Rule 43 does
      not allow full trials in absentia. The Rule declares explicitly: "The defendant shall
      be present ... at every stage of the trial ... except as otherwise provided by this rule"
      (emphasis added). The list of situations in which the trial may proceed without the
      defendant is marked as exclusive not by the "expression of one" circumstance, but
      rather by the express use of a limiting phrase. In that respect the language and
      structure of the Rule could not be more clear.

Crosby, 506 U.S. at 258-59, 113 S. Ct. at 751. The Supreme Court further made a clear distinction
between “pretrial and midtrial flight.” Id. at 261, 113 S. Ct. at 752. The Court expounded that when
a defendant voluntarily leaves, midtrial, “the defendant's initial presence serves to assure that any
waiver is indeed knowing.” Id. As for pretrial cases, the Court held that “[t]he language, history,
and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a
defendant who is not present at the beginning of trial.” Id. Finally, the Court noted that Rule 43’s
distinction between pretrial and midtrial flight was valid, because it “mark[s] the point at which the
costs of delay are likely to outweigh the interests of the defendant and society in having the
defendant present,” and insures that any waiver by a defendant is knowing and voluntary. Id.

         Based upon Crosby, we find this case is more properly compared to the recent Tennessee case
of State v. Ballard, 21 S.W.3d 258 (Tenn. Crim. App. 2000), in which the defendant, after engaging
in disruptive behavior during a pretrial meeting, was excluded from his entire trial. This Court held
that the defendant’s disruptive pretrial conduct did not constitute a valid waiver of his constitutional
and statutory right to be present during trial. Id. at 261-62. We also held that it was error to exclude
the Defendant since Tenn. R. Crim. P. Rule 43 required the trial court, after excluding a disruptive
defendant, to periodically determine whether the defendant was willing to return to the courtroom.
Id.

        Similarly, the Defendant in the case sub judice, was disruptive during a pretrial meeting in
the judge’s chambers. The record reflects that the following colloquy occurred in chambers, prior
to the start of Defendant’s trial:

       Defendant:      I hate you, you know.
       Deputy:         Fine with me.
       Court:          Who are you talking to, Mr. Far?
       Defendant:      I’m talking to you, her, and him, since you want to know so much.
       Court:          Well, I’m sorry you feel that way.
       Defendant:      I especially hate you. And I know all of y’all hate n-----s, don’t you?
       Court:          No, sir, we don’t.
       Defendant:      Yes, sir, you hate n-----s, and you’re probably a Ku Klux Klan.
       Court:          No, I’m not a member of the Klan, never have been.
       Defendant:      You wouldn’t admit it no way, would you?
       Court:          Yes, I would admit if I was.
       Defendant:      You hate n-----s and you know it.
       Court:          No, sir, I don’t hate n-----s. In fact, I don’t like to use that word.

                                               5
Defendant:    I bet you don’t. I bet you don’t have a problem using it when you’re
              talking to your buddies.
Court:        I’ll ask you to find one of my buddies that ever heard me use that
              word. I don’t like to hear it.
Mr. Perkins [Defense Counsel]:        Judge, we are here today in felony case 48521.
Court:        Yes, sir.
Mr. Perkins: Charging Mr. Far with the offense of forgery in an amount between
              $1,000 and $10,000. Judge as you may recall, Mr. Far had a trial in
              another case, another indictment, in February. At that time he refused
              to come into the courtroom, refused to cooperate with me or with
              anyone else, for that matter, and we had a trial in his absence and a
              sentencing hearing back in March.
Defendant:    I hate your guts.
Mr. Perkins: And then at--
Defendant:    You’re a racist. I hate you.
Mr. Perkins: Then we have this case that was set for today.
Defendant:    I hate you. I hate the way you look. I hate the way you smell.
Court:        Mr. Far, if you want to stay in here, you’re going to have to shut up.
              Go ahead, Mr. Perkins.
Mr. Perkins: Mr. Far has thus far refused to talk with me about this case. I sent
              word out there to him yesterday to ask if he would talk with me about
              this case. The word I received was that he did not wish to see me or
              speak with me. And I think from his actions here today you can see
              that that probably is going to be his position in this. I can tell the
              court that you know, as far this particular case goes, we have a jury
              here. I have some clothes for Mr. Far if he wants to participate in this
              trial, and we can go ahead with it today or -- you know, I don’t know
              what he wants to do in this case because he’s refused to talk to me
              about it.
Court:        Well, let me ask him a question or two. Mr. Far do you understand
              you have the right under the constitution--
Defendant:    Why don’t you give a right to a new lawyer, man, like I been asking
              you since I’ve been coming in here?
Court:        Mr. Far--
Defendant:    Why don’t you give me that right? If you’re not going to give me that
              right, you might as well take me back.
Court:        Take him back.

....

Deputy:        He wants to go back to jail.
Court:         Let him go back to jail. He wants to go back to jail, we’re going to
               send him back to the jail. . . .


                                          6
       From the record, it appears Defendant was returned to jail, while the judge and counsel
adjourned to the courtroom to select and swear in a jury and proceed with trial. Prior to the start of
testimony, defense counsel moved for a mistrial, due to the trial proceeding without the presence of
the Defendant. The trial judge denied the motion for mistrial.

         There is no question that Defendant's behavior during the pretrial meeting in the jury room
was rude, disruptive and disrespectful. However, we conclude that Defendant's actions did not
constitute a Rule 43(b) waiver of his fundamental right to attend his trial. First, Rule 43(b)(1)
expressly provides that waiver occurs when a defendant “voluntarily is absent after the trial has
commenced.” (emphasis added). Second, Rule 43(b)(2) clearly states that waiver occurs when “a
defendant, initially present ... [a]fter being warned by the court that disruptive conduct will cause
the defendant to be removed from the courtroom, persists in conduct which is such as to justify
exclusion from the courtroom.” (emphasis added). Thus, the obvious undertone of the language in
Rule 43(b) is that the rule only allows a trial court to prevent a defendant from continued attendance
at his trial when the defendant was initially permitted to attend the trial, but either voluntarily chose
to abstain from the trial or engaged in disruptive behavior during the trial.

         Here, Defendant did not voluntarily abstain from his trial “after” the commencement of the
trial. Also, Defendant was not “initially present” and he did not engage in disruptive behavior during
trial. Instead, Defendant engaged in disruptive pretrial behavior outside of the courtroom and he was
never allowed to attend any portion of his trial. It appears that the trial court attempted to make
Defendant aware of his constitutional right to be present at trial, only to be interrupted by the
Defendant. However, waiver of a fundamental right must be done “voluntarily, knowingly and
intelligently.” Such a waiver implies that, after acquiring the necessary knowledge and essential
facts, the defendant, upon his own volition, intentionally chose to abstain from his trial. Hence,
trial courts should move cautiously to safeguard the constitutional and statutory rights of an accused;
rather than move hastily in deciding to try a defendant in abstentia.

       There is a long-standing presumption against waiver of fundamental constitutional rights.
See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938). A
fundamental constitutional right may only be waived personally by the defendant and will not be
presumed from a silent record. Mackey, 553 S.W.2d at 340. In State v. Muse, our supreme court
held that a defendant could waive his right to be present during voir dire, if the defendant had
“knowledge of the right,” and “personally waive[d] the right either in writing or on-the-record in
open court” prior to the start of voir dire. See, 967 S.W.2d at 768.

         Likewise, we find that in order for a defendant to waive his pretrial right to be present at any
of the “critical stages” of his trial, there must be proof in the record, that : (1) the defendant was
properly informed of the right to be present, as well as of the consequences of voluntarily waiving
this right; and (2) the defendant must either provide the court with a written statement or an oral
statement on the record attesting to the voluntary waiver of the right to be present. Here, there is no
proof in the record to indicate that Defendant, pretrial, voluntarily waived his right to be present at
trial, after being informed of the right. Although it appears that the trial court attempted to explain
Defendant’s constitutional and statutory rights, we find that the court neither received an effective

                                                   7
waiver from Defendant nor attempted to obtain such a waiver prior to or at the start of voir dire. A
statement by a jailor that Defendant wanted to “go back to jail” was not sufficient to constitute a
knowing, voluntary and intelligent waiver of Defendant’s right to attend his trial.

        Even if we were to find that Defendant’s disruptive conduct during the pretrial meeting was
an initial waiver of his right to be present at trial, we still find that Defendant’s rights, pursuant to
Rule 43(b)(2), were violated. When a defendant is excluded from his trial, because of disruptive
conduct,

                . . . he . . . shall be given reasonable opportunity to communicate with counsel
        during the trial. If a trial is proceeding with the defendant excluded from the
        courtroom because of disruptive conduct, the court shall periodically determine at
        reasonable intervals whether the defendant will then signify willingness to avoid
        creating a disturbance if allowed to return to the courtroom and shall permit such
        return when the defendant so signifies and the court reasonably believes the
        defendant.

Tenn. R. Crim. P. 43(b)(2). Here, the record clearly reflects Defendant’s desire not to communicate
with his court appointed attorney. However, the record also indicates that once the trial began (with
the start of voir dire), the trial court failed to “periodically determine” whether Defendant was
willing to cooperate with the conducting of his trial. Rather, the court merely presumed waiver from
Defendant’s absence and proceeded to hold voir dire and the trial without Defendant. The State
argues that this case is also similar to State v. Carruthers and Montgomery, ___ S.W.3d ___, No.
W1997-00097-SC-DDT-DD, 2000 WL 1824442, at *1 (Tenn. December 11, 2000). In that case,
the sentencing hearing was held at the penitentiary where Carruthers was being incarcerated.
Carruthers was aware that his sentencing hearing was about to commence, but Carruthers refused
to attend the hearing. The Tennessee Supreme Court held:

                 This is not a case where waiver was presumed from Carruthers’ mere absence
        at the time the sentencing hearing convened. The trial judge made every effort to
        persuade Carruthers to attend the hearing. On three separate occasions, the trial
        judge instructed Warden Bell to confer with Carruthers and attempt to persuade him
        to appear. On each of those occasions, the record reflects that Warden Bell assured
        Carruthers his restraints would be removed and emphasized his right to make a
        statement at the hearing. Under these circumstances, we have no hesitation in
        concluding that Carruthers waived his right to be present at sentencing.

Id., 2000 WL 1824442, at *43.

         Carruthers is distinguishable. In the case sub judice, the Defendant interrupted the trial
judge’s attempts to advise Defendant of one or more of his constitutional rights. The record is not
clear as to what the trial court intended to say to the Defendant. The Defendant asserted that, if the
trial judge was not going to appoint Defendant another lawyer, then the court “might as well take me
[Defendant] back. The trial court then stated, “Take him back.” The record shows that the Defendant

                                                   8
was then removed from the judge’s chambers and the judge immediately stated, “Let’s go select a
jury.” There were comments by the judge and the prosecutor, and then a deputy stated, “He
[Defendant] wants to go back to the jail.” Immediately, the trial court made the following
comments:

        The Court:      Let him go back to the jail. He wants to go back to the jail, and we’re
                        going to send him back the jail. He has complained about his lawyer.
                        However, he has never given me a reason why his lawyer could not
                        represent him. I know his lawyer to be a good lawyer, and I know his
                        lawyer will do the best job he can for him. Under the circumstances,
                        he is cutting his own throat, but that’s his right.

         In Carruthers, the trial judge sent the Warden to see the defendant three times regarding
defendant’s right to be present at his sentencing hearing. Also, the Warden testified under oath as
to this conversation with the defendant.

        In Defendant Far’s case, Defendant’s remark to “take me back” apparently meant take him
back to the courtroom or a holding area in the courthouse, rather than the jail, because the trial court
did not immediately order Defendant to be sent back to the jail. Only when a deputy made a
statement, not under oath or subject to cross-examination by Defendant’s lawyer, that Defendant
wanted to go back to jail, did the trial judge order the Defendant to be taken back to jail. In this case,
it does not appear from the record that the trial court made the same effort to persuade and advise
Defendant to attend the hearing, as did the trial court in Carruthers. Furthermore, this case does not
present the same level of proof regarding Defendant’s knowing desire to be absent from his trial, as
in Carruthers.

        We are mindful of and sympathetic to the frustration caused to the trial court and counsel for
both the State and the Defendant in this case. Members of this panel have, as practicing attorneys,
represented clients in litigation who were less than congenial. One member of this panel, as a trial
judge for ten years, also dealt with the problems associated with disruptive defendants. Each
attorney or judge who labors in our judicial system long enough will undoubtedly be required to face
a similar situation. However, the Constitutions of our nation and state, along with state procedural
rules, afford rights to and obligations on both the State and the defendant. These rights and
obligations must be preserved, protected and honored in bad times as well as good.

         Accordingly, having determined that the Defendant's statutory and constitutional rights were
violated by conducting voir dire and his full trial in his absence, we must next determine whether
the error committed by the trial court was harmless. Pursuant to both the federal and state
constitutions, the right of a Defendant to be present at his trial is essential to a fair trial. See, U.S.
Const. amends. V, VI, XIV; Tenn. Const. art. I, § 9. Presence permits a Defendant to confront and
observe witnesses; to make suggestions to his lawyer; to observe evidence introduced by the State;
and to absorb information that may be important on appeal or in a later petition for post-conviction
relief. Ballard, 21 S.W.3d at 262. Here, Defendant was not present at any portion of his trial and,
therefore, was not permitted to engage in any of the aforementioned actions. Thus, without an

                                                    9
effective, voluntary waiver, we conclude that Defendant's absence from his entire trial proceeding
“result[ed] in such prejudice to the judicial process that automatic reversal is required”. See State
v. Bobo, 814 S.W.2d 353, 358 (Tenn. 1991); see also, Tenn. R. App. P. 36(b).

B. Absence at Sentencing Hearing

        The Defendant also asserts that the trial court erred by holding the sentencing hearing in his
absence. First, we initially note that we cannot find where Defendant’s counsel, who was present
at the sentencing hearing, objected to the proceeding being held in the Defendant’s absence.
Secondly, defense counsel called as a witness, Corporal Darlene Steadman with the Rutherford
County Sheriff’s Department, who testified that on the date of the sentencing hearing, she knew that
she was to transport Defendant to his sentencing hearing. She testified that she asked the Defendant
if he was going to come, and he refused the offer for her to transport him to court for his sentencing
hearing.

         We have reversed the conviction and remanded for a new trial. Therefore, the issue as to
whether or not the trial court erred by holding the sentencing hearing in Defendant’s absence is moot.
However, we note that in the event there is another conviction and a necessary sentencing hearing
upon remand, that the trial court should ensure that the Defendant is aware of his constitutional and
statutory rights to attend his sentencing hearing, prior to holding the sentencing hearing in
Defendant’s absence. While the sworn testimony of the officer clearly shows that the Defendant
did not want to attend his sentencing hearing, there is nothing in the record to indicate that the trial
court affirmatively advised Defendant of his constitutional and statutory right to attend.
Furthermore, prudence might dictate that the trial court exercise its right to require the Defendant
to attend his sentencing hearing, subject to being removed if he becomes disruptive. In fact, we note
that following the direct examination of Corporal Steadman, the trial judge commented on his ability
to force Defendant to come to court (at the sentencing hearing or a trial):

                Q:    And what is your understanding about his intentions as far as coming
                      to court?
                A:    As far as I understand it, he’ll probably not set foot in this building
                      again.
                Mr. Osborne: That’s all I had, your honor.
                The Court:    That is unless we force him to come.
                The Witness: Force him to.

                                        II. SENTENCING

        The Defendant argues that the trial court imposed an excessive sentence and should have
ordered the sentence for forgery to be served concurrent with a prior arson conviction rather than
consecutive to the arson conviction. Even though we have reversed Defendant’s conviction and
remanded it for a new trial, we choose to address the sentencing issue in the event of further review
or for guidance on remand, in the event of a conviction following further proceedings.


                                                  10
        Other than the pre-sentence report, there was no further proof taken at the sentencing hearing
beyond the testimony of Officer Steadman. In addition to stating that the Defendant declined an
offer to be transported to court for his sentencing hearing, Officer Steadman testified that she had
previously transported the Defendant to court on more than one occasion. She stated that the
Defendant, on these occasions, had made numerous threats to her. She further asserted that the
threats involved the use of a deadly weapon even though Defendant was not in possession of a
deadly weapon at the time. She also confirmed that the Defendant, on these occasions, had made
threats to other persons involved in the prosecution of him, and that he was being housed in the
maximum security portion of the jail.

        Following closing arguments by counsel, the trial court summarized the facts in the case
resulting in the conviction for forgery. The trial court also stated that the Defendant, on a prior
occasion, had told the court, the prosecutor, and the Defendant’s lawyer, that he (Defendant) was a
“professional criminal.” The trial court acknowledged that the Defendant stated that he did not care
to speak with the court and the attorneys involved and that Defendant had cursed them and
“threatened anybody that happened to have been in the room.”

       In making its ruling, the trial court then concluded the sentencing hearing by stating as
follows:

       The Court:      But on the other hand, I don’t think he should be treated that much
                       differently than anybody else. But with his prior record, I have to find
                       he is a multiple, Range 3, persistent offender, if not a professional
                       criminal. And I would sentence him to ten years, as a Range 3, 45
                       percent offender.

                       And in view of the fact that I think he has spent most of his
                       life being a criminal, I fell [sic] like society demands that it
                       run consecutive to his prior offense of the arson, aggravated
                       arson - - or just arson, I believe.

       Defendant was sentenced to serve ten years as a persistent Range III offender. The
sentencing range for a Class D felony, persistent offender, is not less than eight nor more than twelve
years. Tenn. Code Ann. § 40-35-112(c)(4) (1997). At the sentencing hearing, the trial court did not
specify the list of felonies relied upon to sentence Defendant as a persistent Range III offender.

        The record does reflect that Defendant has a conviction for arson and the trial court ordered
the sentence on appeal in this case to be served consecutive to that arson conviction. Defendant’s
earliest conviction of record was in 1975, and the pre-sentence report reflects that this was a
conviction of “assault with intent to rob,” for which he received a sentence of three years of
incarceration from a Maryland Criminal Court. The pre-sentence report also reflects that he was
convicted of “passing an altered note” in a federal district court and was given a $50.00 fine, but any
incarceration from this conviction is unclear in the record. He was also convicted of “passing
counterfeit currency” in a federal district court in Baltimore and received three years of incarceration

                                                  11
and two years of federal probation. Defendant was convicted of forgery “up to $1000.00" in the
State of Wyoming, and was sentenced to not less than 14 months nor more than 36 months
confinement. He was also convicted of “mutilation of notes” in a federal district court in San Diego
and received three years of federal probation and a $100.00 fine. Finally, the pre-sentence report
reflects that Defendant was convicted of “attempted larceny - pickpocket” and received 18 months
of probation in a Maryland Criminal Court. However, the pre-sentence report also shows that the
Defendant was less than 18 years old at the time of the conviction of “mutilation of notes,”
“attempted larceny - pickpocket,” and “assault with intent to rob.” Also, the presentence report
reflects that he was both arrested and convicted on the same dates for the forgery, “mutilation of
notes,” and “attempted larceny - pickpocket” convictions in 1981, 1978, and 1976, respectively.

       Defendant was convicted of a Class D felony in this case and therefore, in order to have him
found to be a “persistent offender” pursuant to Tennessee Code Annotated section 40-35-107, the
State must show that he has a combination of “five (5) or more prior felony convictions within the
conviction class or higher, or within the next two (2) lower felony classes, where applicable.” Tenn.
Code Ann. § 40-35-107(a)(1) (1997).

        Furthermore, Tennessee Code Annotated section 40-35-107(b)(5) states that “‘prior
convictions’ includes convictions under the laws of other any other state . . . , if committed in this
state, would have constituted an offense cognizable by the laws of this state.” If the conviction in
the other state is not a named felony in Tennessee, the elements of the offense committed in the other
state must be used to determine what classification the offense is given in a Tennessee court. Tenn.
Code Ann. § 40-35-107(b)(5) (1997).

        Tennessee Code Annotated section 40-35-107(b)(3) states that when an offense is committed
as a juvenile, it cannot be considered as a prior conviction unless the juvenile is convicted of a felony
in criminal court. At most, Defendant has convictions for seven (7) prior felonies. However, the
information in the pre-sentence report is sketchy and questionable. It is impossible to tell from the
record whether the convictions for offenses committed as a juvenile and the convictions in states
other than Tennessee, meet the requirements necessary to classify Defendant as a “persistent
offender” under 40-35-107 (b)(3) and (b)(5). In the event of another sentencing hearing, in order to
uphold the sentence of “persistent offender,” the trial court should make additional findings of fact
based upon more conclusive evidence than what is presently contained in the pre-sentence report.
We note that before a Defendant can be sentenced within Range III, the court must find him, “beyond
a reasonable doubt,” to be a persistent offender. Tenn. Code Ann. § 40-35-107(c).

          In addition, the trial court did not state the specific enhancement factor used to elevate the
sentence from the presumptive sentence of eight years to ten years. In State v. Jones, 883 S.W.2d
597, 599-600 (Tenn. 1994), our supreme court said that "[t]o facilitate meaningful appellate review
. . . the trial court must place on the record its reasons for arriving at the final sentencing decision,
identify the mitigating and enhancement factors found, state the specific facts supporting each
enhancement factor found, and articulate how the mitigating and enhancement factors have been
evaluated and balanced in determining the sentence."


                                                   12
        We further note that the trial court, in ordering consecutive sentencing, stated that his reason
was the fact that “I think he has spent most of his [Defendant] life being a criminal.” Other than the
list of convictions in the pre-sentence report, there is nothing in the record to substantiate this
finding, even though the trial court made a finding that the Defendant once stated that he was a
professional criminal. The State did not present any transcript of that statement as evidence at the
sentencing hearing in this case. Sufficient proof of that might support consecutive sentencing under
Tennessee Code Annotated section 40-35-115(b)(1) (defendant is a professional criminal who has
knowingly devoted his life to criminal acts as a major source of livelihood), but there is not sufficient
evidence in the present record on appeal to support that finding.

                                         III. CONCLUSION

      For the foregoing reasons, the judgment of the trial court is reversed and this matter is
remanded for a new trial.


                                                        ____________________________________
                                                        THOMAS T. WOODALL




                                                   13
